PLJ 2015 Judgments

PLJ 2015 Karachi 1

Present: Muhammad Ali Mazhar, J.

Mst.DODA BEGUM--Plaintiff

versus

ISRAR HUSSAIN ZAIDI & others--Defendants

Suit No. 5 of 1998 and C.M.A. Nos. 9255, 6333 of 2013, decided on 21.2.2014.

Review--

----Not maintainable--Scope of--Compromise--Suit was not disposed of in terms of compromise and even if review application is dismissed, High Court has to pass orders for disposing of suit in terms of consent order. [P. 8] A

Review--

----Scope of--Review is very limited which must be confined strictly to errors apparent on face of record--Powers of review conferred upon High Court are not synonymous to powers conferred in appeal. [P. 8] B

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

----S. 114 & O. XLVII, R. 1--Review as permissible--Consent decree--Application for review to frustrate Court’s order--Review petition has always a limited scope which cannot be allowed to be an appeal in disguise--Wrong decision can be subject to an appeal to a higher forum but a review is not permissible on ground that Court proceeded on wrong preposition of law--A person who is seeking review of a judgment or an order must bring his case within four corners of provision of Order XLVII Rule 1, C.P.C.--Purpose of review cannot be a rehearing for purposes of seeing whether different conclusion on merits could be adopted--Consent decree or order cannot be reviewed on ground that decree was obtained by fraud, undue influence or coercion or on ground that lawyer has exceeded his authority in making promise--Provision of review under, CPC cannot be allowed to misuse in fashion that a party in Court first give its; consent and then in order to resile and withdraw from; consent order change or engage new advocate to come up with application for review to frustrate Court's order--If such tendency or practice is allowed to be encouraged then it will create never ending chaos and dispel sanctity attached to judicial orders even passed with consent of parties--It is not fair to Court to change a counsel and file a review petition because counsel engaged for filing review petition may not be aware of what had transpired in Court while deciding petition--It may amount to embarrassment to Court to hear grievance of a party, which has no basis and where a party does not furnish any material to substantiate grounds taken in review petition--Conduct of such a party is reprehensible and deserves not only to be deprecated but censured--A litigant cannot be permitted to drag Court in such a manner and force it to decide case in a particular manner he wants. [Pp. 8 & 9] C, D & E

Mr. Gharib Nawaz Daccawala, Advocate for Plaintiff.

Moulvi Iqbal Haider, Advocate for Legal heirs of Defendant No. 1.

Defendant Nos. 2 & 3 already declared ex-parte.

Date of hearing: 28.10.2013.

Order

In this suit for declaration, cancellation of documents, possession, permanent injunction and mense profit, the plaintiff has prayed for the declaration that she is absolute owner of House No. R-107, Sector 15-A/5, KDA Scheme Buffer Zone, North Karachi Township, Karachi admeasuring 120 sq.yardsvide conveyance deed dated 3.8.1987 and she was under the possession. It is further stated that in the year 1994, she went to Rawalpindi and in her absence she posted two watchmen namely, Akhtar Zaman and Muhammad Sultan for protection of the property in question. However when she returned back in the year 1996, she found that the Defendant No. 1 was in possession on the strength of a conveyance deed dated 28.9.1995. The plaintiff has further prayed for the cancellation of the sale deed executed by the Defendant No. 2 in favour of the Defendant No. 1 and the possession of the property in question.

1. This matter was partly heard by some other learned judges of this Court but hearing could not be concluded for one or the other reason. During the pendency of suit, the Defendant No. 1 expired and his legal heirs were brought on record (wife, daughter and a son) that are now in possession of the property. When this matter was fixed before me on 5.3.2013, the plaintiff and Mst.Saeeda Nighat Naqvi (widow of the Defendant No. 1) both were present along with their counsel and in their presence learned counsel appearing for parties made a request for a short date for making an attempt of amicable settlement and for exchange of offers. By consent the matter was adjourned to 6.3.3013. Again on 6.3.2013, the aforesaid parties were present along with their counsel when Mst.Saeeda Nighat Naqvi (widow of the Defendant No. 1) had agreed that the property in question may be sold out through Nazir of this Court and out of sale proceed, a sum of Rs.25 lakhs will be paid to the plaintiff and remaining amount will be paid to her. On the mutual agreement, the Nazir of this Court was appointed Commissioner to evaluate the property in question and obtain bids and submit the same in Court for approval. Mst.Saeeda Nighat Naqvi also agreed to deposit Rs.30,000/- tentatively with the Nazir of this Court for publication charges. It was further clarified in the order that the entire expenditure including publication charges and Nazir's fee will be deducted from the sale proceed and will be adjusted in the shares of parties accordingly.

2. However on 21.5.2013, the newly appointed advocate for the legal heirs of Defendant No. 1 filed an application (CMA No. 6333/2013) under Section 114 read with Section 151, CPC, in which it was prayed that the order dated 6.3.2013 may be recalled/reviewed as the wife of deceased Defendant No. 1 is not willing to get this matter disposed of on the basis of compromise and she wants the disposal of the suit on merits. On 6.8.2013, the learned counsel for the legal heirs of Defendant No. 1 requested that Mst.Saeeda Nighat Naqvi wanted to file additional affidavit in support of review application and he sought two weeks' time. On 29.8.2013, Moulvi Iqbal Haider, her learned counsel also requested for time to file application for condonation of delay in support of review application. However on 31.8.2013, instead of filing condonation application under Section 5 of the Limitation Act, he filed an application (CMA No. 9255/13) under Section 14 of the Limitation Act. In this application he took the plea that Mst.Saeeda Nighat Naqvi wrongly filed CMA No. 2899/2013 in which she supported the order dated 6.3.2013 but requested for slight modification that she may be allowed to dispose of the property by her own.

3. The learned counsel for the legal heirs of Defendant No. 1 referred to additional affidavit filed by Mst.Saeeda Nighat Naqvi in which she took the stand that her earlier counsel mislead her as she only understood that she would only pay Rs. 10 lakhs to Rs. 15 lakhs to the plaintiff from her own sources and the subject property will not be sold out as she is widow and she has no accommodation to live except the suit property.

4. The learned counsel argued that on 5.3.2013, Mst.Saeeda Nighat Naqvi was waiting for her case and suddenly her earlier counsel appeared and stated that the matter has been adhourned to 6.3.2013 for an amicable settlement. On 6.3.2013, she understood that the settlement between her and plaintiff is on the terms as her counsel informed her. In the affidavit Mst.Saeeda Nighat Naqvi admitted to have moved CMA No. 2899/2013, but now she insists that this application be ignored and the review application should be allowed so that the consent order dated 6.3.2013 should not remain in the field. It was further averred that the consent of Mst.Saeeda Nighat Naqvi was recorded due to misleading of her counsel as she was not aware regarding the compromise so, her newly appointed learned counsel requested that the order dated 6.3.2013 may be reviewed and the matter may be decided on merits. In support of his arguments, the learned counsel referred to following case-law:--

(1) 1990 PLC 609 (Assistant Director, Labour and Inspector of Factories, Hyderabad v. Naeem Ali Muhammad Munshi, Employer, Shalimar Food Products). This judgment has no relevancy with the facts and circumstances of the case in hand. In the cited judgment, the learned Tribunal only quoted the meaning of word 'Resolve', which means to convert a discord into concord, to make up one's mind, to decide, to determine upon, to pass a resolution etc. Above meaning was quoted from Cassell's English Dictionary.

(2) 2002 SCMR 144 (Mst.Anwar Bibi and others v. Abdul Hameed). Provision of Section 14 of the Limitation Act, 1908, applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature which makes it impossible for the Court to entertain it. Object behind Section 14 of the Limitation Act, 1908, is protection against the bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature.

(3) PLD 2000 S.C. 94 (K.E.S.C. Ltd. v. Lawari and 4 others). Sections 14 and 15 delay in filing appeal. Condonation of delay. Filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel. When constitutes a "sufficient cause". Notwithstanding the fact that Section 14 of the Limitation Act, 1908 in terms does not apply to proceedings of an appeal, if the appellant is liable to establish that he followed the remedy before a wrong forum in good faith the Court may condone such delay in filing of the appeal treating it as sufficient cause under Section 5 of the Limitation Act. What constitutes "sufficient cause" in such cases would depend on the facts of each case.

1. On the contrary, the learned counsel for the plaintiff argued that the order dated 6.3,2013 was passed with the consent of parties on which date not only Mst.Saeeda Nighat Naqvi was present in Court but her counsel was also present and after due deliberation between the plaintiff and her and with the consent of their counsel this order was passed. She agreed to make the payment and also consented to the order with open eyes and application of mind. At this stage there is no plausible reason for the review of the order. It was further argued that the review application is also time barred and no application for condonation of delay was moved under Section 5 of the Limitation Act. He further argued that the consent order is binding upon the parties. It was further argued that on one hand at belated stage, application for review has been moved for the reviewing or recalling the order dated 6.3.2013 but in support of the same order, she herself filed C.M.A No. 2899/2013 in which nothing was objected in the consent order rather she only sought modification to an extent that instead of selling the property through the Nazir, she may be allowed to sell the property. He further argued that C.M.A. No. 9255/2013 is also misconceived and irrelevant as there is no question of seeking any relief under Section 14 of the Limitation Act, as this section only pertains to exclusion of time of proceedings bona fide in Court without jurisdiction. This Court on its original side has the jurisdiction to try the civil suit hence the order passed by it cannot be treated as coram non judice. In support of his arguments, the learned counsel for the plaintiff relied upon the judgment reported in PLD 1986 S.C. 542 (Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another), in which it was held that order sought to be reviewed was passed on party's own undertaking and assent. Such order cannot be reviewed.

2. Heard the arguments. It is a matter of record that on 15.3.2013, Mst.Saeeda Nighat Naqvi, filed a statement in which she submitted that her advocate M/s. K.A.Wahab and Company is no more their counsel. On the same date, she had also filed C.M.A. No. 2899/2013 under Section 151, CPC duly supported by her personal affidavit sworn in and verified by the Identity Section (ISMS) of this Court. In this application, she sought permission of this Court to allow her to furnish surety in the sum of Rs.5 lakhs in the shape of National Saving Certificate Behbood Scheme within a week's time and also requested that the publication charges may be waived due to her financial hardship. She also stated in the application that she is ready to dispose of the said property by her own and pay the amount to the plaintiff within four months from the date of order on this application. She further prayed that original title documents of the suit property may also be returned back to her for selling of the suit property. It was further assured in the application that in case of failure, the plaintiff shall pay Rs.25 lakhs only to the defendant and shall dispose of the case property by herself. The crux of this application was that she sought the permission to dispose of the suit property by herself and pay the amount to the plaintiff within four months and in case of failure the plaintiff may be allowed to dispose of the property and pay Rs.25 lakhs to her and she will dispose of the suit property by herself (plaintiff).

3. This application was placed before me for orders on 21.3.2013. Copy of application was provided to counsel for the plaintiff for filing counter affidavit. It was further stated by the counsel for the plaintiff and defendant that two sets of original title documents executed in favour of both the parties for the one and the same property have been exhibited in the evidence by them and the same are available in two separate files so for maintaining the safety, by consent office was directed to keep both the files in the safe custody. On 23.4.2013 Mr.Ghulam Yasin, Advocate filed Vakalatnama for the legal heirs of Defendant No. 1 and requested for time for preparation. However, on the next date Moulvi Iqbal Haider, Advocate appeared for the legal heirs of the Defendant No. 1 and requested for adjournment.

4. On 20.5.2013, application for review was filed under Section 114, CPC. At the very outset, I would like to point out that for filing review application against the decree or order of this Court 20 days' time is provided under Article 162 of the Limitation Act. On the face of it, the review application is time barred, which was filed at least after the delay of more than two and half months. Even no application for condonation of delay was filed along with the application. On 29.08.2013, Mr. Iqbal Haider requested for time to file application for condonation of delay but instead of filing application for condonation he moved an application under Section 14 of the Limitation Act in which though a condonation was prayed but nothing was mentioned in the affidavit regarding the delay or the causes which prevented from filing the review application within the prescribed period of limitation. Even in this application it was prayed that the CMA No. 2899/2013 filed by Mst. Syeda Nighat Naqvi may be ignored as the same was wrongly filed. To my understanding, Section 14 of the Limitation Act has nothing to do with this case. At the same time, I am also of the firm view that the nomenclature of the application does not matter but what matters is the pith and substance of the application. If I treat this application under Section 5 of the Limitation Act even then it is necessary for this Court to see the grounds which may be considered the sufficient cause for condoning the delay. It is well settled that for seeking condonation of delay, the delay of each and every day has to be explained which has not been done in this case so on this sole ground the review application can be dismissed out rightly.

5. So far as the merits of the review application are concerned, I feel no hesitation to hold that the order dated 6.3.2013 was passed with the consent. Even in the CMA No. 2899/2013, she never asked for any review of the order but simply requested that she may be allowed to sell out the property and out of sale proceeds she will herself pay Rs.25,00,000/- to the plaintiff. It is clear from this application that said lady only wanted some modification in the order but not the review. The additional affidavit was filed by the same lady on 20.8.2013 along with the statement duly signed by her counsel. Even in paragraph (3) of the additional affidavit, it was stated that according to her understanding she was under the impression that she would only pay Rs. 10,00,000/- to Rs. 15,00,000/- to the plaintiff from her own source. The contents of this affidavit are suffice to demonstrate her will and intention that even today she is ready to pay 10 to 15 lacs to the plaintiff and the main reason for deviating or resiling from the consent order is nothing but to save some, amount which initially she agreed to pay to the plaintiff in the sum of Rs.25,00,000/-. On the one hand review application has been filed belatedly but on the contrary the contents of the application and additional affidavit irresistibly show that she never wanted to nullify the effect of the consent order rather she admitted to pay off the plaintiff though not the originally agreed amount mentioned in the consent order.

6. Though the review application is not maintainable and liable to be dismissed but in the interest of justice an important aspect cannot be ignored that on 6.3.2013 consent was recorded but in view of the consent, neither the suit was decreed nor it was disposed of in terms of compromise but after recording the consent further steps were to be taken including the depositing of publication charges, valuation of property and invitation of bids. So for all intent and purpose, the suit was not disposed of in terms of compromise and even if the review application is dismissed, this Court has to pass the orders for disposing of the suit in terms of consent order. Despite filing review application it is categorically, clear from the statement of Mst.Syeda Nighat Naqvi which she made in her additional affidavit and CMA No. 2899/2013 that she sought the permission to sell out the property by her own and pay off the plaintiff. In the additional affidavit she stated that she was under the impression to pay off 10 to 15 lacs to the plaintiff. These statements do not show the complete departure from the consent order but made in order to achieve slight variance. The case law cited by Mr. Iqbal Haider are distinguishable and no germane to the facts and circumstances of the present case.

7. At this juncture, I would also like to point out that the scope of review is very limited which must be confined strictly to the errors apparent on the face of the record. The powers of review conferred upon this Court are not synonymous to the powers conferred in appeal. The review is only permissible within the ambit of Section 114 or Order XLVII of the C.P.C. The Review petition has always a limited scope which cannot be allowed to be an appeal in disguise. It is maintainable only upon discovering of new and important piece of evidence or when there exists an error apparent on the face of record. A wrong decision can be subject to an appeal to a higher forum but a review is not permissible on the ground that the Court proceeded on wrong preposition of law. A person who is seeking review of a judgment or an order must bring his case within the four corners of provision of Order XLVII Rule 1, C.P.C. It goes without saying that the purpose of review cannot be a rehearing for the purposes of seeing whether different conclusion on merits could be adopted. A consent decree or order cannot be reviewed on the ground that the decree was obtained by fraud, undue influence or coercion or on the ground that the lawyer has exceeded his authority in making the promise. The provision of review under, CPC cannot be allowed to misuse in the fashion that a party in Court first give its consent and then in order to resile and withdraw from the consent order change or engage new advocate to come up with the application for review to frustrate the Court's order. If this tendency or practice is allowed to be encouraged then it will create never ending chaos and dispel the sanctity attached to the judicial orders even passed with the consent of the parties. In the case of Uda Ram, reported in AIR 1998 Rajasthan 186, the learned Court observed that it is not fair to the Court to change a counsel and file a review petition because the counsel engaged for filing review petition may not be aware of what had transpired in the Court while deciding the petition. It may amount to embarrassment to the Court to hear the grievance of a party, which has no basis and where a party does not furnish any material to substantiate the grounds taken in the review petition. The conduct of such a party is reprehensible and deserves not only to be deprecated but censured. A litigant cannot be permitted to drag the Court in such a manner and force it to decide the case in a particular manner he wants.

8. As a result of above discussion, CMA No. 6333/2013 filed under Section 114, C.P.C and CMA No. 9255/2013 moved under Section 14 of the Limitation Act both are dismissed. Since C.M.A No. 9255/2013 has been dismissed in which request was made to discard/ignore CMA No. 2899/2013 which is still pending, therefore, office is directed to fix the CMA No. 2899/2013 in Court for hearing according to roster so that after providing ample opportunity to the parties on this application as well, the same may be disposed of in accordance with law.

(R.A.) Order accordingly

PLJ 2015 Karachi 10 (DB)

Present: Faisal Arab & Salahuddin Panhwar, JJ.

WAJID ALI MEMON--Petitioner

versus

CIVIL JUDGE JUDICIAL MAGISTRATE NO. 1, TANDO MUHAMMAD KHAN and 5 others--Respondents

C.P. No. D-1845 of 2013, decided on 24.10.2013.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 353, 147, 149, 341 & 506(2)--Anti-Terrorism Act, 1997, Ss. 6/7--Quashing of FIR--No cognizable offence was made out and FIR was lodged without recording statement of victims and obtaining signatures--Wrongly issued direction for lodgment of FIR--Simple threats were not sufficient to constitute criminal intimidation--Legal and factual position--Question of--Whether Sections 6/7 of ATA and S. 506(ii), PPC were applicable--Domain and jurisdiction of police--Validity--FIR only means to bring law into motion so as to collect material as to whether, in reality, a cognizable offence is made out which requires its determination by a competent Court of law after a legal trial or it shall require a legal disposal at end of police which shall be subject to approval by Court--Administrative jurisdiction should only be exercised where subordinate functionary is found guilty of negligence in performing its function and not otherwise, which too, be not in a manner to pre-empt authority of subordinate functionary--Sections 6 and 7 of Act, are not applicable in matter--Ingredients of criminal intimidation, as defined under Section 503, PPC, are also missing in matter which must exist for application of Section 506(ii), PPC--It is settled principle of law that quashment of FIR could only be ordered when material available on record, if taken as gospel truth, yet does not provide a chance of accused being convicted for any offence--Proceeding culminating to F.I.R, are pending before trial Court, thus petitioner is at liberty to avail alternate remedy before trial Court-- Sections 6, 7 of ATA Section 506(ii) PPC are not applicable in matter in hand hence same are, accordingly, ordered to be deleted; consequently, jurisdiction lies to regular Court. [Pp. 15, 19 & 20] A, B, C, D, E & F

Mr. Ghulamullah Chang, Advocate for Petitioner.

Date of hearing: 24.10.2013.

Order

Salah-ud-Din Panhwar, J.--Through the instant petition, the petitioner seeks quashment of the FIR bearing Crime No. 199 of 2013 u/Ss. 353, 147, 149, 341, 506(2) PPC, S. 6/7 ATA of Police Station, Tando Muhammad Khan, on the plea that no such offence as alleged has been taken place and no cognizable offence is made out and the FIR is lodged without recording the statement of victims and obtaining the signatures.

1. Succinctly, the relevant facts, leading to the instant petition, are that on 6.9.2013; Respondent No. 5 filed CP No. S-536 of 2013 ("Re-Jai Ram Kolhi vs. DIG Hyderabad & Ors), wherein it was contended that on 1.9.2013 at 12.30 a.m four persons, intruded in the house of petitioner and taken away his son, alongwith chattels hence he approached to S.H.O and SSP concerned for redress, but no action was taken thereby filed petition and he, inter-alia, prayed as under:--

(i) Issue rule nisi and direct the Respondent Nos. 1 to 3 to recover and produce the detenue before this Honourable Court and after recording his statement, he may be set at liberty in accordance with law;

1. While issuing notices to the respondents, this Court issued directions as follows:--

"Let the concerned Magistrate to conduct raid at the otaq Respondent Nos. 4 to 7 to recover the alleged detenue or any other place at the pointation of petitioner. In case the alleged detenue is found there, he shall be handed over to the petitioner on identification with direction to produce him before this Court on 13.9.2013. In case the report submitted by the Magistrate shows that the detenue is recovered from any of the respondent, such respondent shall appear in person before this Court on the next date of hearing in case of failure to appear bailable warrants to follow. The petitioner is directed to accompany the Magistrate for pointation of the place to be raided by the Magistrate"

1. In pursuance of such order the Respondent No. 1 (Magistrate) conducted raid at the house of one Ghulam Hussain Memon on 10.9.2013, but not succeed to recover the detenue, thus, such report was placed wherein it was asserted that he alongwith petitioner and his counsel Mr. Ishaque Qureshi, proceeded to conduct the raid, at pointed place, meanwhile within a short span of time, a crowd of 40 to 60 peoples, converged there; they caused strong resistance, and did not allow him to enter in the house / otaq of Respondent No. 4. The entire mob was being led by brother of Respondent No. 4. Petitioner and his counsel immediately left the place, however, he remained there for 4 to 5 minutes; strong confrontation was offered by the mob and they, while issuing threats of dire consequences, tried to snatch the weapon from his gunman. Due to fear of life he departed from the said place and conveyed such information to the District Police. Thereafter, with the help of SHO(s) of different police stations, conducted search of the village but no recovery was effected. Such report was placed with the request of permission for registration of F.I.R, against the culprits, who offered resistance.

2. On raid report of learned Magistrate (Respondent No. 1), the learned Single Judge passed an order on 13.9.2013, the relevant portion thereof is reproduced hereunder:

The report suggests that brother of Respondent No. 4 has obstructed the Magistrate to comply with the orders of this Court, who led the mob of 40 to 60 people. He stopped the learned Magistrate from performing his duties in accordance with law. He has obstructed deliberately and caused hindrance in the administration of justice. He has violated the orders of this Court. Prima facie an attempt of the nature shown in the report comes within the parameters of Anti Terrorism Act as a sense of fear was created amongst the people of the vicinity. It is reported that they have tried to snatch the gun of the gunman and they have intimidated the learned Magistrate. Such type of incident can hardly be tolerated in compliance of the Court orders. Nobody is above the law. The brother of Respondent No. 4 should be taken to tasks. He has caused hindrance in compliance of the Court and in administration of justice. Prima facie he has willfully disobeyed and disregarded the orders of the Court and for about 105 minutes the orders of the Court were not complied. It appears that the brother of Respondent No. 4 considered himself above the law. Such incident took place in presence of the petitioner and his counsel, the gunman and learned Magistrate and officials whose names have been disclosed in the report. I, therefore, direct the concerned SSP to get the FIR registered for the offence for the offence, which have been committed including but not limited to the offence under Anti-Terrorism Act against brother of Respondent No. 4 who could be identified by learned Magistrate and his gunman. Such accused after registration of the FIR should be arrested and as far as brother of Respondent No. 4 is concerned, he should be brought to this, Court and after arrest since he has violated the orders of this Court, obstructed and caused hindrance in the administration of justice. I also direct that the statements of petitioner, his counsel, gunman and the learned Magistrate who, were present at the scene may be recorded and efforts should be made to identify those other culprits involved in this incident although one of them who is identified as brother of Respondent No. 4 has already been identified. He may or may not be the brother of Respondent No. 4 but could be identified by learned Magistrate. The entire exercise of registration of FIR and compliance thereafter, should not make more than 24 hours. Let the copy of this order be faxed to I.G, D.I.G. and S.S.P concerned for strict compliance. In case of non-compliance, action against those police officials, who are found responsible, shall be taken. No relaxation will be accepted as far as compliance of above order is concerned. (Underline is supplied for emphasis)

1. Thus, under compliance of the above order, the Respondent No. 3 on behalf of State lodged FIR bearing Crime No. 199 of 2013 under Sections 353, 147, 149, 341, 506(2), 114, PPC r/w Section 6/7 ATA at Police Station Tando Muhammad Khan; wherein raid report was reproduced as contents of FIR; thereafter as per directions investigation was carried out and accused were sent up for trial under Anti-Terrorism law.

2. Learned counsel for the petitioner has, inter-alia, contended that the learned Single Judge of this Court was not legally competent to pass the order for lodgment of FIR in a particular offence nor was legally authorized to issue direction to conduct the investigation in a prescribed manner; in the raid report the learned Magistrate has sought permission for registration of case but instead of granting permission the learned Single Judge wrongly issued direction to SSP for lodgment of FIR though such jurisdiction lies with Incharge Police Station (SHO); direction for including Sections 6/7 of the ATA were also not legally justified; learned single Judge assumed the jurisdiction of Incharge Police Station so also that of Investigating Officer which is not warranted by law hence the FIR lodged in consequence to such illegal and wrong assumption of jurisdiction is liable to be quashed or least the Section 6/7 of the ATA, being attracted, be ordered to be deleted and case be sent back to Court of ordinary jurisdiction.

3. In contra, the learned APG, while refuting the contention raised by counsel, agreed to the proposition that Sections 6 & 7, in instant case lacks, the basic ingredients, however, he maintained that petitioner can approach to the trial Court, by way of filing application under Section 23 of ATA Act, 1997 and further contended that this is not a case of quashment.

4. Before proceeding to the merits of this case, it would be noteworthy to refer to the relevant, provision(s), having nexus with this case. First comes the provision of Section 154 of the Code which explains the manner of a report of cognizable offence, thus it would be conducive to refer Section 154 of the Code:

"Section 154. Information in cognizable cases.--Every information relating to the commission of a cognizable offence if given orally to an Officer Incharge of a Police Station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."

The language of the provision of the Section 154 of the Code has been formed in such a manner by the Legislature that no discretion has been left with the Officer Incharge of a police station to refuse or avoid exercise of such mandatory jurisdiction but the only condition is that information should spell out commission of a cognizable offence. However, since the Court (s) are the ultimate guardian (s) of the rights of the individuals and in Criminal Justice System, thus the Court (s) enjoy the status of the Administrative Authority so as to have a check under writ jurisdiction, yet such administrative jurisdiction shall not give a legal right and authority to curtail the powers of statutory functionary (investigating authorities) nor would mean to interfere in the independent functions of authorities provided by law, unless it is surfaced that such exercise is patently contrary to the law, and is result of colourable exercise, reference can be made to the case of Ghulam Sarwar reported in 2010 SCMR 624.

1. We may add here that an offence continues to be an offence even if not reported timely or no informant comes forward therefore, it becomes the obligatory duty of the Incharge of police station to bring the law into motion as soon as it comes to his knowledge who does not have to wait for one to come to report the offence which has already come into his knowledge. Further, the law, nowhere, demands that before lodging an FIR there should be a prior permission, particularly where the offence is one to be reported to an ordinary police station, unless embargo is provided, under the Criminal Procedure Code, 1898 for particular sections. This is for the simple reason that FIR only means to bring the law into motion so as to collect material as to whether, in reality, a cognizable offence is made out which requires its determination by a competent Court of law after a legal trial or it shall require a legal disposal at the end of the police (investigating agency) which shall be subject to approval by the concerned Court. We can safely say that administrative jurisdiction should only be exercised where subordinate functionary is found guilty of negligence in performing its function and not otherwise, which too, be not in a manner to pre-empt the authority of subordinate functionary.

2. In case of Imtiaz Ahmed v Government of Pakistan (1994 SCMR 2142), it is held that:

"This Court, held, therefore, "that the continued control over the investigation exercised by the Court as in this case was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction."

Further, the Honourable Supreme Court of Pakistan in the case of Brig. (Rtd.) Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others (1994 SCMR 2142) laid down the principle much elaborately which is as follows:--

“In every investigation there are by and large three-different phases. First of all, the administrative phase; next, the judicial phase; and finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of starting his case before the final period; the execution. Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. But on the other side, and the other side is entitled to fairness just as the suspect is. Fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins".

1. The above guidelines make the wisdom of legislature explained whereby an FIR can well be lodged without hearing the proposed accused because in above guiding principles the Honourable Supreme Court has termed the accused as 'suspect' and such a suspect shall have an undeniable right of a proper investigation including bringing the defence of such a suspect on record.

In the above case, the Honourable Supreme Court further held that:

"In other words what the petitioner wanted the High Court to do was to assume the role of Investigator. This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court.”

1. In view of above touch stone, it is germane to mention that it is the domain and jurisdiction of the Police to carry out the investigation and submit report under chapter XIV of the Code, therefore, a High Court would not be legally justified while directing for lodgment of the FIR in particular sections; because determination of application of a particular section or offence could only be determined only when raised and not otherwise, particularly not before recording of FIR, else it would not only prejudice the right of the authorized police officer but also of the Investigating Officer and even may influence the Court (s) taking cognizance or that which will ultimate deal with trial of the case which would seriously prejudice the right of the accused regarding fair trial, as protected by Article 10-A of the Constitution.

2. Now, we would like to examine as to whether the Sections 6/7 of the ATA and 506(ii), PPC are applicable in this case or otherwise. While examination of such applicability, it would be conducive to refer the provision of Section-6 of the Anti-Terrorism Act, 1997 which defines the `terrorism' which is as follows:--

"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 or insecurity in society; or

(c) the use or 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).

Sub-section-(2)--An "action" shall fall within the meaning of sub-section (1), if it;

(a) involves the doing of anything that causes death;

(b) ………………………..

(c) ………………………..

(d) ………………………..

(e) ………………………..

(f) ………………………..

(g) ………………………..

(h) ………………………..

(i) ………………………..

(j) ………………………..

(k) ………………………..

(l) ………………………..

(m) Involves serious coercion or intimidation of a public servant in order to force him to discharge or refrain from discharging his lawful duties; or

(n) Involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.

(o) ………………………..

(p) ………………………..

Sub-section (3)--The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section-1(c) is satisfied.

1. The plain reading of the sub-section (3) of the Section-6 of the Act, elucidate that action defined in sub-section (2) of Section 6, if qualifies the condition of involvement of the use of fire-arms, explosives or any other weapon, would fall within meaning of "Terrorism" as, defined under sub-section (2) of the Section 6. In case of Amir Khan v. The State reported in PLD 2005 K 344, this Court has decided similar issue, it would be advantageous to refer the relevant Paragraphs, 14, 15 & 16 of said dictum, same are as under:

"14. The second category of the definition of "Terrorism" has been given in sub-section (3). It means the use or threat of use of any action falling within the meaning of sub-section (2) and in doing so fire-arms, explosives or any other weapon is used, then it will become terrorism whether or not the purpose of advancing the religious, sectarian or ethnic clause. [Sub-section (1)(c))] is achieved or satisfied.

1. According to this sub-section if the act falling within any clause of the sub-section (2) is committed, in which fire-arms, explosives or any other weapon is used then it will also come within the definition of "terrorism", regardless of the fulfilment or satisfaction of the circumstances or purpose mentioned in sub-section (1)(c). (underlining is provided foe emphasis)

2. In this definition, the word "design" has not been used. Thus, the intention of the legislature clearly shows that for the offence falling within the scope of sub-section (3) the intention or mens rea is not an important factor or essential ingredient. The mens rea of clause 1(c) is also not necessary if the offence falling within the scope of clause 1(c) is committed with the use of fire-arms, explosives or any other, weapon.''

3. Thus, in the instant matter nowhere it is alleged that any of the person, forming mob, was armed with any weapon, therefore, alleged resistance, offered by the mob, cannot be said to be an act of Terrorism" within meaning of sub-section (2) of Section 6 of the Act. If the interpretation is made, otherwise, it shall result it in bringing every single case of simple resistance to a public official, within meaning of Section 6 of the ATA and this does not appear to be the objective of the enactment of the Anti-Terrorism Act. Here we would like to reproduce the relevant portion of the judgment passed by honourable Supreme Court of Pakistan in case of "Mohabbat Ali Vs State" (reported as 2007 SCMR 142) which reads as under:--

"In order to determine as to whether an offence would fall within the ambit of Section 6 of the Act, it would be essential to have a glance over the allegations made in the F.I.R, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under Sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act is to be seen. It is also to be seen as to weather the said Act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect."

1. Further, it is a matter of record that the learned Magistrate after short time, again completed the raid proceeding with help of the police without any resistance which also shows that there had not been created any sense of fear and insecurity. Thus, keeping in view the legal and factual position discussed hereinabove, we are of the view that Sections 6 and 7 of the Act, are not applicable in the matter. Moreover, it appears that, the ingredients of criminal intimidation, as defined under Section 503, PPC, are also missing in the matter which must exist for application of Section 506(ii), PPC. The Section 503, PPC defines criminal intimidation as under:

"503. Criminal intimidation. Whoever threatens another with an injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intention to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.”

The bare perusal of the above makes it elucidate that simple threats are not sufficient to constitute a criminal intimidation within the scope of this section unless it is caused that person to do an act who was not legally bound to do or to omit to do any act which that person was legally bound to do. Thus Section 506(ii), PPC, applied in the matter, also not applicable.

1. So far as to the plea of quashment, it is settled principle of law that that quashment of the FIR could only be ordered when the material available on record (collected by prosecution), if taken as gospel truth, yet does not provide a chance of accused being convicted for any offence, hence the principles, guiding exercise of such provisions should prima facie exist before insisting for quashment of an FIR. Further, it is surfaced that proceeding culminating to the

aforesaid F.I.R, are pending before the trial Court, thus the petitioner is at liberty to avail the alternate remedy before the trial Court.

1. In view of above discussion we are of the firm view that Sections 6, 7 of the ATA Section 506(ii), PPC are not applicable in the matter in hand hence the same are, accordingly, ordered to be deleted; consequently, jurisdiction lies to the regular Court.

2. These are the reasons of the short order dated 24.10.2013, whereby instant petition was accepted partially.

(R.A.) Petition accepted

PLJ 2015 Karachi 20

Present: Syed Hasan Azhar Rizvi, J.

MianKAMRAN ILLAHI and another--Plaintiffs

versus

DIGRI SUGAR MILLS LIMITED,KARACHI and 2 others--Defendants

Suit No. 1177 of 2013 and CMA Nos. 10015, 13521, 13744, 14156, 13139 of 2013, 119, 199, 423 of 2014, decided on 21.2.2014

Specific Relief Act, 1877 (I of 1877)

----S. 54(c)--Sales of Goods Act, 1930), S. 58--Civil Procedure Code, (V of 1908), O.XXXIX Rr. 1, 2 & 4--Interim injunction--Review of order--Execution of agreements and issuing of post, dated cheques as surety--Delivery orders were treated as negotiable instrument and bearer can present at sugar mill for delivery--Mala fidely omitted dates and quantities of sugar supplied as office copy of delivery orders--Damages as alternative prayer, cannot seek specific performance of contract--Validity-- It is settled law that party seeking an interim injunction must show that a prima facie case exist in his favour; Court be satisfied that if injunction is not issued, irreparable damage or injury would be caused to such party; and, balance of convenience is in favour of grant of injunction--Admittedly, there is no dispute in respect of execution of agreements and that plaintiffs have paid entire sale consideration for supply of white refined sugar mentioned in agreements--Defendants had delivered agreed sugar have only annexed office copy of delivery orders with their suit confirm fact that defendants are creating third party interests, in sugar being subject matter of instant suit, by selling it to various buyers in glaring violation of High Court's order--When defendants had delivered commodity according to contract why they issued cheques to plaintiffs--All original delivery orders are also in possession of plaintiffs and defendants without taking original delivery orders transported sugar to plaintiffs--Factual controversy involved in matter requires deeper appreciation and cannot be decided at that stage without record of evidence of parties--Since damages have been calculated specific performance of agreements would not be granted--When a specified sum of damages has been claimed, one of necessary ingredients for grant of interim injunction vis-a-vis irreparable loss likely to be suffered by plaintiff was missing, injunction could not be granted--Since plaintiffs have claimed damages, no relief by way of temporary injunction could be granted--Under Rule 2 of Order XXXIX of CP.C, plaintiffs can apply to Court for a temporary injunction, to restrain defendants from committing breach of contract whether compensation is claimed in suit or not--Damages claimed by plaintiffs are in addition to relief of specific performance and is not claimed as an alternative relief--Loss or injury which plaintiffs would suffer in case defendants commit breach of agreement, cannot be calculated and proper course would be to restrain defendants from committing breach of contract pending decision of suit--Balance of convenience in instant case in such circumstances also lies in favour of plaintiffs--Moreover, under Order II Rule 2, CPC a plaintiff should ask for all possible remedies within one civil suit, as same is barred from filing an independent case for seeking a different remedy for same cause of action--Seeking damages as an alternative prayer cannot bar plaintiffs from seeking specific performance--Review application is allowed.

[Pp. 29, 30 & 31] A, B, C, D, E, F, G, H & I

Mr. Haider Waheed, Advocate for Plaintiffs.

Mr. Ijaz Ahmed, Advocate for Defendant No. 1.

Mr. Zeeshan Abdullah, Advocate for Defendants No. 2 & 3.

Date of hearing: 24.2.2014.

Order

By this order I propose to dispose of applications listed at Serial No. 1, 6, 8 and Nazir reports dated 16.12.2013 and 24.1.2014. CMA No. 10015/2013, under Order XXXIX Rules 1 & 2, CPC and CMA No. 423/2014 for review of order dated 09 01.2014 filed by the plaintiffs, whereas CMA No. 199/2014, under Order XXXIX Rule 4, CPC filed by Defendant No. 1 in the above-noted suit.

1. In nutshell the facts are that plaintiffs and the Defendant No. 1 had business relations for the last 13/14 years. The plaintiffs and Defendant No. 1 entered into six agreements for supply of 8917 metric tons of sugar for the year 2011-2012 against which an amount of Rs.375,500,000/- was paid in advance by the plaintiffs, which has been acknowledged by the defendants and as a security/surety issued post-dated cheques, details of the same are mentioned in the memo. of plaint, to the plaintiffs. It has been averred in the memo. of plaint that defendants approached the plaintiffs at the start of the season 2011-2102 requesting for rescheduling deliveries of sugar and repayment since the crop had been hit by flood and the plaintiffs keeping in view the genuine reason of flood agreed to reschedule the deliveries on their forward contracts, but the defendants failed on their promises and did not make the deliveries according to the revised schedule. It has been further averred in the memo. of plaint that the defendants again approached the plaintiffs for another grace period for the delivery of sugar and issued further post-dated cheques to replace the earlier ones and thereby novating the agreements to the extent of delivery schedule, however, when the time for delivery of sugar arrived, the defendants once again approached the plaintiffs for relaxation on delivery of sugar with promised that they will deliver the said sugar made in the upcoming seasons and plaintiffs again rescheduled the deliveries on their forwards contract after accepting further cheques dated 31.7.2013 of the same amount to replace the earlier ones. It has also been averred in the memo. of plaint that despite the above flexibility awarded to the defendants they had failed to supply sugar to the plaintiffs incurring further losses to the same in form of default on forward contracts amongst other things. The plaintiffs approached the defendants in light of the said breach, however the defendants did not agree to supply the sugar as promised in the said agreements. It is important to note that the breach of the Defendants has led the Plaintiffs defaulting on their forward contracts. Since the plaintiffs had made 100% advance payment to the defendants, they were financially incapable to procure the same amount of sugar from the market to satisfy the claims of the forward contracts thereby resulting in the loss of clientele and still practically impossible to procure the required amount of sugar from the open market i.e. 21542 Metric Tons of Sugar, and the only way of obtaining the said sugar to satisfy the forward contracts of the plaintiffs is for the defendants to supply the said amount of sugar to the plaintiffs. It has further been averred in the memo. of plaint that defendants apprehending any legal action from the plaintiffs malafidley filed a Civil Suit No. 1076/2013.

2. I have heard Mr. Haider Waheed, learned counsel for the plaintiffs, Ejaz Ahmed, learned counsel for the Defendant No. 1 and Mr. Zeeshan Abdullah, learned counsel for the Defendants No. 2 & 3.

3. Mr. Haider Waheed, advocate for the plaintiffs has advanced his arguments in support of their applications bearing CMA Nos. 10051/2013 and 423/2014 and against application filed by defendants Bearing No. 199/2014 under Order XXXIX Rule 4 r/w Section 151, CPC. He made reference to Paragraphs (2), (3), (4) & (5) of the memo. of plaint in Suit No. 1076/2013 filed by the defendants and contended that the defendants admitted the execution of agreements and issuing of post-dated cheques to the plaintiffs as security/surety. He further contended that the Defendants have not delivered sugar to the plaintiffs, in line with the said agreements and commitments made thereafter as the plaintiffs are in possession of the Original Delivery Orders of the sugar in question and the defendants have only attached 'Office Copies' with their plaint. He also contended that the delivery orders are treated as negotiable instrument(s), and the bearer can present the same at the sugar mill for delivery and only upon presentation of the delivery order the transport trucks of the bearer can enter the mill, and thereafter each truck is issued a gate pass for evidencing the confirmation of delivery. The defendants have falsely contended that the said sugar has been delivered and such is evidenced by the fact that the original delivery orders are in possession of the plaintiffs, and the defendants have not provided for any gate passes or documents identifying the trucks upon which the said sugar was delivered. It may be emphasized that only upon presentation of the delivery order the transport trucks of the bearer can enter the mill, and thereafter each truck is issued a gate pass for evidencing the confirmation of delivery which mentions the Truck No, Name of the Driver and his CNIC and the destination where the sugar is being transported. Hence if the defendant has supplied sugar to the plaintiff, it can be easily verified from the record of the Mill. He also argued that the defendants have mala fidely omitted the dates and quantities of the sugar supplied to the plaintiffs as the office copy of delivery orders attached by the defendants with their plaint in Suit No. 1076/13 are dated prior to the agreement(s) and/or prior to the maturity dates of the agreements. He further argued that in case the defendants did actually produce sugar and supplied the same to the plaintiffs in pursuance of the said agreements, why did they issue further cheques to secure payment of the same.

4. Learned counsel for the plaintiff submitted that the instant suit has been filed by the plaintiffs and this Court vide order datd 20.09.2013, restrained the defendants from creating any third party interests in respect of 21542 Metric Tons of Sugar and also ordered spot inspection and directed the Nazir of this Court to comply with the same. The Nazir conducted spot inspection, with police aid, and submitted a report dated 08.10.2013 before this Court, wherein it was stated that 4027 Bags containing Sugar (50 Kg each), in addition with 924 Bags (50 Kg each). He further argued that the plaintiffs had learnt from reliable sources that the defendants are unlawfully creating third party interests in the said property despite the stay order therefore the plaintiffs filed CMA No. 13521/2013 for appointment of Receiver and another spot inspection application and this Courtvide order dated 06.12.2013, allowed the spot inspection application, and ordered notice on the receivership application. He contended that in compliance of the above order the Nazir again conducted inspection of the subject premises and submitted his report on 16.12.2013, wherein he stated that the earlier stock of 924 bags and 4027 bags (50 Kg each) were lying at the mill and a fresh produce of 36320 bags (50 Kg each) were lying at the mill. Learned counsel for the plaintiffs urged that despite the injunctive orders defendants is continuing to sell the sugar and creating third party interest the plaintiffs immediately filed Contempt Application bearing CMA No. 119/2014 and application for inspection being CMA No. 120/2014 and this Court vide order dated 06.1.2014 restrained the defendants from creating third party interests on the subject property (to the extent of 21542 Metric Tons of Sugar). The order restrained the defendants from creating third party interests in the sugar produce including, but not limited to, the sugar crop for the year 2013-14. This would be a necessary implication since the Nazir Reports depicted that the sugar already lying at the mill did not accumulate to arrive at the figure of 21542 Metric Tons, and therefore the sugar produce of the current and upcoming seasons would have to be included to satisfy the order of this Court. He further contended that on 09.1.2014, in the absence of the plaintiffs' counsel, this Court modified the order 06.1.2014 on an application filed by the defendants under Order XXXIX Rule 4, CPC by amending the order to the extent that the 'restraining order does not apply on the sugar crop for the year 2013-2014.' Learned counsel vehemently urged that order dated 06.1.2014 cannot be implemented to the extent of 21542 metric tons of sugar if the sugar crop for the year 2013-14 is not taken into account. He contended that the defendants while obtaining the order dated 09.1.2014 was not properly assisted this Court as the agreements, which is subject matter of the suit, do not apply only to the sugar crop for the season 2011-12 since the agreements have been novated by way of conduct and submission of new cheques in place of the earlier ones therefore the plaintiff being aggrieved filed review application (CMA No. 435/2014) for recalling the phrase 'the restraining order does not apply on the sugar crop for the year 2013-14.'

5. Learned counsel for the plaintiff next contended that this Court has ample power to review its order if on the face of the record it is shown that there has been a misappreciation of fact making the order of this Court non-executable. He contended that in the instant case, since a restraining order dated 06.01.2014 cannot be executed to the extent of 21542 Metric Tons unless the sugar crop for the season 2013-14 is included a review application may lie in order to rectify such error. He further contended that this Court was not properly assisted to the effect that the said agreements had been novated to the extent of the delivery schedule and applicable sugar crop through submission of new cheques of the year 2013 and therefore the sugar crop of the year 2013-14 and the upcoming seasons would be included. He submitted that the consideration for the said rescheduling (novation) was that the defendant agreed to supply extra sugar in accordance with the default clause in the said agreements. He also submitted that the Plaintiffs have sought for the specific performance of the said agreements inasmuch as they have prayed for the promised sugar to be delivered. He made reference to Section 58 of the Sale of Goods Act, 1930 and states that this Court has ample power to enforce specific performance of a contract in relation to movable property and the facts of the instant case falls under the ambit of Section 54 of the Specific Relief Act, 1877, more specifically under Section 54(c) and (d) of the Specific Relief Act, 1877. He submitted that in the instant case, the abovementioned provisions of law are applicable as the breach of the defendants has led the plaintiffs defaulting on their forward contracts. Since the plaintiffs had made 100% advance payment to the defendants, they were financially incapable to procure the same amount of sugar from the market to satisfy the claims of the forward contracts thereby resulting in the loss of clientele. He, therefore, prayed for confirmation of stay by reviewing/recalling the order dated 9.1.2014 and prayed for dismissal of application of the defendants CMA No. 199/2014. In support of his submissions, learned counsel has placed reliance on the cases of Land Acquisition Officer and Assistant Commissioner, Hyderabad (PLD 2005 SC 311), Molasses Export Co. Ltd. vs. Consolidated Sugar Mills Ltd. (1990 CLC Karachi 609), Amar Lal vs. Principal Nishtar Medical College Multan & 6 others (2005 CLC Lahore 884).

6. On the other hand, Mr. Ijaz Ahmed Zahid, learned counsel for Defendant No. 1 and Mr. Zeeshan Abdullah, learned counsel for the Defendants No. 2 & 3 in reply to the arguments of the learned counsel for the plaintiffs have argued that this Court has rightly passed order dated 09.1.2014 to clarify the interim order as it does not apply to the sugar of the crop season 2013-14 and as such the order is not liable to be reviewed as the order under review does not change the interim injunction but only clarifies that the same does not apply on the sugar of crop season 2013-14. They urged that the review application is beyond the scope of Section 114 r/w Order XLVII Rule 1, CPC as it does not discloses the discovery of any new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the plaintiffs or the plaintiffs could not produce when the order under review was passed and no mistake/error apparent on the face or any other sufficient reasons has been shown for the review of the said order. They further urged that order which sought to be reviewed was passed by this Court after perusal of contents of the memo. of plaint of the instant suit, which explicitly provides subject matter of the suit is while refined sugar season crop 2011-12. They also urged that through the instant suit the plaintiffs are seeking specific performance of all the said six agreements and prayed that the defendants may be directed to supply the aforesaid commodity in performance of the agreements. They contended that plaintiffs alongwith the suit also filed application for injunctive relief whereby seeking restraining order to the effect that the defendants may be restrained from creating third party interest in respect of 21542 metric tons white sugar of crop season 2011-12 lying at the factory premises of the Defendant No. 1 was misleading statement as it was in the knowledge of the plaintiffs that they said commodity was not lying or available at the factory of Defendant No. 1 and the Court while granting interim order on 20,9.2013 appointed Nazir to inspect the factory/mill of Defendant No. 1 and submit report. The Nazir conducted the inspection and submitted his report which shows that only 247.55 metric tons of sugar was lying at the factory/mill of Defendant No. 1, which also does not pertain to the crop season 2011-12. This substantiates that the plaintiffs misled this Court by claiming that the 21542 metric tons white sugar was lying at the factory/mill of Defendant No. 1.

7. Learned counsel next contended that the discrepancy that is now being alleged by the plaintiffs in its review application has arising on account of misleading statement made in the injunction application and it is not the result of the clarification of the order, therefore, the plaintiff cannot be allowed to benefit from its own misrepresentation. They stated that plaintiffs are seeking specific performance of six contracts of supply of a specific commodity i.e. white refined sugar pertains to the crop season 2011-12, it is submitted that the said sugar not exists at present, therefore, the application for review/recalling of the order dated 9.1.2014 is not justified for the reason that if the order is reviewed or modified as prayed the same would be amounting to grant a relief of interim injunction beyond pleadings and subject matter of the suit, which is not permissible under the law. They further pointed out that contracts of sale of goods are not the contracts which are capable of being specifically performed and in relation to such contracts a permanent injunction under Section 56(f) of the Specific Relief Act cannot issued and where a permanent injunction cannot be issued the question of granting interim injunction also does not arise. They submitted that in the instant case the subject matter of the contracts is not ascertainable goods, therefore, the bar of Section 56(f) of the Specific Relief Act is fully attracted. They also submitting that keeping in view the particular facts and circumstances of the instant suit the interim injunction, particularly, when the commodity subject matter of the instant suit is not available, may not be granted. They submitted that the controversy involved in the instant suit cannot be resolved without recording evidence of the parties, therefore the prayer of the plaintiffs that the 21542 metric tons sugar may be ordered to be confiscated is unwarranted, particularly, in view of the fact that the said commodity for the season 2011-12 do not exit.

8. In the end learned counsel argued that no case for grant of interim injunction is made out as no illegality prima facie exists. They also submitted that balance of convenience is in favour of defendants. They further submitted that no irreparable loss will be caused to the plaintiffs if the injunction is refused. They submitted that at the most if the plaintiffs succeeding in the titled suit monitory compensation in the shape of damages as claimed by plaintiffs in the prayer clause will provide complete redress. They prayed for grant of CMA No. 199/2014 and dismissal of CMA Nos. 10015/2013 and 423/2014 with cost. In support of their submissions, they placed reliance on the cases of All Pakistan Textile Mills Association vs. Federation of Pakistan & 2 others (PLD 2009 Lahore 494), M/S. Petrocommodities (Pvt) Ltd. vs. Rice Export Corporation Of Pakistan (PLD 1998 Karachi 1), Bolan Beverages (Pvt) Limited vs. PEPSICO. Inc. & 4 others (2004 CLD 1530), Tahir Zaman vs. Jin Wei (M) SDN BHD & others (2004 CLD 603), Zawar Patroleum vs. O.G.D.C & others (2003 YLR 1450), Coca Cola Beverages Pakistan Limited vs. Abdul Hameed Chaudhry (2001 YLR 568), M/s. Gulf Pacific Fertilizer vs. M/s. Ali Akbar Enterprises & 2 others (2000 MLD 1537), Government of Pakistan & 3 others vs. Kamruddin Valika (1996 CLC Karachi 1086), Dada Steel Mills vs. Metalexport & 5 others (1985 CLC 1814) and Muhammad Azam Muhammad Faz1l & Co. vs. M/s. N.A. Industries, Karachi (PLD 1977 Karachi 21).

9. In rebuttal, learned counsel for the plaintiffs it has been argued by the defendants that in case a plaintiffs have asked for damages as an alternative prayer, the same cannot seek specific performance of a contract, it is submitted that under the theory of Order II Rule 2, CPC a plaintiff should ask for all possible remedies within one civil suit, as the same is barred from filing an independent case for seeking a different remedy for the same cause of action. Therefore, seeking damages as an alternative prayer cannot bar the plaintiffs from seeking specific performance. He further urged that the defendants have unlawfully averred that the plaintiffs are attempting to recover usurious loans in the garb of specific performance of an agreement, which is specifically denied that such is the case, as the agreements are for the delivery of sugar with consideration as has been admitted by the defendants themselves in Suit No. 1076/13. He urged that the defendants have specifically admitted the said agreements were for the supply of sugar, cheques were given as surety, and cheques of the year 2013 were also issued by the defendants as surety. He, therefore, submitted that when the defendants have admitted that the said agreements were for the supply of a commodity and not just a money based transaction, then the argument of interest and money based lending cannot survive. In pursuance thereof, the plaintiffs have a legal cause of action upon which this Court may take cognizance. He submitted that the defendants’ counsel argued that the sugar industry being overly regulated, and having dearth of finances, the defendants had to approach the market for financial solutions thereof. It is submitted that such solutions entailed selling sugar in advance at discounted prices for deliveries during the season. Such activity is not illegal, and in fact the same financial strategy is followed by the sugar mill whilst purchasing raw materials for the mill. The plaintiffs and the defendants were performing such business transactions since the last decade and even more without any reservations to either side. The Defendants are levelling such allegations as a mala fide afterthought only for the purposes of backtracking on their obligations agreed in the said agreements/contracts. Moreover, it is submitted that the defendants are taking contradictory stances in their pleadings evidencing their mala fides amongst other things.

10. Learned counsel, besides above, also submitted that the plaintiffs have a lien over the sugar produced/stored by the defendants to the extent of 21542 Metric Tons in accordance with the said agreements. It is submitted that the plaintiffs are seeking specific performance of the agreements relating to white refined sugar amounting to 21542 Metric Tons, which is not only pertaining to the sugar crop of the season 2011-12. He urged that in fact the said agreements, through novation or even otherwise, envisaged the sugar deliveries emanating from the sugar crop 2011-12, 2012-13, 2013-14, and the upcoming seasons. He submitted that this Court has rightly passed order, which includes the current and the crop from the upcoming seasons. It is submitted that the defendants, by way of transferring/disposing off the suit property, have violated the orders of this Court. He vehemently argued that the said agreements were novated to the extent of the delivery schedule which includes the sugar crop of 2013-14 and the upcoming seasons, and such is evidenced by the fact that the defendants provided fresh cheques twice to replace the earlier ones thereby depicting that delivery will be made in the upcoming seasons for which the said cheques shall be considered as surety. He denied that the deliveries are made without delivery orders and/or without further information including, but not limited to, truck information and transporter's details. He lastly submitted that this Court may review its order dated 09.01.2014, and may recall the phrase 'the restraining order does not apply on the sugar crop for the year 2013-14' from the said order. In support of his submissions, he placed reliance on the cases of Pakistan State Oil Compnay Limited vs. Federation of Pakistan & 4 others (2010 CLC Karachi 1843), Syed Waqar Hussain & anohter vs. M/s. National Refinery Ltd. (1993 CLC Karachi 2497), Agha Saifuddin Khan vs. Pak Suzuki Motors Compnay Limited & another(1997 CLC 302) and Raees Ghulam Sarwar vs. Mansoor Sadiq Zaidi & 4 others (PLD 2008 Karachi 458).

11. I have given due consideration to the arguments advanced by the learned counsel for the parties, minutely examined the material available on record and the case law cited at the bar.

12. It is settled law that party seeking an interim injunction must show that a prima facie case exist in his favour; the Court be satisfied that if injunction is not issued, irreparable damage or injury would be caused to such party; and, the balance of convenience is in favour of the grant of injunction.

13. The controversy involved in the instant suit is that the plaintiffs claimed that the commodity i.e. white refined sugar crop season 2011-12 were not delivered by the defendants as per the delivery orders and the agreements, which are subject matter of the instant suit were rescheduled. Whereas the defendants instance is that there is no remaining obligation for the supply of said sugar on the defendants to the plaintiffs and there was no rescheduling of the said agreements, as plaintiffs have not produced any document which shows that the agreements were ever rescheduled or the validity of the same extended, therefore performance of the same cannot be sought. Indeed, the defendants has rightly stated that plaintiffs have not annexed/produced any documents which shows that the agreement, which are subject matter of the instant suit, were ever rescheduled except cheques, which were given by the defendants in the years 2012 and 2013 as surety. Admittedly, there is no dispute in respect of execution of agreements and that the plaintiffs have paid the entire sale consideration for supply of white refined sugar mentioned in the said agreements. The defendants with regard to his plea that they had delivered the agreed sugar have only annexed office copy of delivery orders with their suit No. 1076/2013. This Court appointed the Nazir to carry out inspection on different occasions. The Nazir Reports dated 08.10.2013 and 16.12.2013, confirm the fact that the defendants are creating third party interests, in the sugar being the subject matter of the instant suit, by selling it to various buyers in glaring violation of this Court's order. It is evident from the bare perusal of the Nazir Report dated 16.12.2013, that the subject sugar is being sold and transported out of the Defendant No. 1's mill to the detriment of the Plaintiffs. The Deputy Nazir in Para-6 of his report dated 16.12.2013 has recorded that "On enquiry of the total quantity delivered to the Customer from Factory the officials of the defendant declined to answer properly. Even though the sugar was delivered on the basis of original delivery orders and trucks coming in for loading were issued gate pass alongwith CNIC of driver and destination of where the sugar is being taken." Even the contentions of the defendants that they had delivered the sugar as per agreements is assumed to be correct then defendants have certainly in possession of original delivery orders, gate passes and the trucks/vehicles on which the said sugar was transported, but all these important documents are not available on record. It is important to note that when defendants had delivered the commodity according to contract why they issued cheques to the plaintiffs in the year 2013 and if the same were belonging to agreements for the season 2011-12 the original of the same should be with the defendants and not with the plaintiffs. All the original delivery orders are also in possession of the plaintiffs and the defendants without taking the original delivery orders transported the sugar to the plaintiffs. All these factual controversy involved in the matter requires deeper appreciation and cannot be decided at this stage without record of evidence of the parties.

14. As regards the other contention of the learned counsel for the defendants that plaintiffs apart from relief of specific performance of the agreements have also claimed damages to the tune of Rs.1,000,000,000/-. Since damages have been calculated specific performance of the agreements would not be granted. Likewise, when a specified sum of damages has been claimed, one of the necessary ingredients for grant of interim injunction vis-a-vis irreparable loss likely to be suffered by the plaintiff is missing, the injunction could not be granted. I do not agree with the contention of defendants' counsel, that since the plaintiffs have claimed damages, no relief by way of temporary injunction could be granted. Under Rule 2 of Order XXXIX of CP.C, the plaintiffs can apply to the Court for a temporary injunction, to restrain the defendants from committing breach of contract whether compensation is claimed in the suit or not. The damages claimed by the plaintiffs are in addition to the relief of specific performance and is not claimed as an alternative relief. The loss or injury which the plaintiffs would suffer in case the defendants commit breach of agreement, in my view, cannot be calculated and the proper course would be to restrain the defendants from committing breach of contract pending decision of suit. The balance of convenience in the instant case in such circumstances also lies in favour of plaintiffs. Moreover, under Order II Rule 2, CPC a plaintiff should ask for all possible remedies within one civil suit, as the same is barred from filing an independent case for seeking a different remedy for the same cause of action. As such, seeking damages as an alternative prayer cannot bar the plaintiffs from seeking specific performance.

In view of what has been discussed above, review application bearing CMA No. 423/2014 is allowed by recalling the order dated 09.01.2014 and defendants are directed not to dispose of/sell sugar to the extent of plaintiffs claim i.e. 21542 metric tons and/or create third party interest as ordered earlier on 06.1.2014 till disposal of the suit and dismissed the defendants' application Bearing No. 199/2014.

The applications CMA Nos. 10015/2013, 199/2014 and 423/2014 stand disposed of.

(R.A.) Application allowed

PLJ 2015 Karachi 32 (DB)

Present: Muhammad AliMazhar and Shahnawaz Tahir, JJ.

MUHAMMAD NADEEM RANA--Petitioner

versus

D.G. RANGERS, KARACHI & 4 others--Respondents

C.P. No. D-2526 of 2014, decided on 16.7.2014.

Anti Terrorism Act, 1997 (XXXV of 1997)--

----S. 11-EEEE--Illegal detention--Preventive detention is permissible for period not exceeding three months subject to specific or general order--Order was passed in public interest--Validity--Inquiry may be conducted by a police officer not below rank of Supt. of police or through a join investigation team (HT) to be notified by Government comprising a police officer not below rank of Supt. of Police and officers of other investigation agencies and powers of inquiry officer will be vested as per Section 5 of Federal Investigation Agency Act, 1974--Where detention order has been issued by armed forces or civil armed forces, inquiry shall be conducted by JIT comprising members of armed forces or civil armed forces, as case may be, intelligence agencies and other law enforcement agencies, including a police officer not below rank of Supt. of police--Purpose of retaining a person in preventive detention is to conduct inquiry and verify his credential or antecedents whether he is involved in any such act warranting his preventive detention under law or not and for that purpose JIT is to be formed by Home Department--If any person is found innocent in JIT, he should be released forthwith and if a person is found suspect of any crime, he may be dealt with in accordance with law by initiating further legal proceedings--JIT was conducted after more than 60 days in which son of petitioner was found innocent--Petition was disposed of. [Pp. 37 & 38] A, B, C, D & E

Ms.Uzma and Mr. Habib Ahmed, Advocates for Petitioner.

Dr.Niaz Abbasi, Home Secretary, Government of Sindh.

Barrister Mustafa Mehaser, A.A.-G.

Mr. Shaikh Liaquat Hussain, Standing Counsel.

M/s. Saeed Ahmed Soomro, Zia Arif Janjua and Allah Bachaya Bhatti from Pakistan Rangers.

Mr. Zafar Ahmed Khan, Addl. P.G.

Mr. Aftab Ahmed Nizamani, S.S.P. City and Muhammad Asif, S.H.O. P.S. Garden.

Date of hearing: 16.7.2014.

Order

Muhammad Ali Mazhar, J.--This constitution petition has been brought to challenge the illegal detention of the Muhammad Hanif Rana.

1. It is contended in the memo. of petition that on 1st May, 2014 the petitioner's son went for shopping when the officials of Respondent No. 1 conducted the raid, arrested six to seven persons from the area market along with the son of the petitioner. He approached to the Respondent No. 4 but he did not lodge the report.

2. On 2nd June 2014, the Major Deputy Assistant Judge Advocate General Pakistan Rangers Sindh (Ashfaque Ahmed), filed the comments in which he stated that on the direction of this Court necessary ground check was carried out which revealed that detenue Muhammad Hanif has been detained for three months with effect from 4.5.2014 to 1.8.2014 by the Sector Commander Abdullah Shah Ghazi Rangers under Section 11-EEEE of Anti-Terrorism Act, 1997 and at present he is confined in the Central Prison, Karachi. He also attached the detention order dated 4.5.2014, passed by the Sector Commander who received the credible information relating to involvement in extortion/bhatta target killing and kidnapping against Muhammad Hanif, hence his preventive detention order was passed in public interest so that an inquiry be conducted against the above said person and during the inquiry he may be kept under preventive detention for the period of three months.

3. On 13.6.2014, the petitioner was allowed to file amended petition in view of the subsequent developments made in the matter. The petitioner filed the amended prayer for seeking the declaration that the act of the official respondent is illegal, unconstitutional and misuse of official power. He further prayed to set aside the impugned order dated 4.5.2014 and release the detenue.

4. Section 11-EEEE was inserted by the Act No. XX/13 dated 26.3.2013 which was substituted by the Act No. VI of 2014 dated 18.6.2014. A proviso was added that the detention of such person, including detention for further period after three months, shall be subject to the provisions of Article 10 of the Constitution. Sub-section (5) was also inserted which provides that any person detained shall be provided facility of medical checkup as may be prescribed by the rules. One more important aspect which cannot be ignored is the language used in the proviso that was attached with Section 1 of 11-EEEE inserted in 2013 which was substituted through the Act No. VI of 2014 dated 18.6.2014. In the earlier proviso (inserted in 2013 to Section 11-EEEE), further detention if necessary was the subject to the provisions of Article 10 of the Constitution while the proviso brought in through substitution in 2014 covers both the detention i.e. initial detention including detention for further period after three months which shall be subject to the provisions of Article 10 of the Constitution. For ready reference, Section 11-EEEE of the Anti-Terrorism Act, 1997 is reproduced as under:

(11) EEEE. Preventive detention for inquiry.--(1) The Government or where the provisions of section 4 have been invoked the armed forces or civil armed forces, as the case may be, subject to the specific or general order of the Government in this regard, for period not exceeding three months and after recording reasons thereof, issue order for the preventive detention of any person who has been concerned in any offence under this Act relating to the security or defence of Pakistan or any part thereof, or public order relating to target killing, kidnapping for ransom, and extortion/bhatta, or the maintenance of supplies or services, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned for purpose of inquiry.

Provided that the detention of such person, including detention for further period after three months, shall be subject to the provisions of Article 10 of the Constitution.

(2) The inquiry under sub-section (1) may be conducted by a police officer not below the rank of Superintendent of police or through a join investigation team (HT) to be notified by the Government comprising a police officer not below the rank of Superintendent of Police and officers of other investigation agencies and the powers of the inquiry officer will be vested as per Section 5 of the Federal Investigation Agency Act, 1974 (VIII of 1975).

Provided that where the detention order has been issued by the armed forces or civil armed forces under sub-section (1), the inquiry shall be conducted by the JIT comprising members of armed forces or civil armed forces, as the case may be, intelligence agencies and other law enforcement agencies, including a police officer not below the rank of Superintendent of Police.

(2A) The provisions of sub-sections (1) and (2) shall remain in force for such period as may be notified by the Government from time to time.

Provided that such period shall not exceed two years from the commencement of the Anti-Terrorism (Amendment) Act, 2014.

(3) The detenue shall be produced in camera before the presiding officer of the Court or in his absence before the District and Sessions Judge or the Magistrate appointed under the Shariah Nizam-e-Adl Regulation, 2009, within twenty four hours of his detention and before the presiding officer of the Court if and when any extension if the period of detention is requested.

(4) During inquiry the concerned police officer not below the rank of Superintendent of Police or equivalent officer of the law enforcement agencies or the members of joint investigation team (HT) as the case may be shall have all the powers relating to search, arrest of persons and seizure of property, and other relevant material connected with the commission of offence and shall have all the powers as a police officer has in relation to the investigation of offences under the Code or any other law for the time being in force:

Provided that the detenue shall be kept in a detention centre so notified by the Government and the presiding officer of the Court or the Magistrate, as the case may be referred in sub-section (3) that have the authority to inspect the detention centres to ensure that the custody is in accordance with the law for the time being in force.

(5). Any person detained under the section shall be provided facility of medical check up as may be prescribed by rules.

1. Article 10 is one of the basic fundamental rights which envisages in sub-article (1) that 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 while sub-article (2) makes emphasis that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest, excluding the time necessary for journey from the place of arrest to the Court of nearest Magistrate, and no such person shall be detained in custody beyond the authority of the Magistrate. However, it is further provided in sub-article/clause (3) that nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention, however, clause (4) clearly stipulates no law providing for preventive detention shall be made except to deal with person 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 for maintenance of supplies or services and no such law shall authorize the detention of a person 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.

2. What the record reveals in this case that on 2nd July 2014, the learned standing counsel submitted that the matter has been referred to JIT but the report is awaited. He was directed to file the latest update on JIT and the matter was adjourned to 9.7.2014. On 09.07.2014, learned A.A.G Mr. Mustafa Mehaser shown us a letter dated 2.7.2014 which was written to SSP (South) to submit the report of JIT. He further submitted that despite sending letter to SSP South no efforts were made to submit the report or comments. On this statement, we issued direct notice to DIG South, Karachi to ensure that the report should be submitted on the next date. On very same date, Mr. Zia Arif Janjua, from Pakistan Rangers submitted that on 7.5.2014 they had written a letter to Home Department for constituting JIT and he further submitted that JIT has been constituted but he does not know with regard to the outcome of investigation report, the matter was then adjourned to 11.7.2014. On 11.7.2014, Mr. Ali Bux S.P City, District South, Karachi and S.H.O, P.S Garden both have submitted the comments, which were totally irrelevant as nothing was mentioned to show as to whether any JIT was constituted or whether any report of JIT has been prepared in connection with the detention of the petitioner's son, however, they orally submitted that they had not received the letter of Pakistan Rangers nor any intimation from Home Department regarding the constitution of JIT in this case. Since according to the available information, the JIT was not conducted despite lapse of 60 days' time and proper assistance was also not provided perhaps due to lack of coordination, so we had issued notice to the Home Secretary, Government of Sindh to appear in person and assist this Court. We had also issued notice to learned A.G to address this Court on this issue.

3. Today Dr. Niaz Abbasi, Home Secretary, Government of Sindh appeared and also submitted a brief note in this matter. He categorically stated that letter for constituting JIT was received from Pakistan Rangers on 7th May 2014 and on 08.05.2014, he issued order and constituted J.I.T. He also attached the letter dated 15th July 2014 written to him by SP Investigation-1, South, Karachi in which he communicated that JIT was conducted on 11th July 2014. The findings of JIT shows that Muhammad Hanif denied the charges nor any material admissible in Court was produced by the arresting agency against the accused so he was cleared. The Home Secretary further stated that the proper facts have not been disclosed to this Court, particularly the date when he issued order for constitution of JIT. On 16th July 2014, Senior Superintendent of Police, District South Karachi again submitted a statement in Court in which he shown complete ignorance as to whether any JIT has been conducted and its report has been submitted or not while the copy of covering letter 15.7.2014 submitting the JIT report to the Home Secretary Sindh was also endorsed to DIG South and this letter was written by SP, Investigation-1, South, Karachi. Again this is a case of lack of proper coordination between the concerned departments. The petitioner present in Court submitted that his son has been released on the findings of JIT.

4. No doubt under 11-EEEE of ATA, 1997, the preventive-detention is permissible for a period not exceeding three months subject to specific or general order in this regard and after recording reasons thereof, for the preventive detention of any person who has been concerned in any offence under the above Act relating to the security or defence of Pakistan or any part thereof, or public order relating to target killing, kidnapping for ransom, and extortion/bhatta, or the maintenance of supplies or services, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned for purpose of inquiry. It is further provided that the inquiry may be conducted by a police officer not below the rank of Superintendent of police or through a join investigation team (HT) to be notified by the Government comprising a police officer not below the rank of Superintendent of Police and officers of other investigation agencies and the powers of the inquiry officer will be vested as per Section 5 of the Federal Investigation Agency Act, 1974. It is further provided that where the detention order has been issued by the armed forces or civil armed forces, the inquiry shall be conducted by the JIT comprising members of armed forces or civil armed forces, as the case may be, intelligence agencies and other law enforcement agencies, including a police officer not below the rank of Superintendent of Police.

5. The purpose of retaining a person in the preventive detention is to conduct inquiry and verify his credential or antecedents whether he is involved in any such act warranting his preventive detention under the law or not and for this purpose JIT is to be formed by the Home Department. The purpose of three months period allowed for detention does not mean that the JIT should be formed at the verge of expiry period of detention or if it is formed earlier then it is not the idea at the back of this legislation to submit the report at the time of ending preventive detention period. In our view, a Standard Operating Procedure must have been made out with the consultation of all laws enforcement agencies so that as soon as person is taken into preventive detention in the above law, not only the JIT is formed immediately if required but the report of JIT shall also be submitted within a reasonable time so that if any person is found innocent in JIT, he should be released forthwith and if a person is found suspect of any crime, he may be dealt with in accordance with law by initiating further legal proceedings. This matter was fixed before us on three different dates i.e 2.7.2014, 9.7.2014 and 11.7.2014 but nothing was shown or placed on record whether any JIT report was submitted or not. Today when Home Secretary appeared he filed a letter dated 15.7.2014 to show that JIT was conducted on 11.7.2014. It is a matter of record that person was taken into preventive detention on 4th May 2014, letter was sent for constituting JIT on 7th May 2014 and JIT was constituted by Home Secretary on 8.5.214 which shows that JIT was conducted after more than 60 days in which the son of the petitioner was found innocent. Since the son of the petitioner has been released, he does not want any further action in this regard. The petition is disposed of but while disposing of this petition, we would like to give some directions that the Respondent No. 5 shall designate/ appoint a local person to keep active liaison with Advocate General Office, Sindh and attend this Court regularly in the preventive detention and missing person's cases for proper assistance. The name of focal person may be communicated to the AG office within a week's time. It is also instantaneously and realistically required that a Standard Operating Procedure (S.O.P) shall also be chalked out immediately and implemented by the Respondent No. 5 for constituting JIT in preventive detention cases with some reasonable time frame of conducting JIT and submission of its report to the competent Authority to an early date.

(R.A.) Petition disposed of

PLJ 2015 Karachi 39 (DB)

Present: Muhammad Ali Mazhar & Abdul Rasool Memon, JJ.

M/s. SF ENGINEERING SERVICES through Proprietor--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary W&P, Islamabad and 4 others--Respondents

C.P. No. D-3065 of 2012, decided on 7.3. 2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Work order was given for collection and transportation Hardware from HESCO--Defective work was required to be rectified--Liability of payment--Agreeing to pay outstanding dues--Implementation of contractual obligation, Civil Court most appropriate adequate and efficacious remedy--Validity--Controversy of disputed questions of facts, adjudication of which is possible only after obtaining all types of evidence having by parties can be determined only by forums concerned and in such like cases, constitutional petition would not be competent--Extra ordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where legality of impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts--In case of contractual obligation for resolution of disputed questions of facts proper way to decide controversy is to record evidence so that rights and claims of parties may be determined--Petitioner has approached High Court for recovery of dues and also asserted in memo. of petition that constitution petition is an adequate remedy under law which is totally a misconceived notion--Due to wrong approach to wrong forum on misconception of law or wrong selection of forum, actual remedy provided under law becomes time barred and in that situation, petitioner has to first cross barrier of limitation for seeking relief and leaving himself at mercy of Court to consider sufficient cause for condonation of delay and then embark upon merits of case--Contractual rights, commitments, undertakings and obligations have to be enforced through Courts of ordinary jurisdiction for which normal remedy is a suit for infringement of contractual rights and obligations which could be availed instead of invocation of Art. 199 of Constitution. [Pp. 45, 46 & 47] A, B, C & D

Mr. Ali Asadullah Bullo, Advocate for Petitioner.

Mr. Ansari Abdul Latif,Advocate for Respondent No. 4.

Mr. Asif Hussain Mangi, Standing Counsel.

Date of hearing: 18.2.2014.

Order

Muhammad Ali Mazhar, J.--The petitioner has brought this petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, with the prayer that the respondents may be directed to release admitted amount as per verified bills. Further directions have been sought to pay interest on verified amount as per bill according to prevailing rate of markup notified by State Bank of Pakistan. It was further prayed that direction may be issued to respondent to takeover admitted dismantled/excess material from the petitioner.

1. Brief facts of the case are that petitioner's firm was given a work order by HESCO on 24.05.2011 for collection and transportation of ABC & Hardware from HESCO Store, dismantlement of bare LT Conductors, Hardware and safe return to store, installation of ABC and hardware installation of static energy meters in place of existing electromagnetic energy meters. The work was awarded by HESCO and work order was signed and issued by its Chief Engineer (Dev.) PMU. The total amount of work order was Rs. 1,493,177/-. Along with work order, agreed terms and conditions were also attached.

2. The learned counsel for the petitioner argued that despite an admitted liability, Respondent No. 4 has failed to honour his commitment. He further argued that entire work was completed to the satisfaction of Respondent No. 4 and work done was also assessed and verified by the Respondent No. 5 and bill was submitted to Respondent No. 4 for releasing payment. He further argued that Respondent No. 5 had written a letter to the Respondent No. 4 in which intimation was given that work has been completed and Respondent No. 4 was advised to take over the completed work. Learned counsel argued that respondents have infringed the fundamental rights of the petitioner by not paying his dues and admitted amount without any reason. It was further averred that petitioner has no other efficacious and adequate remedy except to file this constitutional petition. In support of his arguments, the learned counsel for petitioner relied upon following dictums:--

(1) PLD 1966 SC 639 (Anjuman-e-Ahmadiya, Sargodha v. Deputy Commissioner Sargodha and another). Leave to appeal to Supreme Court. Granted to consider whether remedy by way of suit was an "adequate alternative remedy" in a case where order impugned under Article 98 of Constitution of Pakistan (1962) was purported to have been made in exercise of "public power", (b) Constitution of Pakistan (1962) Article 98(2). "No other adequate remedy is provided by law". Such remedy must be remedy "in law" not less convenient, beneficial and effective, in case of a "legal right to performance of a legal duty". Remedy must be provided by particular statute itself. To disentitle a person from such an extraordinary relief (under Article 98(2) of the Constitution (1962) the alternative remedy available must be a remedy in law, that is a remedium juris and one which is not less convenient, beneficial and effective, if what is sought to be enforced, by such an extraordinary remedy is "a legal right to the performance of a legal duty of a public nature".

(2) 2007 MLD Karachi 770 (Hydri Ship Breaking Industries Ltd., v. Sindh Government and others) Article 199 of Constitutional petition. High Court would not entertain a constitutional petition when other appropriate remedy was available, was not a rule of law barring jurisdiction of High Court. Such as a rule by which the Court would regulate the exercise of its own discretion. One of the well-recognized exceptions to that general rule was a case where an order was attacked on the ground that it was wholly without authority. In certain cases Superior Courts do not allow petitioners to invoke constitutional petition on the ground of availability of an alternative remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy the Courts do not hesitate to exercise such constitutional jurisdiction and it could be expressed as a generally accepted principle, that just because an alternate remedy by way of appeal or otherwise was available to a petitioner, High Courts would not invariably decline to exercise their extraordinary constitutional jurisdiction. Mere availability of an alternate remedy, would not debar High Court from exercising such jurisdiction.

(3) PLD 2008 SC 135 (Muslimabad Cooperative Housing Society Ltd., v. Mrs.Siddiqa Faiz and others) Article 199. Constitutional jurisdiction of High Court. Scope. Impugned act of statutory functionary being mala fide. Alternate remedy, availability of. Effect. Availability of alternate remedy would not bar jurisdiction of High Court to entertain constitutional petition. Principles. High Court will not entertain a writ petition when other appropriate remedy is yet available to petitioner is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, then the High Court, in exercise of its writ jurisdiction, has power to grant relief to the aggrieved party.

(4) PLD 2009 Karachi 112 (Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd., and another) Article 199 Constitutional jurisdiction. Scope. Normally a constitutional petition for the enforcement of a contractual obligation, was not maintainable, however, State and a functionary acting under the State had to act in a fair and transparent manner; and if disputed questions of facts were not involved, relief, in exercise of power under Article 199 of the Constitution, in appropriate matters could not be denied, merely because issues in the matter related to contractual obligations.

(5) 2003 CLC Karachi 1196 (M/s. Ahmed Clinic v. Government of Sindh and another) Article 199. Constitutional jurisdiction of High Court. Alternate remedy, availing of Principles. Where impugned actions are completely without jurisdiction, mala fide, unlawful and passed in flagrant disregard of the law and principles of natural justice, the same amount to denial of justice. Not necessary to avail alternate remedies in such matters. Aggrieved party can invoke the constitutional jurisdiction in circumstances".

(6) PLD 2006 SC 528 (Province of Sindh through Secretary, Ministry of Excise and Taxation and others v. M/s. Azad Wine Shop and others). Adequate alternative remedy. Question of validity of levy and recovery of vend fee, assessment fee and surcharge on the touchstone of the Prohibition (Enforcement of Hadd) Order, 1979 and Sindh Prohibition Rules, 1979 was a question of law. Rule 10 of Sindh Prohibition Rules, 1979 authorized the Government or its authorized officers to call for and examine the record of proceedings, taken or passed by any authority subordinate to it, so as to satisfy itself as to the legality or propriety of the same. Said revisional power of the government could not be said to be an alternative remedy, much less adequate. Where validity of the law or the rules or instructions having the force of law was involved, the availability of alternative remedy had never operated as a bar to the exercise of constitutional jurisdiction by the High Court.

(7) PLD 2005 S.C. 792 (Pakistan Defence Officers Housing Authority, Karachi v. Shamim Khan & others). Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction. Where the material facts were admitted by the respondent. High Court could interfere.

1. On the contrary, the learned counsel for the Respondent No. 4 argued that contract was executed between HESCO and the petitioner for execution of electrical work and accordingly work order was issued but the petitioner intentionally avoided to implead the HESCO in this petition which was proper and necessary party. He further argued that nature of controversy involved in this petition primarily relates to correctness and satisfaction of work awarded to petitioner and its completion or non-completion which is essentially a factual controversy and requires full-fledged inquiry and matter can only be resolved once the evidence of the parties is recorded. So the learned counsel vehemently argued that this petition is not maintainable. He specifically referred to Paragraph No. 3 of the counter affidavit in which various details are given. He argued that the petitioner has failed to complete the job as per work order. It was also contended that the petitioner dismantled some material and failed to return the same to HESCO store. Quantification of work was required to be made by joint survey and petitioner was reluctant to return and get it surveyed jointly and they also failed to show details of some material whether it is in safe custody or not? It was further pointed out from counter affidavit that petitioner failed to return the removed meters to the HESCO store. Through removed meters, readings were required to be noted for generating bills to the consumers for payment and due to non-returning of meters, there is an acute possibility of loss of revenue and unless all meters are returned, proper reading could not be taken from meters for onward billing to the consumers.

2. He further argued that petitioner also failed to return meter frames, anti-theft boxes and empty cable drums. It was further averred that petitioner has failed to abide terms and conditions of work order and to complete work within a period of one month and due to poor workmanship, work lingered on till March, 2012 as such HESCO has a right to claim loss occurred due to shut down. Defective work is required to be rectified. The petitioner was required to submit invoices along with other documents for which sample specimen/format were handed over to the representative of the petitioner. Details of all such documents are mentioned in counter affidavit. To a simple glance of counter affidavit, it is clear that various disputed questions of facts and factual controversies have been raised by Respondent No. 4 and nowhere any liability is admitted.

3. Heard the arguments. The whole case of the petitioner is based upon the assertion that since the Respondent No. 4 has admitted the liability of payment hence, the petitioner has rightly invoked the jurisdiction of this Court under Article 199 of the Constitution. When we had called upon the learned counsel for the petitioner to show us if any admission made by the Respondent No. 4 agreeing to pay the outstanding dues. At the very outset, the learned counsel invited our attention to page-37 which is in fact a taking over report of Grid Qasimabad for the replacement of Bare LT Conductors with Arial Bundled Cables. This report was only signed by the contractor's representative and consultant's representatives but the column made for the signature of HESCO's representative is blank which shows that the HESCO representative never signed any such taking over report. Then the learned counsel pointed out page 261, which is a letter dated 2.7.2012 written by Respondent No. 5 to the petitioner for returning of excess and dismantled material of HESCO, ABC Jobs, Memon Society, Qasimabad. In this letter the representative of Respondent No. 5 in fact lodged a grievance to the petitioner that their representative is not in contact for proper and correct measurement of job orders and to finalize the balance material to be returned to the store. Again we are failed to understand as to how this letter can be treated any admission. Learned counsel then pointed out page 287 which is a letter dated 3.7.2012 written by HESCO to the petitioner in which the Manager, HESCO advised the petitioner to attend the office of Respondent No. 5 for resolving the returning of excess and dismantled material of HESCO including the matter of invoices/bills. In this letter too, no admission is reflected to have been made for payment on the part of HESCO. Learned counsel next referred to page 301 which is an office order issued by HESCO. The copy of this order was endorsed to various offices for returning of dismantled energy meters with the pointation of designated stores mentioned in the bidding documents. Lastly he referred to page 303, which is a letter written by Respondent No. 5 to the Executive Engineer, Operation Division, Qasimabad, HESCO, Hyderabad in which it was advised to take over the project for the work of installation of ABC at Memon Housing Society, Hyderabad. Again in this letter nothing is shown to treat any admission of liability which was in fact written to HESCO and not by HESCO to the petitioner. It is also pertinent to point out that the claim of the petitioner is against the HESCO through its Chief Executive Officer but despite providing ample opportunity of hearing to the petitioner's counsel, he could not be able to demonstrate any visible admission through any documents. It is also a fact that the work order was issued by HESCO in this case but the petitioner failed to implead HESCO as one of the respondents, which was proper and necessary party but the petitioner only impleaded its Chief Executive and not the company. So in this regard we are of the view that the petition is also hit by misjoinder and non-joinder of necessary party.

4. The pros and cons lead us to the conclusion that both the parties have raised disputed questions of facts and we have not come across with any admitted liability. Article 199 of the Constitution is not intended for deciding the disputed facts and thwarts the procedural law. The controversy of disputed questions of facts, adjudication of which is possible only after obtaining all types of evidence having by the parties can be determined only by forums concerned and in such like cases, constitutional petition would not be competent. This extra ordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where legality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Reference can be made to a judgment of Mumtaz Ali Jahangir v. Province of Sindh authored by one of us (Muhammad Ali Mazhar, J), which is reported in 2012 YLR 453 + PLJ 2012 Kar.69.

5. The petitioner wants implementation of contractual obligation for which the civil Court is the most appropriate, adequate and efficacious remedy. In case of contractual obligation for resolution of disputed questions of facts the proper way to decide the controversy is to record evidence so that the rights and claims of the parties may be determined. The petitioner has approached this Court for the recovery of dues and also asserted in the memo. of petition that constitutional petition is an adequate remedy under the law which is totally a misconceived notion. It is often seen which has become a common fashion and practice that to cure and remedy all the problems/sufferings, litigants use to file constitutional petitions, no matter, the petition is maintainable or not or equally efficacious and alternate remedy is already provided under the law. It is clear from the letter of the law that claim arising from contractual obligations require inquiry and evidence and it can only be decided by Civil Court which is most adequate and efficacious remedy. The writ jurisdiction cannot be exploited as sole solution for ventilating all miseries, distresses and plights. This extraordinary jurisdiction should not be misused to waste precious time of the Court in fruitless exercise particularly when a huge backlog of pending cases are in docket almost in all Courts. It is time and again seen that due to wrong approach to the wrong forum on misconception of law or wrong selection of forum, the actual remedy provided under the law becomes time barred and in that situation, the petitioner has to first cross the barrier of limitation for seeking relief and leaving himself at the mercy of the Court to consider the sufficient cause for condonation of delay and then embark upon the merits of the case.

6. Learned counsel for the petitioner referred to various dictums in support of his case which are mentioned above but all are found distinguishable. In the case of Anjuman-e-Ahmadiya, Sargodha, the subject matter was construction of mosque along with boundary wall, in which it was claimed that the construction was being raised on the basis of plan submitted to the municipality. In the case of Hydri Ship Breaking Industries Ltd., the common question was involved in 130 petitions, which were in fact related to the grant of import license and the payment of Octroi. In the case of Muslimabad Cooperative Housing Society Ltd., the order of Deputy Registrar Cooperative Societies was challenged and it was set-aside on the ground that it was beyond the scope of Section 54-A or Section 56 of the Cooperative Societies Act. In the case of Haji Amin the petitioner participated in the tender proceedings for the supply of rice. A tender was issued in favour of another party so the petitioner only claimed the refund of bid amount which was deposited along with bid documents. In the case of M/s.Ahmed Clinic, the dispute was related to the grant of an amenity plot, which was subsequently cancelled under Martial Law Order XXXIV. The next quoted case is Province of Sindh v. M/s. Azad Wine Shop and others, which was related to the levy and recovery of vend fee, assessment fee and surcharge on assessment fee as without lawful authority. The last case of Pakistan Defence Officers Housing Authority, Karachi is also related to the allotment of residential plot and its cancellation due to non-deposit of development charges. In none of the cited cases the controversy of like nature was involved so the same are not attracted to the facts and circumstances of the present case, which is merely in the form of civil suit for recovery for which a futile attempt has been made to convert the same into a constitutional petition, which is not conceivable.

7. At this convergence, we would like to quote the case of Pakcom Limited reported in PLD 2011 S.C. 44 in which the apex Court held that violation of contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of constitutional jurisdiction and such controversies should be resolved by approaching appropriate forums provided by Law. The contractual rights, commitments, undertakings and obligations have to be enforced through Courts of ordinary jurisdiction for which normal remedy is a suit for

infringement of contractual rights and obligations which could be availed instead of invocation of Article 199 of the Constitution.

1. As a result of above discussion this petition is dismissed. The petitioner may avail appropriate remedy in accordance with law.

(R.A.) Petition dismissed

PLJ 2015 Karachi 47

Present: Muhammad AliMazhar, J.

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD., KARACHI through its Authorized Officer--Applicant

versus

WISAL MUHAMMAD & 2 others--Respondents

Civil Rev. Appln. No. 51 of 2014, decided on 26.8.2014.

Revisional Jurisdiction--

----Scope of--Discretionary and equitable in nature--No party was entitled as of right--Object of superior Courts while exercising its discretionary jurisdiction is to foster ends of justice, preserve rights of parties and to right a wrong and, keeping object in view, it may in equity, set aside or annul a void judgment of declined to enforce it by refusing to intervene in circumstances of case. [P. 50] A

Civil Revision--

----Exercised its jurisdiction illegally or with material irregularity--Maintainability--It is also well known principle of law that a civil revision, at instance of a litigant is maintainable on satisfaction of circumstances cumulatively. [P. 50] B

Correction of Date of Birth--

----Controversy raised in plaint as well as written statement cannot be thrashed out unless evidence was recorded--Request for correction of date of birth--Validity--Respondent tried to demonstrate that his date of birth was corrected much earlier or even at time of submitting his joining report and he has also attached a list of employees issued by applicant's H.R Department with date of birth and retirement--Even question cannot be decided in isolation unless evidence is allowed to be adduced by parties as a whole or en masse. [Pp. 50 & 51] C

Mr.Fazl-ur-Rehman, Advocate for Applicant.

Mr. MuhammadRamzan, Advocate for Respondent No. 1.

Respondent No. 1 is also present.

Date of hearing: 26.8.2014.

Order

The petitioner has preferred this revision application against the judgment dated 17.2.2014 passed by the learned 1st Additional District Judge, Malir in Civil Appeal No.29/2013 and prayed that the appellate judgment be set aside and the order passed by learned IInd Senior Civil Judge, Malir on 7.9.2013 in Suit No. 172/2013 be maintained/restored.

1. The brief facts of the case are that the Respondent No.1 was employed by the applicant on 22.3.1977. He filed a suit No. 172/2013 for declaration & permanent injunction for the correction of his date of birth as 20.4.1955 instead of 11.09.53 and to allow him to perform his duty till 19.4.2015.

2. The applicant had filed its written statement and also filed an application under Order 7 Rule 11 CPC on the ground that the civil Court has no jurisdiction to proceed with the matter and the suit was barred by law. After hearing both the parties the learned trial Court rejected the plaint vide order dated 7.9.2013. On filing appeal against the said order the learned 1st ADJ Malir set-aside the order and remanded the matter back to the trial Court for deciding the case on merits.

3. Learned counsel for the applicant argued that the impugned judgment is unjust, improper and is liable to be set-aside. He further argued that learned appellate Court has failed to apply objective approach which resulted miscarriage of justice. The appellate Court ought to have considered the fact that the respondent has already been retired from his service on 10.9.2013. Learned counsel argued that the suit was time barred and the learned Civil Court had no jurisdiction to decide a matter concerning service of an employee of a public corporation. Learned counsel for the applicant further argued that the learned appellate Court has ignored the official service record of the Respondent No. 1 which remained unchallenged for more than 30 years and at the verge of his retirement he filed application for correction of his date of birth.

4. On the contrary, the counsel for the Respondent No. 1 argued that the trial Court rejected the plaint without considering the Secondary School Certificate of the Respondent No. 1 wherein his date of birth was mentioned as 20.04.1955 and when he came to know this error, he immediately approached to the applicant for making necessary correction. He further argued that no illegality or irregularity has been shown by the applicant in the impugned order for maintaining this revision application. The learned appellate Court after applying its mind properly remanded the matter back to the trial Court for decision on merits. The controversy raised in the plaint as well as the written statement filed by the Pakistan Steel Mills cannot be thrashed out unless the evidence is recorded. He made reliance on various documents which are annexed with the objection/counter affidavit submitted by the Respondent No. 1. He also referred to the order passed by this Court on 23.05.2013 in civil revision Application No. 240/2011 wherein the same controversy was raised and the correction of date of birth was allowed not only in the suit but the order passed in the suit was maintained in the appellate Court also. Against the concurrent findings the revision application was dismissed by this Court in limine thereafter, the same applicant challenged the revisional order in the honourable Supreme Court in Civil Petition No. 360-K/2013 but the leave was refused.

5. Heard the arguments. The Respondent No. 1 has filed his Secondary School Certificate dated 8th December 1973 in which his date of birth is 20.04.1955. He has shown the Pakistan Steel Medical Identity card in which also his date of birth is 20.04.1955 so also the same date is mentioned in the E.O.B.I, registration card. One application dated 31.12.1992 is also attached which shows that he requested for the correction of his date of birth on the basis of his matriculation certificate. Two more documents are also available to show that on submission of his matriculation certificate, Pakistan Steel Mills moved for the verification of the matriculation certificate and Board of Intermediate Secondary Education Peshawar on 25.02.2012 verified the matriculation certificate to be true and correct. Even the Respondent No. 1 attached his joining report in which his date was allegedly corrected and shown as 20.4.1955 and he has also attached the copy of list of employees dated 10.03.2011, issued by the Pakistan Steel Mills in which at Serial No. 70, the name of Respondent No. 1 is mentioned with his date of birth as 20.4.1955 and date of retirement is 20.4.2015. The counsel for the applicant disputed the authenticity of this list of employees. Two more documents are available on record to show that the applicant has corrected the date of birth of two employees so the Respondent No. 1 claims the same treatment.

6. Recently I have decided Civil Revision Application No. 174/2010. (P.N.S.C Versus Seaward Surveyors) in which it was held that the Revisional jurisdiction of High Court is always discretionary and equitable in nature and no party is entitled to it as of right. Object of superior Courts while exercising its discretionary jurisdiction is to foster the ends of justice, preserve the rights of parties and to right a wrong and, keeping the object in view, it may in equity, set aside or annul a void judgment of declined to enforce it by refusing to intervene in the circumstances of the case. To me neither any case is made out in which the appellate Court exercised the jurisdiction not vested in it nor committed any failure to exercise a jurisdiction so vested nor the counsel for the applicant succeeded to demonstrate that the learned appellate Court exercised its jurisdiction illegally or with material irregularity. Moreover, it is also well known principle of law that a civil revision, at the instance of a litigant is maintainable on satisfaction of the following circumstances cumulatively, viz.:--

(a) (i) impugned order amounts to a case decided.

(ii) such order must have been passed by any Court subordinate to such High Court.

(iii) such order must not be appealable one.

(b) there must be allegation of jurisdictional error, i.e., to say:

(i) exercise of jurisdiction not vested in the Court below by law, or

(ii) a jurisdiction vested in it by law was failed to be exercised, and/or

(iii) has acted in the exercise of its jurisdiction illegally or with material irregularity.

1. After considering the pros and cons and the documents available on record, there is no hesitation in my mind to grasp that the controversy involved herein cannot be resolved without leading evidence. The question of limitation if any in this case is also a mix question of law and fact. The applicant claims that the suit was time barred for the sole reason that the Respondent No. 1 applied belatedly on the contrary, the Respondent No. 1 tried to demonstrate that his date of birth was corrected much earlier or even at the time of submitting his joining report and he has also attached a list of employees issued by the applicant's H.R Department with the date of birth and retirement. Even this question cannot be decided in isolation

unless evidence is allowed to be adduced by the parties as a whole or en masse. Similar controversy was raised by another employee of the applicant and he filed the suit which was decreed. The applicant had filed Revision Application No. 240/2011 in this Court which was dismissed thereafter Civil Petition No. 360-K/2013 (Pakistan Steel Mills Corporation vs. Muhammad Ali) was filed in the Supreme Court but the leave was refused and orders passed for making correction in the date of birth were maintained.

1. This revision application was dismissed by a short order passed on 26.8.2014. The above are the reasons. It is clarified that this order will not affect the merits of the case and the trial Court shall decide the matter in accordance with law.

(R.A.) Application dismissed

.

PLJ 2015 Karachi 51

Present: Amer Raza Naqvi, J.

MS. GEETI MAHYAR DHATIGARA--Petitioner

Versus

MAHYAR MEHRWAN DHATIGARA--Respondent

Divorce Petition No. 1 of 2014, decided on 5.9.2014.

Parsi Marriage Divorce Act, 1939--

----S. 32(g) Dissolution of marriage--Parties would not be compelled to remain in association against their will--Not living together for more than last three years--Sufficient for grant of petition u/S. 32(g) of Act--Validity--No objection to grant of petition and in opinion of delegates as well parties would not be compelled to remain in union against their will--Marriage between parties was dissolved--Office is directed to prepare decree for dissolution of marriage and send a copy to Registrar of Marriages appointed u/S. 7 of Parsi Marriage & Divorce Act, 1936--Petition stands disposed of. [P. 53] A

Mr.Saadat Yar Khan, Advocate for Petitioner.

Respondent present in person.

Mr. Shorab Patel, Rowena Hansatia, Farida Dastoor, Percy Gazdar and Savak Mistry, Delegates.

Date of hearing: 5.9.2014.

Order

This petition has been filed by the petitioner through her counsel for dissolution of marriage u/S. 32 of the Parsi Marriage & Divorce Act, 1936. This bench was nominated by the Honourable Chief Justice to hear this matter. After nomination notice was ordered to the delegates as required under the Act and it was also ordered that in accordance with Section 43 of the Act proceeding should take place in camera (chamber). After the notice the delegates mentioned above appeared today. Respondent is also present today. Respondent has been identified on the basis of his national identity card. All the delegates present also identified the respondent.

The grounds of dissolution of marriage have been mentioned in Para (7) of the petition. Learned counsel for the petitioner on instructions says that for the reasons mentioned in the plaint petitioner seeks dissolution u/S. 32(g) of Parsi Marriage & Divorce Act, 1936. It has been alleged in the petition that respondent had never been interested to continue marriage and always tried to ignore the petitioner on one pretext or the other. It is also mentioned that petitioner realized that there was no compatibility between the parties yet petitioner decided to continue with the marriage in a hope that situation might improve with the passage of time. The stand of the respondent is that his attitude was never cruel with the petitioner, per learned counsel he is not pressing any such allegation. Per learned counsel ground for present petition is mentioned in Para (7) of the petition and parties are no living together for more than last three years and that fact is sufficient for grant of petition u/S. 32(g) of the Act.

Respondent who is present in person says that in view of the fact that petitioner is trying to get divorce for quite some time and he does not want any association which is not based on willingness of both the parties and he does not want the petitioner to remain in an association of marriage against her will and for such reason he has no objection to the grant of petition. Respondent further says that it is a fact that parties are not living together for more than three years.

The requirements of the Act appears to have been complied with. The delegates present today are also of the opinion that parties should not be compelled to remain in an association against their will. They also say that in the facts and circumstances of the case it would be appropriate and in the interest of justice that marriage may be dissolved, particularly in view of consent of respondent. As required u/S. 43 of the Act these proceedings are held in camera (chamber), however in presence of learned counsel for the petitioner, delegates and the parties. In my opinion the Act provides dissolution of marriage on the ground amongst others mentioned u/S. 32(g) of Parsi Marriage & Divorce Act, 1936. Respondent has extended no objection to the grant of petition and in the opinion of delegates as well parties should not be compelled to remain in union against their will. I therefore grant this petition and marriage between the petitioner and the respondent is dissolved. Office is directed to prepare decree for dissolution of marriage and send a copy to the Registrar of Marriages appointed u/s 7 of The Parsi Marriage & Divorce Act, 1936. Parties are left to bear their own costs. Petition stands disposed of.

(R.A.) Petition allowed

PLJ 2015 Karachi 53

Present: Muhammad AliMazhar, J.

PAKISTAN NATIONAL SHIPPING CORPORATION through Secretary--Applicant

versus

M/s. SEAWARD SURVEYORS--Respondent

Civil R.A. No. 174 of 2010, decided on 6.8.2014.

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

----S. 115--Civil revision--Unequivocally envisions--It is also necessary that there must be allegation of jurisdictional error such as exercise of jurisdiction not vested in Court below or a jurisdiction vested in it by law was failed to be exercised and or Court has acted in exercise of its jurisdiction illegally with material irregularity--It is also well known that while exercising revisional jurisdiction under Section 115, CPC, powers of Court are very limited and narrow--When High Court is satisfied that subordinate Court has committed illegality or material irregularity then High Court can interfere with decision but in exercise of revisional jurisdiction cannot attack finding of facts of subordinate. [P. 57] A, B & C

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

----O. IX, R. 9 & O. XLI, R. 19--Restoration application--Procedure for re-admission of appeal, dismissed for non-prosecution--Validity--Where an appeal is dismissed under Rule 11(2) or Rule 17 or Rule 18, appellant may apply to appellate Court for re-admission of appeal where it is proved that he was prevented by any sufficient cause from appearing when appeal was called for hearing Court may re-admit appeal on such terms as it thinks fit--Instead of applying restoration in correct provision of law, appellant applied for restoration of appeal in appellate Court under Order 9 Rule 9 read with Section 151, CPC--Nevertheless, it is also well settled proposition of law that filing application under wrong provision of law or with wrong nomenclature does not mean to dismiss application or discard it without lawful consideration but on contrary what matters is pith and substance of application and relief claimed therein, whether application is moved under Order 9 Rule 9, CPC for restoration of suit or application filed under Rule 19 or Order 41, CPC which is meant for readmission of appeal dismissed in default at least one thing is common that for restoration of suit and or re-admission of appeal it is necessary to show sufficient cause for previous non-appearance when suit or appeal was dismissed in default--Whether applicant shown any sufficient cause before appellate Court for restoration of appeal and what material irregularity or illegality has been committed by appellate Court while dismissing restoration application--In restoration application though a plea of illness was taken but no medical certificate was produced to substantiate that ground--It was responsibility of appellant's to prove sufficient cause of previous non-appearance and come up with some cogent prove of his illness--It was not obligation of appellate Court to call upon counsel to submit medical certificate--Sufficient cause of his illness if any was to be proved by appellant's counsel who was bound to apply restoration with due care and caution when appellate Court in impugned order already observed that at least for last five dates nobody appeared for appellant to proceed appeal--Provisions warranting dismissal of suit or appeal for non-prosecution may be invoked by Courts and restoration may be also be ordered, provided, a sufficient cause is shown to Court for non-appearance which is lacking and missing in instant case.

[Pp. 57, 58 & 59] D, E, F, G & H

Mr.Waqar Muhammad Khan, Advocate for Applicant.

Mr. MuhammadImran, Advocate for Respondent.

Date of hearing: 6.8.2014.

Order

This Revision Application has been preferred to challenge the impugned order dated 5.5.2010, passed by the IIIrd learned Additional District & Session Judge, Karachi (South) in Civil Appeal No. 147 of 2008.

1. The brief facts of the case are that the applicant filed a civil Suit No. 234/2005 in the civil Court for the recovery of differential amount of increased rent in the sum of Rs.6,45,479.44/-. The respondent filed the written statement however, vide judgment dated 29.10.2008 the suit was dismissed under Order 17 Rule 3 CPC. The learned trial Court observed in the judgment that issues were framed in the month of August, 2006 and despite opportunities given in the interest of justice, the plaintiff failed to attend the Court for last many dates, hence the judgment was passed under Order 17 Rule 3 CPC as the plaintiff failed to adduce any evidence in the matter. The judgment of the civil Court was challenged in Civil Appeal No. 147/2008, which was dismissed for non-prosecution on 31.10.2009. The order of the learned Appellate Court is reproduced as under:--

"Case called repeatedly but appellant and his counsel is absent. From the perusal of the diary shows that since 3.8.2009 to 31.10.2009 this case is fixed 5 dates of hearings but none of the date the appellant and his counsel is present. Today it is now 2:15 P.M. it remained same position. Under the circumstances it appears that the appellant has lost his interest in the matter. Therefore, this civil appeal is dismissed for non-prosecution."

1. After dismissal of the appeal on 31.10.2009, the appellant applied for the restoration under Order 9 Rule 9 C.P.C on 25.11.2009. The application was supported by personal affidavit of Abdul Waheed Chandio, Advocate. In paragraph 3 of the affidavit it was mentioned that senior counsel was appointed DPG and due to rush of work the matter was oversight. It was further contended that after Eid, the advocate became ill and his condition was so critical. This application was also dismissed on 5.5.2010 on the ground that since 3.8.2009 nobody was in attendance on behalf of the appellant and so far as the ground of illness was concerned nothing was produced before the appellate Court to show that the counsel for the applicant was ill or unwell.

2. The learned counsel for the applicant argued that despite showing specific cause for non-appearance the learned appellate Court failed to consider the restoration application. He further argued that due to illness, the counsel could not appear before the appellate Court which was beyond his control. It was further averred that the ground of illness shown in the affidavit was sufficient and there was no necessity to file medical certificate. He further argued that the appeal should have been decided on merits and not on technical grounds. The applicant had made out the case for restoration but the appellate Court failed to consider the application and dismiss the same arbitrarily. In support of his contention, he referred to the case reported in NLR 2002 Civil 663 (Muhammad Faisal v. Muhammad Iqbal) in which the suit was dismissed for non-prosecution but it was restored with the observation that law favors adjudication of disputes on merits. The Advocate took the plea that he was busy before another bench of this Court and learned Single Judge of this Court observed that there was no dispute that the counsel for the plaintiff was not busy on the relevant date before other bench. He then referred to 2003 SCMR 83 (Muhammad Bashir & another v. Province of Punjab & others). In this case, the Lahore High Court allowed the condonation of delay of 26 days which was challenged in the hon'ble Supreme Court but the hon'ble Supreme Court held that the High Court was fully satisfied with the sufficiency of cause shown by the respondents for condonation of delay for vital and sound reasons. It was further held that public functionaries are not entitled to any preferential treatment in the matter of condonation of delay and they are to be treated on equal footing with an ordinary litigant. With the passage of time valuable rights accrues in favour of opposite party which should not be lightly disturbed and destroyed. He then referred to 2010 SCMR 973 (Anwar Khan v. Fazal Manan) in which the hon'ble Supreme Court held that the law favors adjudication on merits and this principle is to be followed unless there, are practical difficulties, which cannot be surmounted. The principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice. Civil Courts are Courts of both law and equity and the in the absence of special reasons, they should also be inclined to do substantial justice and matters of controversy should also be disposed of on merits and not on technical consideration. This is always more important in cases where there is apprehension that the parties concerned shall be seriously prejudiced if the application or suit is not restored.

3. On the other hand, the learned counsel for the respondent argued that no plausible and cogent reason had been shown in the restoration application. No medical certificate was attached with the restoration application. He further argued that even in the trial Court the plaintiff failed to adduce evidence and the matter was decided under Order 17 Rule 3 CPC. In the appellate Court at least for five dates, the counsel for the appellant failed to appear thereafter the appeal was dismissed. It was further contended that the applicant failed to point out any material irregularity or illegality in the impugned order. The suit filed by the appellant was also hit by Section 11 CPC as the same relief was claimed in the Rent Case No. 790/2004 in which the Rent Controller was pleased to decline the prayer for differential of the rent amount but no appeal was filed against that order. Issues were framed on 15.8.2006 and since then the matter was fixed for the plaintiffs evidence but they failed to proceed and ultimately the suit was dismissed. He further argued that no public revenue is involved in this case even the suit filed for the recovery of alleged dues was hopelessly time barred.

4. Heard the arguments. The language used under Section 115 of CPC unequivocally envisions that the civil revision only lies where the impugned order amounts to a case decided which has been passed by any Court subordinate to High Court and such order is not an appealable order. It is also necessary that there must be allegation of jurisdictional error such as exercise of jurisdiction not vested in the Court below or a jurisdiction vested in it by law was failed to be exercised and or the Court has acted in exercise of its jurisdiction illegally with material irregularity. This section consists of two parts, the first part prescribes the condition in which the High Court can exercise the jurisdiction to correct the error in the case decided by its subordinate Courts against which no appeal lies while the latter part prescribes and stipulates the circumstances in which the revisional jurisdiction may be exercised by the High Court. It is also well known that while exercising the revisional jurisdiction under Section 115 CPC, the powers of the Court are very limited and narrow. This Section is enacted to correct certain clauses of errors of jurisdiction committed by the subordinate Courts. When the High Court is satisfied that the subordinate Court has committed illegality or material irregularity then this Court can interfere with the decision but in exercise of revisional jurisdiction cannot attack the finding of facts of the subordinate.

5. What happened in the case in hand that application for restoration was filed under Order 9 Rule 9 C.P.C. Though the proper procedure for re-admission of appeal dismissed for default is provided under Order 41 Rule 19 CPC which postulates that where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 or Rule 18, the appellant may apply to the appellate Court for re-admission of the appeal where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called for hearing the Court may re-admit the appeal on such terms as it thinks fit. Under sub-rule (2) of Rule 11, it is provided that if on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called for hearing the Court may make an order that appeal be dismissed, while Rule 17 of Order 41 pertains to the dismissal of appeal due to appellant's default. Instead of applying the restoration in the correct provision of law, the appellant applied for the restoration of appeal in the appellate Court under Order 9 Rule 9 read with Section 151 CPC. Nevertheless, it is also well settled proposition of law that filing application under the wrong provision of law or with wrong nomenclature does not mean to dismiss the application or discard it without lawful consideration but on the contrary what matters is the pith and substance of the application and the relief claimed therein, whether the application is moved under Order 9 Rule 9 CPC for restoration of suit or the application filed under Rule 19 or Order 41 CPC which is meant for readmission of appeal dismissed in default at least one thing is common that for the restoration of suit and or re-admission of appeal it is necessary to show the sufficient cause for the previous non-appearance when the suit or the appeal was dismissed in default. So in this revision application also the core issue is to decide whether the applicant shown any sufficient cause before the appellate Court for restoration of appeal and what material irregularity or illegality has been committed by the appellate Court while dismissing the restoration application. The hon'ble Supreme Court in the case of Muhammad Bashir (supra) held that Revisional jurisdiction of High Court is always discretionary and equitable in nature and no party is entitled to it as of right. Object of superior Courts while exercising its discretionary jurisdiction is to foster the ends of justice, preserve the rights of parties and to right a wrong and, keeping the object in view, it may in equity, set aside or annul a void judgment of declined to enforce it by refusing to intervene in the circumstances of the case.

6. What transpired to me from the impugned order that it was not the first time that the appellant failed to appear but the order dismissing the appeal clearly shows that since 3.8.2009 to 31.10.2009 the case was fixed on five dates, but nobody appeared for the appellant. The conduct and demeanor of the appellant is self-explanatory and self-evident that at least for five days a callous or reckless behavior was shown and the appeal was left unattended at the mercy of the Court. In the restoration application though a plea of illness was taken but no medical certificate was produced to substantiate this ground. It was the responsibility of the appellant's counsel to prove the sufficient cause of previous non-appearance and come up with some cogent prove of his illness. It was not the obligation of the appellate Court to call upon the learned counsel to submit the medical certificate. The

sufficient cause of his illness if any was to be proved by the appellant's counsel who was bound to apply restoration with due care and caution specially keeping in view the circumstances when the appellate Court in the impugned order already observed that at least for last five dates nobody appeared for the appellant to proceed the appeal.

1. To me neither any case is made out in which the appellate Court exercise the jurisdiction not vested in it nor committed any failure to exercise a jurisdiction so vested nor the counsel for the applicant succeeded to demonstrate while dismissing the restoration application, the learned appellate Court exercised its jurisdiction illegally or with material irregularity. The case law cited by the learned counsel were considered but found distinguishable. No doubt the law favours adjudication on merits but simultaneously, one should not close his eyes or oversight another fragment of great consequence that law helps vigilant and not the indolent. The provisions warranting the dismissal of suit or appeal for non-prosecution may be invoked by the Courts and restoration may be also be ordered, provided, a sufficient cause is shown to the Court for non-appearance which is lacking and missing in this case.

2. As a result of above discussion, this revision application is dismissed in limine.

(R.A.) Application dismissed

PLJ 2015 Karachi 59

Present: Amer Raza Naqvi, J.

PAKISTAN STATE OIL, COMPANY LTD. through its Managing Director--Plaintiffs

versus

M/s. SSGC LPG (PRIVATE) LIMITED through Managing Director and 2 others--Defendants

Suit No. 962 of 2014, decided on 25.6.2014.

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

----O. XXXIX, Rr. 1 & 2--Scope of--Restraining order--Failed to make out prima facie case for grant of restraining order--Tender was not stopped by passing restraining order--Question of--Whether order passed on listed application entire process of business activity can be stopped--Termination of contract were negotiations between parties that supply of L.P.C.--Valid binding contract after claimed termination of agreement--Validity--Defendant has no privy of contract with plaintiff nor defendant can be compelled to supply L.P.G only for purpose of supplying L.P.G. to plaintiff by defendant tender on any illegalities in tender nor his clients intend to participate in tender, they have not even obtained tender document if supplies are so essential they could have participated in tender itself and could have got supply--Matter is between plaintiff and defendants cannot be compelled to cancel or modify his normal business activity. [P. 62] A

Mr. MustafaSafvi, Advocate for Plaintiff.

Mr.Asim Iqbal and Mr. Farmanullah Khan, Advocates for Defendants No. 1 & 2.

Date of hearing: 25.6.2014.

Order

I had heard the learned counsel present at quite some length on 9.06.2014 and in the order passed on such date respective contentions of the learned counsel were mentioned, which are relevant for the disposal of the application listed today as well.

Learned counsel for defendants have filed counter affidavit to this application to which Mr. Mustafa Safvi has filed rejoinder and parties have exchanged such pleadings. In addition to what was argued on 19.06.2014 learned counsel for the plaintiff argued that defendants have not filed any document alongwith their pleadings and moreover proper Power of Attorney has not been filed by the defendants and therefore the replies and pleadings filed by the defendants may not be considered.

Mr. Mustafa Safvi mostly reiterated his arguments advanced on 19.06.2014, however, further submits that through listed application U/O XXXIX Rule 1 & 2 CPC, he has sought for restraining order to the effect that defendants may be restrained from inviting bid or open the tender, advertisement of which was published in daily newspaper "JANG" in its issue dated 16.04.2014. According to learned counsel in case this tender is not stopped by passing restraining order Defendant No. 2 would sell his entire capacity of 100 Matric Tons to the successful bidder and in consequence would not be able to supply L.P.G to Defendant No. 1, who is supposed to supply L.P.G in view of Contract dated 02.10.2012.

Learned counsel appearing for the defendants in reply to the contentions of advocate for the plaintiff states that Defendant No. 2 has no privy of contract with the plaintiff and the impugned Tender is an independent and normal activity of Defendant No. 2 and cannot be stopped at the instance of the plaintiff, who may have remedies against Defendant No. 1 for breach of a contract at all if the same is proved in the Court of law.

I have heard both the learned counsel at length. The factual aspects of the matter are mostly covered in order passed by me on 19.06.2014. The only prayer in the application listed today is that the Tender which is invited and got published by Defendant No. 2 may be stopped as according to plaintiff if that is allowed and process is completed, the entire capacity of Defendant No. 2 will be supplied to the successive bidder and as a consequence nothing would be left with the Defendant No. 2 to be supplied to Defendant No. 1 and in return the Defendant No. 1 will not be able to supply any quantity to plaintiff in consequence of contract subject matter of the present suit. Both the learned counsel have referred certain correspondence between the parties of the suit. It is not a disputed fact that there is no contract between the plaintiff and Defendant No. 2. Moreover, the documents relied upon by both the counsel available at Pages 169 and 171 show that even after claimed termination of contract there were negotiations between the parties and in last para at Page-169 it was clearly discussed that supply of the L.P.G if a fresh agreement is entered into between the parties may be from other sources as well including imported product. This fact shows that supply was not restricted to the source subject matter of the Contract dated 12.09.2012 (Annexure P-7 at Page 61 between Defendants No. 1 & 2 and even if the negotiations were successive, the supply could have been made from any source, now therefore, question is that whether through Order passed on listed application entire process of business activity of Defendant No. 2 can be stopped although Mr. Mustafa Safvi says that his prayer is only to the extent of 30 Matric Tons and not for the entire activity of Defendant No. 2. that would beyond the scope of Order XXXIX Rules 1 & 2 in the circumstances prevailing between the parties with regard to subject matter of the suit.

In my humble view the correspondence filed by the plaintiff and not denied by the defendant does not show that there was a valid binding contract after claimed termination of agreement dated 02.10.2012. Defendants No. 1 & 2 are separate entities and therefore have been impleaded separately as defendants. Correspondence referred by both the counsel also shows that certain approvals were also required by Defendant No. 3 which appears to be still pending according to Mr. Asim Iqbal and only licenses which were granted were on non-profit basis. Mr. Mustafa Safvi submits that the approvals required were available with the plaintiff and have been filed at Pages 175 and 177. It was however contended by Mr. Mustafa Safvi himself

that the plaintiff applied to OGRA for 58 Licenses out of which 36 Licenses have been granted and remaining are in pipeline. It is clear that at the time of claimed termination, 58 licenses were not available with the plaintiff and the termination took place in the month of July, 2013. The suit was filed on 11.06.2014 and in the meanwhile according to Mr. Safvi parties were negotiating, correspondence of which he has annexed but it is an admitted position that no fresh agreement was executed between the parties.

In view of above situation in my humble view the plaintiff has failed to make out prima-facie case for grant of CMA No. 7867/14 and it was published as a routine business activity of Defendant No. 2 and Defendant No. 2 has no privy of contract with the plaintiff nor Defendant No. 2 can be compelled to supply L.P.G to Defendant No. 1 only for the purpose of supplying L.P.G. to the plaintiff by Defendant No. 1. Mr. Safvi has not impugned the tender on any illegalities in the tender nor his clients intend to participate in the tender, they have not even obtained tender document if supplies are so essential they could have participated in the tender itself and could have got the supply. The matter is between Plaintiff and Defendant No. 1 and Defendant No. 2 cannot be compelled to cancel or modify his normal business activity.

In view of above listed application is dismissed.

(R.A.) Application dismissed

PLJ 2015 Karachi 62

Present: Syed Hasan Azhar Rizvi, J.

MUHAMMAD DAWOOD--Petitioner

versus

UNITED INSURANCE CO. PAKISTAN LTD. KARACHI & 8 others--Respondents

Insolvency Petition No. Nil of 2012, decided on 7.10.2013.

Insolvency (Karachi Division) Act, 1909--

----S. 15(3)(a)--Sindh Chief Court Rules, R. 586(1)(2)--Petitioner had failed to fulfill mandatory requirement of Sections 15(3)(a) of Insolvency Karachi Division Act and Rule 586(1)(2) of Sindh Chief Court Rules--No books of account was maintained--No documentary evidence and audit report to effect that petitioner sustained losses has been produced by petitioner before Official Assignee--Whole case of petitioner to sustain losses is based on theft and amount of ransom paid by petitioner--Petitioner has failed to make out his case for grant of insolvency certificate as claimed for under instant petition which was not maintainable.

[P. 65] A

PLD 2012 Sindh 522, ref.

Mr.Ziauddin Junejo, Advocate for Petitioner.

Mr.Zeeshan Abdullah, Advocate for Respondent No. 1.

Mr.Suleman Huda, Advocate for Respondent No. 2.

Kh. Raza Noman, Advocate for Respondent Nos. 4, 5 and 6.

Syed Bashir Hussain Shah, Advocate for purchaser Pervaiz Ahmed.

Mr. Qadir Bux Umrani, Official Assignee.

Date of hearing: 2.10.2013.

Order

Petitioner has filed present insolvency petition under the Insolvency (Karachi Division) Act, 1909.

Learned Counsel for the petitioner submits that the petitioner has failed to repay the debts of the creditors. petitioner is running his business of Travel and Tour Operator in the name and style of M/s. Karwan-e-Azam for the last ten years. Creditor No. 1 declared the petitioner as defaulter. petitioner obtained personal loan from Creditor No. 2/bank. It is the case of the petitioner that on 13.08.2012 when the petitioner was present in his office two culprits entered into his office and had taken cash of Rs.6 Million from the locker of the petitioner on gun point and also took away the. petitioner to some unknown place and demanded ransom of Rs.10 Million from the son of the petitioner. Family of the petitioner arranged ransom amount after selling valuables and taking loans and paid the ransom amount to the Kidnappers, who released the petitioner on 17.08.2012 and FIR No. 205/2012 was lodged on 23.08.2012 at P.S. Saddar. Learned Counsel for the petitioner contends that the petitioner has no moveable and immovable assets, hence present Insolvency petition has been filed to declare the petitioner insolvent.

Notices were issued to the creditors and learned Official Assignee. Learned Official Assignee filed Reference No. 01/2013 on 01.3.2013 and detailed statement has been filed by the Counsel for the Creditor No. 1. Learned official Assignee stated in the aforementioned Reference that the petitioner has not maintained books of accounts. Learned Official Assignee sent letters to the Creditors of the petitioner to file statement of account to furnish outstanding dues against the petitioner. The detail of outstanding dues has been given in Para-6 of Reference No. 01/2013. Learned Official Assignee stated that as per his own statement the petitioner nowhere stated that he has sustained losses in his business. All papers, documents and vouchers of business of the petitioner have not been produced in the office of the Official Assignee except photocopies of statement of accounts issued by the Creditors/banks. No detailed of the amount which had been taken from the creditors by the petitioner, whether he spent the same, has been provided to the Official Assignee. No compliance of mandatory Section 15(3)(a) of the Insolvency Karachi Division Act and Rules 586(1)(2) of Sindh Chief Court Rules have been complied with. Learned Official Assignee filed statement on 02.10.2013 to the effect that police has submitted final report/Challan No. 54/2013 on 7.5.2013, wherein it was submitted that FIR No. 205/2012 dated 23.8.2012 lodged by the petitioner was false and same was lodged in collusion with his son for obtaining monetary gains and defrauding the United Insurance Limited.

Counsel for the petitioner filed objections to the aforesaid reference, wherein it is admitted that petitioner made an innocent mistake as regards non-supply of books of account. petitioner had been doing business of Travel Agency and was registered with IATA. He contends that nature of Travel Agency business was that normally books of accounts cannot be kept. Since 2009 the petitioner sent audit accounts to IATA as a mandatory requirement for continuation of the Travel Agency's registration.

Mr. Zeeshan Abdullah learned Counsel for Creditor No. 1 argued that the present petition is not maintainable. He has referred to Civil Suit Nos. 805 and 806 of 2012 filed by the petitioner in the Court of VI Senior Civil Judge, Karachi-South against the Creditor No. 1 and IATA and trying to get benefit of present Petition. He has also referred to certified copy of the Memo of Criminal Bail Application No. 104/2013 filed by the petitioner in this Court wherein it is stated that:

"That besides the above suits the Applicant also filed an Insolvency Petition bearing No. Nil of 2012 on 31.10.2012 before the Hon'ble High Court of Sindh, against, inter alia, the complainant/united Insurance Company, in which the Applicant has sought to be declared insolvent and to restrain the Creditors (including the Complainant) not to process and misuse the negotiable instrument lying with them. The learned Official Assignee was pleased to issue notice to the Complainant Company and other creditors on 20.11.2002 and directed them to appear before him on 5.12.2002 with complete original documents of all outstanding amounts against the Applicant. It is necessary to mention at this juncture that after filing the Insolvency Petition, the above mentioned suits were withdrawn by the Applicant.

Learned Counsel for creditors have placed reliance upon PLD 2012 Sindh 522 (Navaid Ahmed Siddiqui and 2 others versus Official Assignee).

I have heard learned Counsel for the parties and perused the record with their assistance carefully.

After carefully examining the material available on record, it transpires that petitioner has failed to fulfil mandatory requirement of Sections 15(3)(a) of the Insolvency Karachi Division Act and Rule 586 (1)(2) of Sindh Chief Court Rules. Admittedly no books of account was maintained by the petitioner. No documentary evidence and audit report to the effect that petitioner sustained losses has been produced by the petitioner before the Official Assignee. Whole case of petitioner to sustain losses is based on theft and amount of ransom paid by the petitioner but the challan submitted by the police belied the version of the petitioner. Learned Counsel for the creditors has rightly pointed out that the petitioner in the Civil and criminal proceedings filed by the creditors trying to take advantage of the present Petition. petitioner has failed to make out his case for grant of Insolvency Certificate as claimed for under the present petition and instant petition is not maintainable.

Above are the reasons of my short order dated 2.10.2013 whereby present petition was dismissed.

(R.A.) Petition dismissed

PLJ 2015 Karachi 66 (DB)

Present: Muhammad Ali Mazhar and Shahnawaz Tariq, JJ.

SYED MUHAMMAD ABBAS RIZVI and others--Petitioners

versus

FEDERATION OF PAKISTAN through the Secretary Establishment Division, Islamabad and others--Respondents

Constitutional Petition No. D-1085, 513, 1760, 2731, 3883, 4242 of 2013 and 4454 of 2012, decided on 3.10.2014.

Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985--

----R. 11(2)(c)--Civil Servant Act, (LXXI of 1973), 1973, S. 8--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Seniority of members of police cadre--Date of appointment in PSP was amended--Antedated seniority was quite astonishing and inexplicable--Service on basis of selection made on recommendation of governor--Seniority in a post to which a civil servant is promoted would take effect from date of regular appointment to that post--Seniority of persons appointed to post shall be counted from date of their regular appointment against a post in service subject to different conditions such as persons selected for initial appointment on basis of same competitive examination their seniority on appointment shall reckon inter se in accordance with merit, position--Officers of armed forces who may be selected for appointment to a cadre post on regular basis in a batch they will retain their inter-se-seniority on appointment--If date of regular appointment of officers of two or more provinces be same, seniority inter se shall be determined on basis of their date of regular appointment to post of superintendent of police--Ante dated seniority would be allowed to encadred officers of province without considering material aspect that PSP follow one and same combined seniority list and if province will send a recommendation after inordinate delay without any just cause--Seniority of police officers will be upset and without performing requisite length of service to a particular post, they will also claim future promotions on basis of their , ante dated seniority--Such type of ante-dated seniority is neither permissible nor it is true spirit or essence of Rule 11(2)(c)--Petitioners had no independent of self-determining right to claim particular seniority but their right of encadrement or seniority if any is based and dependent upon recommendation which is made by province so they cannot claim any vested right if lethargic attitude is shown in making recommendations for appointment in PSP on time.

[Pp. 77, 79, 80, 81 & 82] A, B, C, D, E, F, G & H

Constitution of Pakistan, 1973--

----Art. 199--Police Service of Pakistan, (Composition, Cadre and Seniority) Rules, 1985, Rr. 7 & 11(2)(c)--Seniority in service--Promotion--Ante-dated seniority--No independ--Predominantly due to inordinate delay or inaction on part of province in making the, recommendations for appointment under Rule 7 of PSP Rules, 1985 on time, petitioners are not entitled to claim ante-dated seniority--Claim of ante-dated seniority is rejected and their seniority will be reckoned from date of their notification of encadrement in PSP and not from date of arising of vacancy--Recommendations immediately for appointment of members of police cadre in accordance with Rule 7 of PSP Rules, 1985 upon arising of vacancies against their share in PSP and they are also directed to send recommendations for remaining and or unfilled vacancies in PSP--Benefit would be given in future to all those members of police cadre who are recommended for appointment in PSP by province immediately and promptly upon occurrence of vacancy in PSP--In order to avoid complications and combative repercussions in future, Secretary, is also directed to issue notification of encadrement immediately upon receiving recommendations from province for appointment so that retroactive or ex post facto seniority issue/dispute would not crop up or come into sight amongst members of PSP--If decision on any recommendation of province is pending, notification of encadrement shall be issued immediately. [P. 83] I

Mr. Khalid Javed Khan, Advocate for Petitioners (in CP No. D-1085/2013).

Mr. Kazi Abdul Hameed Siddiqui, Advocate for Petitioner (in CP No. D-513/2013).

Mr.GhuIam Akbar Khan Jatoi, Advocate for Petitioners (in CP No. D-1760/2013, CP No. D-2731/2013, CP No. D-3883/13 and CP No. D-4242/2013).

Ms.Shazia Hanjrah, Advocate for Petitioner (in CP No. D-4454/2012).

Mr. Shahab Usto, Advocate for Respondent Nos.4 & 5 (in CP No. D-1085/2013).

Respondent Nos.4 and 5 are also present.

Mr. Asif Hussain Mangi, Standing Counsel.

Mr. Shamsuddin, Section Officer, Establishment Division, Government of Pakistan, Islamabad.

Mr.Abdul Jaleel A. Zubedi, AAG

Mr. Asad Malhi, ASP Clifton and Akhtar Farooq, ASP Ferozabad are also present.

Date of hearing: 30.5.2014.

Judgment

Muhammad Ali Mazhar, J.--This common judgment will dispose of the aforementioned constitutional petitions.

1. If we look into the brief facts of the petitions, the relief claimed therein is identical. In fact, all the petitioners have in one voice claimed their encadrement to the PSP in terms of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 and the seniority as per Rule 11(2)(c) of the Rules, 1985 which is a burning question in these petitions. They have also prayed that the respondents be directed to fill all posts of P.S.P. in accordance with prescribed quota of 40% meant for P.S.P in the Provincial Police. They have further prayed that the respondents be restrained from convening Departmental Selection Board for promotion P.S.P. in BPS-18 to BS-20 posts before awarding seniority to the petitioners in BS-18 as per Rule 11(2)(c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. Some of them have prayed that they should be given seniority against the seat of Province of Sindh from the date of occurrence of vacancy between 1999 and 2002. One of the petitioners has sought directions to notify his encadrement in pursuance of recommendation and approval of the summary by the Chief Minister of Sindh.

2. The bone of contention in this case is whether under Rule 11(2)(c) of Police Service of Pakistan (Composition. Cadre and Seniority) Rules, 1985 the seniority of the members of the police cadre of Province shall be reckoned from the date when vacancy occurred in the senior cadre reserved for that particular province as specified in the schedule. It is also the case of the petitioner that after lapse of many years the respondents have started process of encadrement of eligible police officers from Province of Sindh to P.S.P. At present 82 vacant posts of S.P. are available against which the Provincial Police Officer of the Sindh are entitled to the encadrement, out of which the respondents only encadred 27 officers vide notification dated 17.12.2012 in which it is provided that seniority of the officers shall be reckoned as per Rule 11(2)(c) of the Rules, 1985. Despite mentioning the reference of Rule 11(2)(c), the seniority has not been given to the officers of the Province of Sindh. One more important question is also involved whether police officers of a Province may be encadred with effect from date of occurrence of vacancy in the P.S.P. with ante-dated seniority despite the fact that when the vacancy occurred in the share of Province, they were not the part of Sindh Police or they joined the Sindh Police after the date of occurrence of vacancy in P.S.P. All the learned counsel agreed that the above petitions may be disposed of at katcha peshi stage and they argued the petitions extensively.

3. Mr.Khalid Javed Khan, learned counsel for the petitioners in C. P. No. D-1085/2013 argued that the petitioners initially joined the Sindh Police Service. The P.S.P. constituted under the Police Service; of Pakistan (Composition, Cadre and Seniority) Rules, 1985 for the senior post in grade 17 and above i.e. ASP, SP, DIG, A1G and I.G. in the P.S.P. with the ratio of 60/40 for Federal and Provincial Officers of P.S.P. The senior most officer is required to be encadred when the first vacancy occurred, thereafter, a provisional joint seniority list of both Federal and encadred Provincial Officers is made which is followed by final seniority list and the promotions are made on the basis of that seniority list. The case of the petitioners is not at all the case of promotion, but this is a case of encadrement as specified in Rule 7 of PSP Rules, 1985. It was further contended that in this case Section 8 sub-section (3) of Civil Servant Act, 1973 applies and Section 8 (4) of the Civil Servant Act has no germane or relevancy. He pointed out that the Petitioner Nos. 1, 4, 8, 9, 10 and 12 have been encadred vide notification dated 17.12.2012 but the notification of date of encadrement of each one of them has not been issued by the Federal Government in terms of Rule 11(2)(c) of Rules, 1985 and so far as the case of Petitioner Nos.2, 3, 5, 6, 7 and 13 is concerned their cases have been sent by the Provincial Government for encadrement. It was also averred that right now neither the FST is functional nor any order of the departmental authority in force, hence the petitioners could not invoke the jurisdiction of FST. The learned counsel appearing for the other petitioners also argued their petitions on the same lines and they also adopted the arguments of Khalid Javed Khan, Advocate. The learned counsel for the petitioners relied upon the following case law:--

(1) PLD 1981 S.C. 612 (S.H.M.Rizvi v. Maqsood Ahmed). Section 22 Service Tribunals Act (LXX of 1973). Section 4 Civil Servant (Appeal) Rules, 1977. Seniority list. Gradation list provisional is to be finalized after inviting and considering objections. Right of appeal conferred only against a "final order whether original or appellate". No final order having ever been passed on respondent's objection nor seniority list having been finalized, respondent's appeal held not competent under Section 4 of Service Tribunals Act, 1973.

(2) 2011 PLC (C.S) 1456 (Muhammad Malik v. Province of Sindh). Appointment of provincial police cadre to members of police service of Pakistan (PSP) Scope. No posting of a provincial cadre police officer on a post specified in schedule of police service of Pakistan (Composition, Cadre and Seniority), Rules, 1985 could be made without first being appointed in PSP cadre in accordance with Rule 7 thereof.

(3) 1995 PLC (CS) 1178 (Mian Muhammad Aslam v. The Auditor General of Pakistan). Articles 212 of Constitution. Jurisdiction of High Court to entertain constitutional petition at the behest of civil servant was not ousted in respect of all matters. Appeal would lie before Service Tribunal against order passed by Departmental Authority. No order in the matter of civil servant was made by Departmental Authority.

(4) 2011 PLC (C.S) 562 (Riffat Hassan & others v. Federation of Pakistan). The learned division bench of this Court dilated upon various dictums and Concluded as under:--

"(1) Article 212 of the Constitution bars jurisdiction of this Court in respect of matter relating to terms and conditions of service including disciplinary matters of all persons who are or have been in the service of Pakistan.

(2) However, for the purpose of barring this jurisdiction there must be an order, whether original or appellate, and if any such order has not been passed the aggrieved civil servant can resort to invoke jurisdiction of the Court for the purpose of alleviating his grievance.

(3) Word 'final' has been deleted from Section 4 of the Civil Servants Act but such deletion does not mean that every order passed by the Departmental Authority would be challengeable before the Service Tribunal. It is only an order which determines a substantive point in issue relating to terms and conditions of service or disciplinary action which can be challenged before Service Tribunal. Any procedural determination by the Departmental Authority would not be so challengeable therefore, deletion of word 'final’ does not enlarge the scope of appeal envisaged in Section 4 of the Act.

(4) As far as, Removal from Service (Special Powers) Ordinance, 2000 is concerned, since appeal was provided only when final order of penalty has been passed therefore, till such final order has not been passed writ jurisdiction of this Court is not ousted and while scrutinizing whether the departmental action is in violation of law or not this Court can exercise jurisdiction as long as the final order of punishment has not been passed.

In both these constitutional petitions what has been challenged is initiation of departmental proceedings. Therefore, there is no order per se in both the petitions which is challengeable before the Federal Service Tribunal and therefore, on the touchstone of Article 212 of the Constitution, these Constitutional petitions are not barred".

1. Mr.Asif Mangi, learned Standing Counsel assisted by Mr.Shamsuddin, Section Officer, Establishment Division, Islamabad contended that there are two categories involved one is the persons encadred but reverted back in view of the judgment of hon'ble Supreme Court and another category is the cases not sent for the encadrement. The cases for encadrement recommended by the Sindh Government shall be considered against 40% quota. The Civil Servants (Appeal) Rules, 1977 entitles a civil servant to appeal to the Tribunal against an order which alters his conditions of service, pay, allowances or pension or interprets to his disadvantage to the provisions of any rules whereby his conditions of service, pay, allowances or pension are regulated. The petitioners want ante-dated seniority which is not possible. A judgment of Federal Service Tribunal, Islamabad was also referred to which was passed in Appeal No. 33 (L) CS/2008. In the FST, appellant had challenged the notification. of Establishment Division under which twelve members of police of Khyber Pakhtunkhwa were encadred as S.P. in PSP in accordance with Rules 7 and 11(2)(c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 but their ante-dated seniority was set aside by the FST and the notification issued in the year 2007 with retrospective seniority awarded w.e.f. 1997 was declared arbitrary to the extent of its retrospective effect and the establishment was directed to ensure that in future encadrement of provincial police officers in PSP shall be done every year. The FST judgment has been challenged in the hon'ble Supreme Court and leave to appeal has been granted in Civil Petition Nos. 907 and 957/2011. The learned standing counsel further argued that this Court has no jurisdiction to entertain this petition keeping in view the bar contained under Article 212 of the Constitution. He referred to the following case law:--

(1) PLD 1981 Karachi 750 (Khalilur Rehman v. Govt. of Pakistan). Jurisdiction of High Court is ousted in regard to all such matters which fall within ambit of authority of Tribunal to adjudicate even though the Tribunal is conferred with jurisdiction limited to some of matters relating to terms and conditions of service.

(2) 2002 PLC (CS) 182 (Punjab Small Industries Corporation v. Ahmad Akhtar Cheema). Constitutional Jurisdiction of High Court would be declined, where petitioner had not exhausted all remedies available to him. Where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by High Court is bound to produce sense of distrust in statutory Tribunals.

(3) 2011 SCMR 592 (Govt. of Sindh v. Nizakat Ali & others). Matter relating to terms and conditions of civil servant. High Court, before entertaining such constitutional petition, may determine as to whether jurisdiction to decide such a case is barred.

(4) 1998 SCMR 2280 (Khalid Mahraood Wattoo v. Govt. of Punjab & others), Article 199 of the Constitution. If there is any law or rule or instructions regarding allocations of posts to the Province and the same affected the rights of civil servant in his service. Article 212 of the Constitution was a bar in the way of the affected civil servant in maintaining a Constitutional petition under Article 199 of the Constitution.

6. Mr.Shahab Usto, learned counsel for the Respondent Nos.4 and 5 in C.P.No. D-1085/2013, argued that under Rule 3 of Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1973 the appointments are made by promotion, Part-II of the Rules deals with the promotion and transfer synonymously. However, Part-III is quite distinct. He further argued that the petitioners' case cannot not be excluded from the purview of the Section 8 (4) of the Civil Servant Act and the only provision applicable to the petitioner is Section 8 (4) of the Civil Servant Act. He also referred to Sr. No. 13 of Estacode which relates to the framework and procedure applicable to the Police Service of Pakistan which provides that appointment to the post of grade 18 will be made by the promotion of officers in grade 17 of the Police Group and also of grade 17 Officers of the Provincial Police of the rank of DSP of requisite service and experience who are recommended by Provincial Government. The date for determination of seniority of the Provincial Officer under Section 8 (4) will take effect from the date of regular appointment to the post. He further argued that the hon’ble Supreme Court over and again held that the instructions, orders and notifications have the effect of rules in view of Section 25(2) of the Civil Servant Act, 1973 and the departmental promotion authorities must strictly adhere to the instructions contained in the Estacode and any departure from the same may cause injustice to a deserving person. Learned counsel further argued that the petitioner cannot claim benefit of the order passed in the case of Mr.Ali Sher Jakhrani, which was passed only for implementation of order. No point of law was laid down therefore the petitioner cannot claim the same treatment in view of the case of Hameed Akhter Niazi and Tara Chand. Rule 11(2)(c) has two limbs that the appointment of Provincial Officer to PSP will be on a yearly basis and they will retain the same seniority and in the same service as in the provincial cadre. The second limb says that their inter-provincial seniority will start when the vacancy arose in the said year in that province. There is no provision of back dated seniority as erroneously claimed by the petitioners. In support of his arguments, he relied upon the following case law:--

(1) 1999 SCMR 819 (Muhammad Yar Buttar v. Board of Governors of Overseas Pakistanis Foundation). Appeal under Section 4 of Service Tribunals Act, 1973 is maintainable only when the question relates to enforcement of terms and conditions of service of an employee as envisaged by the Act. It will depend upon the nature of each order as to whether appeal against such order is maintainable or not because the abovementioned situations deal with procedural matters.

(2) PLD 1991 S.C. 82 (Wajahat Hussain Assistant Director Social Welfare Lahore v. Province of Punjab). Regularization of seniority from a retrospective date was not permitted and Information Department was thus wrong in blessing such performance of the Departmental Selection Committee and advising the adoption of it for preparation of the seniority list.

(3) 1986 SCMR 1953 (Muhammad Arshad Saeed v. Pakistan & others). Police Service of Pakistan (Cadre and Composition) Rules, 1969. Petitioner pre-selected for Police service in 1969, graduated in 1971 and finally selected through. Public Service Commission in 1972 claiming seniority/entry into service to be ante-dated. Seniority or induction into service in case of initial recruitment cannot be taken to a date earlier to actual selection or taking over of post.

(4) 1990 SCMR 1216 (Farman Ali v. Muhammad Ismail). On no principle executive authority could be held invested in the matter of direct appointment, to make the appointment retrospective from a date earlier to the selection in accordance with law. No law exists whereby retrospective regularization of direct recruits could be ordered by the executive authority. Appellants' claim of seniority over respondents was thus not sustainable.

(5) 2010 PLC (C.S) 946 (D.G. Intelligence Bureau v. Amir Mujahid Khan & others). Regular seniority from retrospective date is not permitted. Civil servants who were senior in lower grade retain inter se seniority in higher grade in case they were promoted in a batch.

(6) 2012 SCMR 1133 (Naveed Ahmed v. Federation of Pakistan). Validity Laws/rules concerning seniority, which included Sections 8 (2) and 8 (3) of the Civil Servants Act, 1973, Rule 7(4) of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 and Rule 2 of Civil Servants (Seniority) Rules, 1993 did not cater for ante-dated seniority. Grant of ante-dated seniority to the appellant would have upset the entire service structure of the District Management Group for the year 1995, which in circumstances of case was not justifiable at all.

(7) 2001 PTD 2383 (Additional Collector Sales Tax Lahore v. Rupafab Limited & others). Rules which are merely subordinate legislation cannot override or prevail upon the provisions of the parent statute and whenever there is an inconsistency between Rules and Statute, the latter must prevail.

7. Heard the arguments. First we would like to take up the issue of maintainability. Counsel for the respondents have argued that the petition is not maintainable and the jurisdiction of this matter lies to Federal Service Tribunal. It is an admitted fact that there is no order in field at the moment against which an appeal could have preferred in the F.S.T. In this regard the learned counsel for the petitioner referred to the case of S.H.M.Rizvi in which the hon'blc Supreme Court has held that the right of appeal conferred only against a "final order whether original or appellate". No final was passed in the above case nor seniority list was finalized hence appeal was not found maintainable. In the case of Mian Muhammad Aslam (supra) also the jurisdiction of the High Court was dilated upon vis-a-vis. Article 212 of the Constitution in which it was held that the ouster of jurisdiction is limited in those matter which could be taken up by the Service Tribunal but no order in the matter was passed by the departmental authority. The case of Riffat Hassan (supra) is also based on the similar premise and endorsed the view that for the purpose of barring jurisdiction of the High Court there must be an order whether original or appellate if any such order has not been passed, the aggrieved civil servant can invoke the jurisdiction of High Court for alleviating his grievance. The learned Standing Counsel and Mr.Shahab Usto referred to the cases of Khalilur Rehman, Punjab Small Industries Corporation, Govt. of Sindh v. Nizakat Ali & others and Khalid Mahmood Wattoo (supra) in all such cases Article 212 was under discussion and the dictum laid down in the above precedents do show that in the matters relating to the terms and conditions of the civil service the appropriate remedy would be to invoke the jurisdiction of service tribunal. In the present case the encadrement under Rule 7 is not an issue but what is in issue is the award of seniority from the date of vacancy arose under P.S.P. for that province. In the notification dated 17.12.2012 issued by Establishment Division, Government of Pakistan it is mentioned that inter se seniority of the officers in PSP shall be determined in accordance with Rule 11(2)(c) of P.S.P. Rules, 1985. The learned Standing Counsel during his argument stated that the seniority cannot be granted as claimed by the petitioners from the date of vacancy arose in the Province of Sindh. In an identical case, FST has set aside the notification to the extent of its retrospective effect and matter is now pending in the hon'ble Supreme Court. It is clear that there is no final order of any departmental authority in field which should have been assailed in the Federal Service Tribunal and one more crucial aspect in this regard is the nonfunctioning of F.S.T. The hon'ble Supreme Court in the case of Sarfraz Saleem v. Federation of Pakistan reported in" PLD 2014 S.C. 232 has already dealt with this situation and held that in so far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned it is open ended but subject to certain limitations prescribed therein, one of which is with reference to the availability of other adequate remedy to the aggrieved party. It was further held that constitution petition should be entertained in accordance with the law until establishment and functioning of the FST, as bar of Article 212 of the Constitution would not apply to such proceedings. Through the instant petitions, the petitioners have not challenged the seniority of others but they have sought the declaration that they are entitled to the seniority in the PSP from the date of vacancy arose, against which there is no order of any departmental authority. Basically they want implementation of Notification dated 17.12.2012 issued by Establishment Division, Government of Pakistan with reference to Rule 11(2)(c), so we have no hesitation in our mind to hold that the petition is maintainable and objection to the maintainability is overruled.

8. If we look into the definition clause of the PSP Rules, under Clause (d) of Rule (2) service means the Police Service of Pakistan as referred to in Rule (3). The Police Service of Pakistan consists of persons appointed in accordance with the Police Service of Pakistan (Composition and Cadre) Rules, 1969; the persons other than, those mentioned in Clause (a) appointed to the police group whose names appeared in the gradation list issued on 28.8.1980; persons appointed in the police service after that date but before the commencement of these rules and persons appointed to the service in accordance with these rules. Under Rule (7), it is provided that the appointment of members of police cadre of a province shall be appointed to the service on the basis of selection made on the recommendation of the Governor provided that appointment shall not exceed 40% of the senior cadre posts in that province as specified in schedule. It would be advantageous to reproduce Rule 7 and Rule 11 of the PSP Rules, 1985 which are as under:--

1. Appointment of members of Police cadre of a Province.--Members of the police cadre of a Province shall be appointed to the Service on the basis of selection made on the recommendation of the Governor.

Provided that appointment of members of the police cadre of a Province under this rule shall not exceed 40% of the senior cadre posts in that Province as specified in the Schedule.

1. Seniority.--(1) The members of the Service referred to in clause (a) and (b) sub-rule (2) of Rule 3 shall retain the same seniority as is shown in the gradation list as it stood immediately before the commencement of these rules.

(2) Persons appointed to the Service in accordance with these rules shall count seniority from the date of regular appointment against a post in the Service subject to the following conditions, namely:--

(a) persons selected for initial appointment on the basis of the same competitive examination shall on appointment reckon seniority inter se in accordance with the merit position obtained in that examination.

(b) officers of the Armed Forces selected for appointment to a cadre post on regular basis in a batch shall on appointment retain their seniority inter se.

Provided that officers of the Armed Forces appointed in basic Grade 17 in a year shall be treated as senior to probationers appointed in the same year on the basis of the competitive examination held by Commission.

(c) Members of the police cadre of a particular Province selected in a year shall on appointment to the Service take seniority inter se in the Provincial cadre and in keeping with that sequence, each such member shall reckon his date of regular appointment to the Service from the day the respective vacancy arose in the senior cadre posts reserved in that Province for such officers as specified in the schedule:

Provided that, if the date of regular appointment of officers of two or more Province be the same their seniority inter se shall be determined on the basis of their date of regular appointment to the post of Superintendent of Police.

(d) officers selected for appointment in the same batch shall on promotion retain their seniority as the lower post; and

(e) "the general principal of seniority set out the Establishment Division O.M. No. 1/16/69-D. II dated the 31st December, 1970, shall apply in matters not covered by these rules.

9. At this juncture, we cannot ignore Section 8 of the Civil Servant Act, 1973 which governs the seniority. This section provides that for administration of a service cadre or post the authority shall cause a seniority list but nothing shall be construed to confer any vested right to a particular seniority. Sub-sections (3) and (4) of Section 8 have a significant impact, if we dissect both these Sections separately, the outcome of sub-section (3) envisions that the seniority on initial appointment shall be determined as may be prescribed while sub-section (4) made it clear that seniority in a post to which a civil servant is promoted shall take effect from the date of regular appointment to that post. For ready reference, Section 8 of the Civil Servant Act, 1973 is also reproduced as under:--

1. Seniority.--(1) For proper administration of a service cadre or (post) the appointment authority shall cause a seniority list of the members for the time being of such service, cadre or (post) to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or (post) as the case may be.

(2) Subject to the provisions of sub-section (1), seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same (service or cadre) whether serving in the same department or office or not, as may be prescribed.

(3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.

(4) Seniority in (a post service of cadre) to which a civil servant is promoted shall take effect from the date of regular appointment to that post.

Provided that civil servants who are selected for promotion to a higher (post) in one batch shall, on their promotion to the higher (post) retain their inter-se-seniority as in the lower (post).

1. Though the Civil Servant Act, 1973 is the parent law but under this Act different rules are also framed for different matters under Section 25 of the Civil Servant Act. As a general rules pertaining to the seniority, the Civil Servant Seniority Rules, 1993 are already in vogue but according to Rule (2) these rules shall apply to all civil servants except those governed under PSP Rules, 1985, the Occupational Groups (Probation, Training and Seniority) Rule, 1990 and the Establishment Division O.M. No. 1/2/74 which was amended vide O.M.No. 2/1/75 dated 3.3.1976 as amended from time to time. It is obvious that the Civil Servant (Seniority) Rules. 1993 are not applicable to the P.S.P. However for deciding or determining the seniority of P.S.P. we have to revert back to PSP Rules, 1985. In the Civil Servant Act, 1973, Appointment, Probation, Confirmation, Seniority and Promotion are separately provided under Sections 5 to 9 respectively. The case of the petitioners is the case of encadrement which means appointment to the service under Rule 7 of PSP Rules, so it is an initial appointment and for the purpose of seniority Section 8 (3) applies.

2. In our view, the rationale behind allowing 40% quota to the provinces in P.S.P, is to maintain harmony amongst the federating units with equal rights and 40% members of the police cadre of the province are appointed to the service on the basis of selection made on the recommendation of the Governor. The seniority of persons appointed to the post shall be counted from the date of their regular appointment against a post in the service subject to different conditions such as the persons selected for initial appointment on the basis of same competitive examination their seniority on appointment shall reckon inter se in accordance with the merit, position. Officers of armed forces who may be selected for appointment to a cadre post on regular basis in a batch they will retain their inter-se-seniority on the appointment. If we read Rule 11(2)(c) of PSP Rules, 1985 in bits and pieces, what transpires from clear wording of this rule is that the member of police cadre of province selected in a year shall on appointment to the service take seniority inter se as in the provincial cadre. The next limb is keeping with that sequence member shall reckon his date of regular appointment to the service from the day the respective vacancy arose in the senior cadre posts reserved in that province. This rule directs or rather put on the right track to maintain inter se seniority among the members selected in a year thereafter, the date of regular appointment shall be reckoned from the date the respective vacancy arose. The proviso attached to this rule provides that if the date of regular appointment of officers of two or more provinces be the same, the seniority inter se shall be determined on the basis of their date of regular appointment to the post of Superintendent of Police.

12. The word "seniority" means the fact or state of being older or higher in rank or status than someone else which is a position earned by reason of longer service or higher rank. Seniority broadly means the length of service with an employer and those who have more experience with a task or in a job position managed those with less experience. It is also used as a means of gauging the relative status of one employee with respect to another based on length of service. A precedence of position, especially precedence over others of the same rank by reason of a longer span of service while the term "anti-date" means to be of an earlier date than precede in time or to assign to a date earlier than that of the actual occurrence and to date as of a time before that of actual execution.

1. No doubt under Rule 11(2)(c) each member shall reckon his date of regular appointment to the P.S.P. from the date when vacancy arose in the senior cadre reserved for that particular province, but this rule cannot be read in isolation rather before applying this rule, another Rule 7 of PSP Rules should also to be kept in mind under which members of the police cadre of a Province are appointed to the Service on the basis of selection made on the recommendation of the Governor. What implies in this rule is that as soon as vacancy arises in relation to 40% quota of the province in PSP the province should immediately send their recommendations for encadrement in PSP. In our view, this would lead to an absurd and irrational interpretation of this rule that ante-dated seniority should be allowed to the encadred officers of the province without keeping in mind or considering the material aspect that PSP follow one and same combined seniority list and if the province will send a recommendation after inordinate delay without any just cause it does not mean that their members will be benefitted and fostered with ante-dated seniority as and when the province opts or chooses to send recommendation on their own sweet will and leisure. If this practice is allowed then this will seriously affect and cause serious prejudice and disparagement to other officers of the PSP. In this case also the recommendation was made by the Province of Sindh much after the date of arising of the vacancy in their 40% share and the petitioners being the officers of Sindh Police are claiming seniority with effect from the year 1999 when the vacancy arose in the PSP for the Province of Sindh. Nothing is available on record to demonstrate either the Establishment Division Islamabad made any correspondence with the Province of Sindh asking them for immediate recommendation for encadrement when the vacancies arose nor any correspondence was placed before us which might have been initiated by the Province of Sindh for sending recommendations quickly upon arising of vacancy in PSP. To our mind, it stands to reason that application of Rule 11(2)(c) has the direct nexus with the time factor which is an acid test, if the request of the petitioners is accepted in toto, this will mean that the notification dated 17.12.2012 issued by Cabinet Secretariat, Establishment Division, Government of Pakistan will be made effective with retrospective effect i.e. year 1999. Through this notification the appointment of certain police officers of Government of Sindh was approved in the rank of Superintendent of Police in BS-18 and this notification was made effective with immediate effect, but the petitioners want that they should be given seniority in BS-18 from the date when the vacancy in the Province of Sindh in PSP arose. If it is done to make a virtue of necessity, the seniority of many other police officers will be upset and without performing the requisite length of service to a particular post, they will also claim future promotions on the basis of their ante-dated seniority. One more stumbling block and or sticking point will arise in this situation let's give us an example, "a person was appointed in the Sindh Police in the year 2005. On recommendation of Governor, he was appointed in PSP in the year 2012 but vacancy arose in the PSP for the province of Sindh in the year 2002 which is a date much before his joining in the Sindh Police" Can he claim seniority on his regular appointment from 2002 when the vacancy arose? In our view "no", this would be quite illogical or somewhat against the common intelligence or prudence. Such type of ante-dated seniority is neither permissible nor it is the true spirit or essence of Rule 11(2)(c). It is nothing but conferring to or recognizing status of an unborn child before his birth which will lead to numerous adverse ramifications and will also undo and upset the entire PSP service structure. If the Province was under deep slumber and failed to forward their recommendations to fill up their 40% share in the PSP when the vacancies arose in the year 1999, in all conscience, other PSP officers should not suffer or face the adverse consequence on their career.

2. Learned counsel for the petitioners made heavy reliance on the encadrement of Mr.Ali Sher Jakhrani who filed C.P.No. D-3657 of 2012 in this Court. His petition was disposed of on 18.1.2013 when his counsel informed the Court that the Federal Government has approved the appointment of Ali Sher Jakhrani to the rank of S.P. in PSP in accordance with Rule 7. However, he made a request that direction may be given to the respondents to give effect to Rule 11(2)(c) in his case. The learned division bench of this Court disposed of the petition with the directions that all rules should be enforced in his case including Rules 7 and 11(c) and the petition was disposed of. This order was not complied with, so the petitioner filed application and only for compliance of the order the matter was also placed before one of us (Muhammad Ali Mazhar, J). On 29.1.2014, the learned Standing Counsel filed a statement to show that the orders passed by the learned Division Bench of this Court on 18.1.2013 and 5.9.2013 were complied with hence the contempt application was disposed of. We have been informed that the order passed on 18.1.2013 in the case of Mr. Ali Sher Jakhrani has been challenged in the hon'ble Supreme Court and leave has been granted in C.P.L.A. No. 348/2013. We have also seen his notification dated 18.12.2013 in which, his date of appointment in PSP was amended from 17.12.2012 to 1.7.1999, which means that he has been awarded ante-dated seniority of 13 years which is quite astonishing and inexplicable. So far as the case of Mr.Ali Sher Jakhrani is concerned, we agree to the argument of Mr. Shahab Usto that no question of law was decided by the learned division bench of this Court and perhaps proper assistance was also not rendered to the learned division bench. All the petitioners before us are claiming the same treatment but on the contrary, Rule 11(2)(c) does not command and mandate such type of ante-dated seniority at the whims and pleasure of the petitioners. Had the right of recommendation for the appointment in PSP availed by the Province straightway and instantaneously upon arising of vacancy in their share in the year 1999, this difficulty or anomaly would not have been occurred. By reason of their inaction and procrastination on the part of the province, on one hand their police officers are frustrated and on other hand, if their grievance is redressed under the force of circumstances, the entire seniority list of PSP will be upset and the police officers at large would be seriously affected. In fact in this situation the Federation and the Province of Sindh both are responsible and they are found in fail to perform their obligations and responsibilities envisioned under the PSP Rules, 1985.

3. Section 8 of the Civil Servant Act, 1973 clearly provides that no vested right is conferred to a particular seniority in service, cadre or the post, which is a parent law. In the notification dated 17.12.2012 the word "appointment" has been used by the Establishment Division, Government of Pakistan. The case of encadrement is not a case of promotion but an appointment to the PSP under Rule 7 of PSP Rules. Mr.Shahab Usto referred to the cases of Farman Ali, D.G. Intelligence Bureau and Naveed Ahmed (supra). The cumulative effect of above precedents do show that the hon'ble Supreme Court deprecated the ante-dated seniority which would affect and upset the entire service structure. We are fortified by the aforesaid dictums and also of the view that if ante-dated seniority is granted to the petitioners in the case in hand, this would also severely affect the entire service structure and the seniority list ought to have revisited and revised from 1999 which will create chaos and turmoil. The petitioners have no independent or self-determining right to claim particular seniority but their right of encadrement or seniority if any is based and dependent upon the recommendation which is made by the province so they cannot claim any vested right if the lethargic attitude is shown in making recommendations for the appointment in PSP on time.

4. In the wake of above discussion, the aforementioned constitutional petitions are admitted to regular hearing and are disposed of in the following terms along with pending applications:

(a) In the present scenario, predominantly due to inordinate delay or inaction on the part of Province of Sindh in making the recommendations for the appointment under Rule 7 of the PSP Rules, 1985 on time, the petitioners are not entitled to claim ante-dated seniority. Consequently, their claim of ante-dated seniority is rejected and their seniority will be reckoned in the present situation from the date of their Notification of encadrement in PSP and not from the date of arising of vacancy.

(b) In future, the Province of Sindh shall send their recommendations immediately for appointment of members of police cadre of province of Sindh in accordance with Rule 7 of PSP Rules, 1985 upon arising of vacancies against their share in PSP and they are also directed to send recommendations for remaining and or unfilled vacancies in PSP as specified in the Schedule.

(c) The benefit of Rule 11(2)(c) of PSP Rules, 1985 shall be given in future to all those members of Police Cadre who are recommended for appointment in PSP by the province immediately and promptly upon occurrence of vacancy in PSP.

(d) In order to avoid complications and combative repercussions in future, the Secretary Establishment Division, Government of Pakistan, is also directed to issue Notification of encadrement immediately upon receiving the recommendations from the Province for appointment under Rule 7 of PSP Rules, 1985 so that retroactive or ex post facto seniority issue/dispute should not crop up or come into sight amongst the members of PSP. If the decision on any recommendation of the province is pending, the notification of encadrement shall be issued immediately by the Secretary, Establishment Division, Government of Pakistan, Limited.

(e) All pending applications are disposed of in the above terms. The interim orders are also vacated.

(R.A.) Applications disposed of

PLJ 2015 Karachi 84 (DB)

Present: Ghulam Sarwar Korai & Salahuddin Panhwar, JJ.

SHAHID ANSARI & 4 others--Petitioners

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD and 2 others--Respondents

C.P. No. D-427 of 2013, decided on 6.3.2014.

National Accountability Ordinance, 1999 (XVIII of 1999)--

----S. 18(b)--Scope--Enquiry investigation and submission of report--An inquiry/investigation could be initiated only by chairman or an officer of NAB, duly authorized by him, thus officer, so authorized for conducting such an inquiry/investigation, shall enjoy all powers as are available to an officer incharge of a police station within meaning of Chapter XIV of Cr.P.C. [P. 88] A

National Accountability Ordinance, 1999 (XVIII of 1999)--

----S. 19(c)--Criminal Procedure Code, (V of 1898), S. 161--Constitution of Pakistan, 1973, Art. 13(2)--Power of authorized officer to require any person to produce useful documents knowledge of legal position--One cannot be compelled to answer a question which can expose him to criminal charge and that one cannot be forced to be a witness which is so evident from Section 161 of Cr.P.C. and Art. 13(2) of Constitution. [P. 90] B

Criminal Administration of Justice--

----Examination of a witness or accused should be in a question-form because a witness or accused can competently choose not to give answer to a question likely to expose him to any criminal charge--Whenever a notice is issued, so required to be examined such notice would contain a reference to facts about which examination is required. [P. 90] C

National Accountability Ordinance, 1999 (XVIII of 1999)--

----S. 18(c)--Issuance of notice--Wrongly issued notice shall not justify quashing root--Negligent of not issuing notice property--Mere irregularity or even illegality on part of I.O., shall not cost an offence to go un-attended because an irregularity or illegality in procedure may be cured but not impacts and effects of an offence if same is let un-touched despite its being coming to light--Moment an offence is committed effects thereof starts but a procedural error, irregular and even illegality by I.O. can well be judged by competent Court towards effects and consequences--Only notice (s) were declared to be illegal and not investigation--NAB authorities cannot be precluded to issue call up notice or conduct an enquiry/investigation because an investigation/inquiry under NAB Ordinance shall require to be disposed as provided under Section 18(f) and (g) of Ordinance--Investigation officer is always required to act strictly in accordance with law and procedure because a legal right to investigate/inquire into would not be at cost of guaranteed fundamental rights of an individual. [Pp. 91, 92 & 93] D, E, F & G

M/s. Mehmood Alam Rizvi & Obed-ur-Rehman, Advocate for Petitioners.

Mr. Noor Muhammad Dayo, A.D.P.G, N.A.B along with Mr. Mehdi Shah, Assistant I.W.II. for Respondents.

Date of hearing: 12.02.2014.

Order

Salahuddin Panhwar, J.--Through instant petition, petitioners pray as under:--

(a) To quash the proceedings pending with the respondents against the petitioners in lieu of the notices issued to them and declare the same as illegal, unlawful, having been initiated with mala fides and without jurisdiction and hence of no legal effect and void ab-initio;

(b) To quash the notices issued by the respondents calling upon the petitioners to appear before them and declare the same as illegal, unlawfful, having been issued with mala fides, without jurisdiction and hence of no legal effect and void ab-initio;

(c) To direct the respondents to bring forth before this Honourable Court all and any evidence/record of any offence purportedly committed by the petitioners under the National Accountability Ordinance, 1999;

(d) To restrain the respondents from calling, detaining, harassing, arresting and from taking any other coercive action against the petitioners, their family members and their employees, without the permission of this Honourable Court;

(e) To restrain the respondents from issuing, addressing notices to the clients/customers of Bilal Logistics (Pvt.) Ltd, Cargo Logistics (Pvt.) Ltd. and M/s. Bilal Associates and/or any other business concerns of the petitioners;

(f) To restrain the respondents from issuing/addressing notices to the banks of the petitioners, Cargo Logistics (Pvt.) Ltd., Bilal Logistics (Pvt.) Ltd. and M/s. Bilal Associates and/or any other business concerns of the petitioners;

1. Succinctly, relevant facts as set out in the petition are that Petitioner No. 1 is the Chief; Executive of Bilal Logistics (Pvt.) Limited and Director in Cargo Logistics International (Pvt.) Limited. He is also the sole proprietor of Bilal Associates. The Petitioners No. 3 and 4 are the Directors of Bilal Logistics (Pvt.) Limited whereas Petitioner No. 2 is a housewife and Petitioner No. 5 is student and has no concern with the family business. Respondents illegally, unlawfully and without any justification issued notices to the petitioner calling him to appear at the office of the NAB Sindh to record his plea; no details whatsoever have been disclosed in those notices with regard to any offence-of corruption or corrupt practices punishable under the provisions of the NAB Ordinance, 1999. The Petitioner No. 1 visited the office of the respondents and on their demand submitted relevant documents of his business and on coercion of the Respondent No. 3 filled the confidential forms supplied by them. Thereafter time and again Respondent No. 3 was issuing notices of similar nature without disclosing the details of any crime committed by petitioners. Pursuant to the notices petitioner sent legal notice whereby raised legal objections against the enquiry and conduct of the NAB Authorities, in-spite of that they were bent upon to compel the petitioners to supply the information regarding Cargo Logistics (Pvt.) Limited, Bilal Logistics (Pvt.) Limited and M/s. Bilal Associates (Pvt.) Limited. That there is nothing against the petitioners, even then the enquiry conducted by the NAB Authority is a clear case of fishing and roving enquiry when it is a matter of record that petitioner has submitted all the relevant information.

2. Learned counsel for petitioner while reiterating the facts as mentioned above, contended that respondents have no jurisdiction to interfere into the legal business of the petitioners; all notices on various occasions are without any justification and nowhere had it appeared that any criminal offence is committed by the petitioners or they have caused any financial loss to the Public Exchequer. The Enquiry Officer without authorization has issued notices in order to compel the petitioners for illegal gratification. The NAB Authorities have only jurisdiction to conduct probe in the cases which revolve around Public Exchequer and not in any manner they have right to conduct the enquiry with the private business of the petitioner thereby all their actions are illegal and beyond the purview of Section 9 of the NAB Ordinance 1999. In support of contentions, he has relied upon cases reported in Dr. Arsalan Iftikhar versus Malik Riaz Hussain (PLD 2012 (SC) page 903 and Ghulam Hussain Baloch versus Chairman, National Accountability Bureau, Islamabad (PLD 2007 Karachi, page 469).

3. Conversely, learned Special Prosecutor has contended that this Court has no jurisdiction to interfere in the enquiry proceedings or investigation as petitioners are involved in tax evasion and they have caused loss to the Public Exchequer by concealing the real amount and transferring the amount through Hawala (Hundi). Thus, notices issued by the Authorities to the petitioners are completely in accordance with law and after authorization by the competent authority. It is further contended that Honourable Supreme Court in a popular Suo Moto Case of ISAF has categorically directed for enquiry and investigation therefore this is not a case where one can claim that official respondents are causing harassment but fact is that they are proceeding completely in accordance with law as complaint was received against their companies regarding involvement of the petitioners in tax evasion and they are also involved in suspicious transactions while shifting money outside of country. Through enquiry, it came on record that petitioners deposited taxes through M/s. Bilal Logistics (Pvt.) Limited but their all business dealings are carried out by M/s. Cargo Logistics (Pvt.) Limited as separate entity, therefore this petition is devoid of merits and is filed at premature stage in order to avoid the legal process conducted by concerned authorities.

4. Heard counsel, perused the record.

5. Before scanning the merits of the case, it would be relevant to examine the scope of NAB Ordinance, 1999 regarding enquiry, investigation and submission of report. Thus, it would be relevant and proper to refer sub-Sections of Section 18 of the Ordinance which are as under:--

Sec. 18. Cognizance of offences:--

(a) …………

(b) A reference under this Ordinance shall he initiated by the National Accountability Bureau on--

(i) a reference received from the appropriate government; or

(ii) receipt of a complaint; or

(iii) its own accord.

(c) …………….

(d) The responsibility for inquiry into an investigation of an offence alleged to have been committed under this Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency of authority is required to do so by the Chairman (NAB) or by an officer of the NAB duly authorized by him)

(e) The Chairman NAB and such members, officers or servants of the NAB shall have and exercise, for the purpose of an inquiry or investigation the power to arrest any person, and all the powers of an officer-in-charge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency, police officer or any other official or agency, as. the case may be, is sought by the NAB such official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman (NAB) or any officer (of NAB) duly authorized by the Chairman NAB.

The plain reading of sub-section (e) of Section 18 of the Ordinance insists that for purpose of an inquiry or investigation, the officer so inquiring/investigating shall have all the powers, as are available with Officer Incharge of a Police Station under the Code, which are so provided under Chapter XIV of the Criminal Procedure Code. Needless to add here that Chapter XIV of the Cr.P.C, also includes the Sections 160 to 164 which deal with power to require attendance, recording of statement.

1. Since from the reading of Section 18(b) of the Ordinance it becomes clear that an inquiry/investigation could be initiated only by the Chairman or an officer of the NAB, duly authorized by him, thus the Officer, so authorized for conducting such an inquiry/investigation, shall enjoy all powers as are available to an officer incharge of a police station within meaning of the Chapter XIV of the Criminal Procedure Code.

2. The provision of Section 19 of the Ordinance speaks about additional power of the officer, conducting inquiry/investigation, which have been initiated under the order of the competent person, Since the call up notice (s) have been made root of the matter, therefore, it would be conducive to reproduce the same:--

'19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation of an offence under this Ordinance or any rule or order made thereunder:--

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Ordinance or any rule or order made there-under;

A bare reading of the said provision reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence any officer duly authorized by Chairman is competent to call for information from any person for the purpose of satisfying himself whether there has been any contravention of provisions of the Ordinance or any rule or order made there-under.

Sub-section-19(b)

(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation;

1. The above sub-section empowers the authorized Officer to require any person to produce or deliver any useful and relevant document. Since the usefulness or relevancy are terms which cannot be explained or understood without a proper reference, therefore, whenever, a notice is required to be given under this section it would require the authorized officer to mention the document (s) or reference through which one could infer about documents to be produced as provided in sub-Section 19(e) which is reproduced as under:--

Sub-section-19(c)

(c) examine any person acquainted with the facts and circumstances of the case;

1. Thus, it is manifest that above sub-section empowers the authorized Officer to examine any person acquainted with the facts and circumstances of the case. 'Any person' includes witnesses or an accused even. We are in complete agreement and knowledge of the legal position that one cannot be compelled to answer a question which can expose him to criminal charge and that one cannot be forced to be a witness which is so evident from the Section 161 of the Code and Article 13 (2) of the Constitution which, both being material, are reproduced hereunder:--

Sec. 161. Examination of witness by police.--(1) Any police-officer making an investigation under this Chapter or any Police Officer not below such rank as the Provincial government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer may examine orally any person suppose to be acquainted with the facts and circumstances of the case.

(2) such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture;

Article 13. No person --

(a) ……………………..

(b) shall, when accused of an offence, be compelled to be a witness against himself;

However, the Criminal Administration of justice demands that version of the accused should also come on record during the course of the investigation, therefore, above referred article and provision shall not justify the Investigating Officer for non-examination of the accused nor shall disentitle him (investigating Officer) from asking a question which he feels necessary for proper interrogation. This is the object because of which the word 'examination' has been used with deliberation under this chapter. Thus during the course of investigation the examination of a witness or accused should be in a question-form because a witness or accused can competently choose not to give answer to a question likely to expose him to any criminal charge. However, whenever a notice is issued under this section the person, so required to be examined such notice should contain a reference to facts about which the examination is required.

1. Keeping in view above touchstone, let's examine whether call up notices impugned in this petition, prima facie serves its purpose or otherwise. For which it would be relevant to reproduce the same which is as follows:

"Subject: Call up Notice to the Accused u/S. 19 read with 27 of NAO, 1999 inquiry against Bilal Logistics (Pvt.) Ltd. and Cargo Logistic (Pvt.) Ltd

M/s. Bilal Logistics (Pvt.) Ltd. and Cargo Logistic (Pvt.) Ltd. are prima facie involved in commission of schedule offences of corruption and corrupt practices punishable under the provisions of National Accountability Ordinance, 1999.

Whereas, during the course of inquiry, it has revealed that you are holding useful evidence and information regarding registered/licensed with customs i.e. Bilal Logistics (Pvt.) Ltd. and Cargo Logistic (Pvt.) Ltd. are transporting goods through Afghan Transit Trade, US Military NATO/ISAF containers.

In view, thereof, you are hereby called upon to appear on 5 November 2012 at 1030 hrs at NAB Sindh, Barrack 36, Pak Secretariat Opposite Passport Office Saddar Karachi before Mr. Agha Jameel, Assistant Director (Investigation) to record you plea, along with original and a set of certified copies of relevant record."

Perusal of the above notice and the underlined portion of the notice reflects that matter (inquiry being conducted) so also a reference as to for what purpose the examination and production of document (s) are necessary, is evident, therefore, call-up notice (s) cannot be said to be entirely illegal.

1. Without prejudice to above, what we would like to make it clear that issuance of notice, even if found to be not within its purpose and object, yet a wrongly issued notice shall not, under any case, justify quashing the root (an investigation, initiated under Section 18(c) of the Ordinance) or be taken as a sword to keep the prosecution out of its right to dig out truth for simple reason that an authorized officer (Investigating Officer) was negligent of not issuing notice properly. A mere irregularity or even illegality on part of the Investigating Officer in following procedure within meaning of Chapter XIV of the Criminal Procedure Code, shall not cost an offence to go un-attended because an irregularity or illegality in procedure may be cured but not the impacts and effects of an offence if the same is let un-touched despite its being coming to light. The moment an offence is committed the effects thereof starts but a procedural error, irregular and even illegality by Investigating Officer can well be judged by the competent Court towards the effects and consequences whereof as held in the case of 'Ghulam Hussain Baloch Vs Chairman, National Accountability Bureau, Islamabad (PLD 2007 Karachi 469). The last paragraph whereof is reproduced hereunder:--

"We have examined the notices issued to the petitioners, their children and relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific offence has been mentioned in them, no specific charge against the accused has also been mentioned in them, no required or specified information, particulars of documents or things, which were required to be produced before the Investigating Officer have been mentioned, as such, all the notices suffer from material irregularity and illegality, because they cannot be termed as legal notices within the meaning of Section 19 of the Ordinance. The learned DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus, the said notices are hereby declared as illegal. If the Investigating Officer wants any information, document, thing or examine any person then he can issue fresh notices keeping in view the above observation of this Court in respect of exercise of such powers.”

(Underlining is supplied for emphasis)

1. From the above concluding part of the dictum makes it clear that only notice (s) were declared to be illegal and not the investigation, being conducted and carried out, rather competence of authorized officer was reaffirmed while holding that he can issue fresh notice (s) within the observation (s) made in the said judgment. Thus it stands stamped that an investigation shall be required to be disposed of, as provided under the law or relevant statute.

2. In case of Dr. Arsalan Iftikhar, probe carried out by NAB Authorities was challenged; however investigation was not stopped by the Honourable Supreme Court but a commission was constituted to conduct a thorough probe. Relevant Paragraph No. 28 of dictum is as under:--

"The Commission shall have the following powers and may seek such further orders as maybe considered necessary:--

(i) he shall exercise all the powers envisioned in the Supreme Court Rules, 1980 and the powers of Judicial Officers for the purpose of carrying out the objects mentioned hereinabove;

(ii) he shall be free to avail the services of advocates, experts of forensic science, persons with relevant experience, including fiscal laws etc. State functionaries when called upon to do so shall provide necessary assistance to the Commission;

(iii) the Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject;

(iv) the Commission is required to complete this task within a period of thirty days after receipt of the copy of this order.

1. In view of what has been discussed above, we are of the firm view that NAB Authorities cannot be precluded to issue call up notice or conduct an enquiry/investigation because an investigation/ inquiry under this Ordinance shall require to be disposed as provided under Section 18(f) and (g) of the Ordinance which reads as under:--

(f) Any inquiry [or] investigation under this Ordinance shall be completed expeditiously as may be practical and feasible.

(g) The Chairman NAB or an officer of the NAB duly authorized by him) shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further, (and there is sufficient material to justify filing of a reference) he shall refer the matter to (a) Court.

Therefore, prayer clause of the petitioners cannot be inclined because it shall result in causing a serious prejudice to the prosecution towards its right in probing into an inquiry/investigation of an offence. However, it would be pertinent to mention that law insists and guarantees that `things should be done strictly in the manner as provided under the law’ and one cannot be put to remain under the sword of Damocles on the pretext of inquiry/investigation. Investigating Officer is always required to act strictly in accordance with law and procedure because a legal right to investigate/inquire into should not be at the cost of guaranteed fundamental rights of an individual. This could only be achieved if things are done as required by the law and law alone.

1. As discussed above, NAB authorities are hereby directed to conclude the enquiry within meaning of Section 18 sub-section (f) and while doing so they shall not cause any harassment and arrest of the petitioners however if tangible evidence is gathered against them, they will be at liberty to proceed in accordance with law.

2. In above terms, instant petition is disposed of.

(R.A.) Petition disposed of.

PLJ 2015 Karachi 94

Present: Salahuddin Panhwar, J.

ABDUL WAHAB--Petitioner

versus

MUHAMMAD NAFEES (Since Dead) his Legal Heirs and others--Respondents

C.P. No. S-33 of 2014, decided on 29.9.2014.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

----S. 15--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Tenancy agreement--Without renewal of agreement--Petitioner was paying rent amount to landlord--Right to owner to seek eviction--Personal bona-fide need--Validity--Since right of owner to require and retain premises for personal use/need is such a right which tenant cannot avoid except by establishing that things, cannot be kept out of his/her right to use his own property for his/her personal use in good faith--It is well settled principle of law that High Court while exercising--Jurisdiction under Art. 199 of Constitution could only interfere when a wrong or illegal conclusion had been drawn by Courts below because Constitutional jurisdiction of High Court in rent matters is very much limited and it cannot sit as a Court of appeal or revision on questions of findings of facts--Claim regarding premises to be required for personal use was not disproved by tenant nor petitioner has pointed out any patent illegality or flouting of provisions by appellate Court, petitioner cannot be allowed to keep (owner) out of his right to use property for his personal bona-fide use--However, if applicant does not use premises for his personal use after getting possession of premises and rents it out to other petitioner/tenant may apply for possession thereof. [P. 97] A, B & C

2012 CLC 1195, 2013 CLC 1129 & 2013 CLC 1541, ref.

Mr. Noor Ahmed Memon, Advocate for Petitioner.

Mr. Riazuddin Qureshi, Advocate for Respondents.

Mr. Ashfaque Nabi Qazi, Assistant A.G

Date of hearing: 29.9.2014.

Order

Salahuddin Panhwar, J.--Through instant petition, the petitioner has assailed the order dated 18th November 2013 passed in FRA No. 15/2013 whereby learned appellate Court has allowed the rent application on the following reasons:--

"The perusal of record reveals that learned trial Court has fully discussed the Point No. 1 in respect of willful default but failed to consider the Point No. 2 in respect of personal bona fide use. The appellant/applicant in Para No. 11 of his rent application as well as affidavit in evidence and cross-examination has mentioned his bona fide need and respondent/opponent has failed to shatter his evidence on this point. In its observation to Point No. 2 the learned trial Court has observed that in the notice the appellant/applicant has not mentioned the facts regarding personal bona fide need. The bona fide need may be arisen to appellant/applicant at any stage, even after disposing of the rent application on bona fide need only. During the cross-examination the attorney/son of appellant/applicant has clearly replied that shop in question is required for personal bona fide use for him whereas respondent/opponent denied the bona fide need of appellant/applicant in his deposition. The respondent/opponent has failed to bring any material/evidence on record to corroborate his version that appellant/applicant wants to sell out the said shop or wants to rent out to anyone else on higher rent then the learned trial Court has committed illegality and irregularity white deciding the Point No. 2 in favour of respondent/opponent.

The upshot of my above discussion is that learned trial Court has committed gross illegality and irregularity while passing impugned order therefore, order dated 25.2.2013 is hereby set aside, resultantly the instant appeal is allowed. The respondent/opponent is directed to handover the peaceful vacant physical possession of the demised premises/shop to appellant/applicant within 60 days of this order. The learned trial Court is directed to comply this order in its spirit".

1. The learned counsel for the petitioner has reiterated the grounds taken in memo. of petition and has also added that order of the learned appellate Court is not based on correct appraisal of the material hence requires interference.

2. Conversely, learned counsel for respondent has argued that learned appellate Court has rightly appreciated the evidence brought on record; hence such judgment cannot be disturbed in writ petition.

3. I have heard the arguments of the learned counsel for the respective parties and have also perused the available material on record.

4. The agreement, available at page 53, reflects that there was tenancy agreement between the petitioner and respondent for a period of 11 months commencing from 01.05.1998; further it is evident that without renewal of such agreement petitioner was paying rent amount to the landlord and possession of the petitioner went undisputed up-to June, 2011 when the landlord claimed that petitioner had committed default in payment of rent for six months and further claimed that demised premises is required for personal bona-fide need. It is evident that after dispute petitioner continued to deposit the rent amount in Court. The learned appellate Court while assigning the reasons hereinabove allowed such eviction application with directions to the handover peaceful possession of the demised premises to the landlord within 60 days.

6. Here, it is worth to mention that Section 15 of the Sindh Rented Premises Ordinance, 1979 gives right to the owner to seek eviction in situation where default or breach is on part of the tenant. In such eventuality the burden is upon the owner to establish /prove such breach or default but condition (s) (vi) and (vii) are exceptions which read as under:--

15(vi) the premises is required by the landlord for reconstruction or erection of a new building at the site and landlord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction;

15(vii) the landlord required the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children;

Both the above condition (s) speak about acts which the owner pleads to do in future hence once such claim comes forward the tenant is liable to disprove it by placing undeniable material/fact because 'words to perform an act in future cannot be proved to be otherwise until relevant time (future point). However, Section 15(vii) of Sindh Rented Premises Ordinance, 1979) is not a license to owner for getting a tenant ousted and then to rent out the premises to other on high rent or choice. This aspect was very much in view with legislature; therefore, the phrase 'good faith' was used in this condition, hence good faith continues till one from his/her conduct and attitude proves otherwise.

7. So far as to the specific claim of the respondent/applicant that premises, in question, is required for personal bona-fide need the present petitioner/opponent brought nothing on record to dislodge such stand of the respondent/applicant. Since the right of the owner to require and retain the premises for personal use/need is such a right which the tenant cannot avoid except by establishing that things are otherwise because an owner, in ordinary circumstances, cannot be kept out of his/her right to use his own property for his/her personal use in good faith. Pertinent to mention that it is well settled principle of law that High Court while exercising- its jurisdiction under Article 199 of the Constitution could only interfere only when a wrong or illegal conclusion had been drawn by the Court (s) below because Constitutional jurisdiction of High Court in rent matters is very much limited and it cannot sit as a Court of appeal or revision on questions of findings of facts, as it was held in the case of Haji Muhammad Saeed vs. Mst. Bano Begum (2012 CLC 1195):

"High Court while exercising jurisdiction Under Article 199 of the Constitution may interfere only when it was necessary and a wrong or illegal conclusion had been drawn by the Courts below. High Court in its constitutional jurisdiction was not to sit as a Court of appeal on questions and findings of facts, recorded by a competent Court and would not interfere in the same in constitutional jurisdiction in a routine.'

In the case of Muhammad Arshad vs. Syed Ali Hussain Rizvi and 2 others (2013 CLC 1129):

'Landlord in evidence had deposed that demised premises was bona fide required by him for his personal use. High Court in exercise of its constitutional jurisdiction could not evaluate evidence and decide such factual controversy'

Similarly, in the case of Messrs Victoria Furniture Mart vs. State Life Insurance Corporation (2013 CLC 1541).

`Constitutional jurisdiction of High Court in such matters was very much limited and confined only to ascertain whether appellate Court had not flouted provisions relating to the statute or had failed to follow the law related thereto.’

8. Keeping in view of above touchstone, the claim of the respondent/applicant regarding premises to be required for personal use was not disproved by the tenant/petitioner nor the petitioner has pointed out any patent illegality or flouting of the provisions by learned appellate Court, therefore, in absence thereof, the petitioner cannot be allowed to keep the respondent /applicant (owner) out of his right to use property for his personal bona-fide use. However, if the respondent/applicant does not use the premises for his personal use after getting the possession of premises and rents it out to other the petitioner/tenant may apply for possession thereof. This, however, shall not debar the respondent/applicant to exercise right of ownership, including rent out premises at subsequent point of time.

9. In view of above, the petition is devoid of merits and is dismissed.

(R.A.) Petition dismissed

PLJ 2015 Karachi 98

Present: Salahuddin Panhwar, J.

M/s. FARAN SUGAR MILLS throughMANAGER/ATTORNEY--Petitioner

versus

REGISTRAR TRADE UNION and 2 others--Respondents

C.P. No. S-228 of 2011, decided on 26.11.2014.

Industrial Relations Ordinance, 2002 (XCI of 2002)--

----Ss. 2 & 6(d)--Registration of trade union--Conduct impartial inquiry--Question of--Whether union is of workers employed and secured highest votes in secret balloting--Order was in negation--Petition was not maintainable--Employer has no role to claim objection for registration of union--Objection can be raised by another union of workers--Applicability of CPC--Validity--While determining said question (s), direction to provide ample opportunity of hearing to parties, including petitioner, was complied with by respondent as same is evident from order, impugned--Petition was maintained only to extent of requirement of law which demands a thing to be done by an authority would be in accordance with law and procedure whereas in instant matter, there appears no departure from required procedure when petitioner enjoyed opportunity of hearing within spirit of directions, so issued in earlier petitions--Order was set-aside, being not-speaking as it is well settled law that an authority exercising a jurisdiction would not only pass an order but 'speaking order' which would not be fulfilled if there is a departure from mandatory requirement of law or reasons to conclusion are lacking--This also does not help case of petitioner when order, impugned, otherwise appears to be passed properly within four corners of instructions, so issued in earlier petitions. [Pp. 103 & 104] A, B & C

Industrial Relations Ordinance, 2002 (XCI of 2002)--

----S. 9--Civil Procedure Code, (V of 1908), S. 79--Constitution of Pakistan, 1973, Art. 174--Registration of trade union--Impartial inquiry--Proceedings--Non-joining province as party--Applicability of CPC in proceedings objection of maintainability of petition--Validity--It is requirement of law that in every suit filed by or against Government--Petitioner had failed to make out a case by establishing that authority while passing impugned order, departed from any mandatory requirement of law, particularly when order impugned specifically shows to have been passed within four corners of instructions/directions, issued in earlier petition, which included conducting of inquiry as enshrined under Section 9 of Ordinance nor it can be opined that respondent traveled beyond his jurisdiction--Petition was dismissed. [P. 104 & 105] D & E

Mr. Mehmood Hussain Siddiqui Advocate for Petitioner.

Mr. Mumtaz Alam Leghari, Advocate for Respondents.

Mr. Ashfaque Nabi Kazi, Assistant A.G.

Date of hearing: 26.11.2014.

Order

Through instant petition, the petitioner has assailed order dated 05th April 2011 passed by the Respondent No. 1.

2. It is contended by the learned counsel for the petitioner that C.P. Nos. S-08 of 2009 and 128 of 2009 were decided by this Court by order dated 21.03.2011, whereby directing the Respondent No. 1 to conduct impartial inquiry in the matter and determine whether the Respondent No. 1 is union comprising on members employed by the petitioner; whether the Respondent No. 3 secured highest votes in secret balloting in accordance with law. Though, both the petitions were decided by consent, inspite of that the Respondent No. 1 failed to exercise his domain within the spirit of order passed by this Court as well the impugned order is in negation of Section 6(d) and Section 2 of Industrial Relations Ordinance, 2002 (hereinafter referred as I.R.O). He further contended that no required inquiry was effected by the Respondent No. 1 under the mandatory provisions of 9 of I.R.O; Respondent No. 2 acted in slip shod manner, thus petitioner, having no other remedy, has filed this petition as from the face of it, impugned order is illegal, unjustified and abintio void. In support of his contention, he has relied upon the case of United Workers Union Al Abbas Sugar Mills Ltd. (C.B.A) through General Secretary V. Registrar of Trade Unions, Govt. of Sindh and 3 others (2010 P.L.C 8), Export Processing Cones vs. Registrar of Trade Unions and another (2004 PLC 217), Lucky Textile Mills through Managing Partner vs. Mazdoor Union of Lucky Textile Mills through General Secretary and 3 others (2007 PLC 366), Habib Sugar Mills Ltd. through Manager vs. Registrar of Trade Unions, Govt. of Sindh and another (2001 P.L.C 441) and Essa Cement Industries Workers Union vs. Registrar of Trade Unions Hyderabad Region Hyderabad and 4 others.

3. Learned counsel for the Respondent No. 3 contended that the impugned order is in accordance with law; Respondent No. 3 pursuant to directions of this Court conducted inquiry on 01.04.2011 and heard all relevant persons, thereafter passed such order therefore, in any manner this writ petition is not maintainable against the impugned order. He further contends that employer has no role to claim objection for registration of one union; objections can be raised by another union of workers. Learned counsel for the Respondent No. 3 relied upon 2006 CLC 288, 2013 YLR 1580, 2008 P Cr. L J 1309, 2009 SCMR 1066, 2010 MLD 523).

1. Learned Assistant A.G. on Court notice raised objection regarding maintainability of this petition on the plea that Civil Procedure Code is applicable in these proceedings, candidly the petitioner has filed petition against functionary of provincial Government but has not joined the province as party, therefore, this petition is not maintainable. In support of his contention he has relied upon 1999 SCMR 16.

2. Heard learned counsel for respective parties and scanned the material available on record.

3. Before addressing the plea (s) agitated by respective parties, it is worth to add here that a petition will be competent where there is a question of law; involvement of fundamental rights; or procedure illegality causing serious prejudice to one but it would neither be a substitution to other available legal remedy nor it (constitutional jurisdiction) will be a substitution to that of appellate jurisdiction.

4. It is an undisputed position that in earlier petition (s), this Court passed order with consent of all, including the petitioners which, prima facie, covered the complaint (s) of petitioners, including that of holding impartial inquiry. The terms, in which said petitions, were disposed off, being necessary are reproduced hereunder:--

(i) The Registrar/ Respondent No. 1 shall conduct impartial inquiry in the matter to determine whether the Respondent No. 3 is a union of workers/ members employed by the Petitioner;

(ii) Whether the Respondent No. 3 secured highest votes in the secret balloting in accordance with law;

(iii) The Registrar shall issue notice to the Petitioner and Respondent Nos. 2 & 3 to attend the inquiry;

(iv) The Registrar shall also provide ample opportunity of hearing to the petitioner. Respondents No. 2 & 3 with an opportunity to place on the record, all the relevant documents in support of their contention.

(v) The Registrar shall conclude the inquiry within 15 days time without any further delay or excuse.

(vi) In case the Registrar comes to the conclusion that the Respondent No. 3 had been wrongly registered and its workers/ members are not found to be the employees of the Petitioner, the Registrar shall initiate proper proceedings for cancellation of trade union registration in accordance with law.

8. In pursuance of such comprehensive instructions (terms disposing of the petitions), the matter was processed by the Respondent No. 1 resulting into passing the order, which has been impugned through instant petition. At this juncture, it is also pertinent to refer the relevant portion of impugned order as under:--

"Pursuant to the directions contained in above orders passed by the Honourable High Court of Sindh Hyderabad all concerned parties including contractor were called alongwith record, relevant documents in support of their contention in the inquiry on 01.04.2011 vide this office letter dated 28.03.2011.

The parties were heard at length and comments alongwith photocopies of relevant documents in support of their contention have been produced by the parties. Statement of the following persons who present in the inquiry were also recorded.

1. Syed Irshad Ali Shah Deputy General Manger Faran Suger Mills Ltd, Shaikh Bhirkio.

2. Mr. Ali Nawaz Pitafi Assistant Manager personal R.R. Services Karachi.

3. Mr. Zaheer Baig General Secretary, Peoples Mazdoor Union Faran Sugar Mills Shaikh Bhirkio.

4. Mr. Dadu Khan General Secretry, R.R Services Contractor Faran Sugar Mills Shaikh Bhirkio.

Presently the evidence on record as produced by the management of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio and R.R. Services shows that services of 426 workers are terminated under GHS Scheme in the year 2003, at present no worker on pay roll of the Mills and 395 workers reemployed through contractor having issued contract letters, making payment to EOBI education cess and income tax, pay slips/wages sheet for the month of February, 2011, duty/attendance card, leave register and agreements in between the management of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio and the contractor namely R.R. Services Karachi contrary to this the General Secretary of Peoples Mazdoor Union Faran Sugar Mills Ltd. Shaikh Bhirkio produced the copies of Balance sheet/ Annual report 2009, explanation and appreciation letters, gate pass, petrol slips, dispensary slips, blood group card, store issuance requisition, reports relating to production, juice tank, molasses, hourly formation of Mill house issued and prepared on the books and letter heads of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio with contention that the worker to be shows to be employees of contractor is to camouflage the intention of the management for curtailment of rights of formation of union by workers and to deprive the workers to their rights and further contended that the workers claimed to be employed through the contractor are actually employees of M/s. Faran Sugar Mills Ltd, Shaikh Bhirkio working inside the mills on the machinery owned by the employer of the Mills for production of sugar under administrative control of the management of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio as all the administrative correspondence and supervision of work are made by management of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio and not by the alleged contractor. The General Secretary Peoples Mazdoor Union Shaikh Bhirkio further stated that union cannot produce the appointment letters and pay slips as the same have not been issued to the workers by the management and the duty/attendance cards, wages sheets have been stamped by R.R. Services after the order dated 21.03.2011 passed by the Honourable High Court of Sindh Hyderabad as previously duty/attendance cards issued to the workers have no stamp or name of establishment on it. The General Secretary produced the some copies of duty /attendance cards issued to the workers in the years 2009 and 2011 in support of his contention showing no name of the establishment on it.

9. Perusal of above, it is manifest that in compliance of the order passed in earlier petition (s) the Respondent No. 1 conducted inquiry in the matter with regard to determination of Respondent No. 3 on various grounds i.e:

(i) whether such union is of workers employed by the petitioner;

(ii) whether Respondent No. 3 has secured highest votes in secret balloting;

10. It appears from the record that while determining said question (s), the direction to provide ample opportunity of hearing to parties, including petitioner, was complied with by the Respondent No. 3, as same is evident from order, impugned. Further, it is manifest that impugned order covers all points raised by learned counsel for petitioner and directions of this Court. This seems to have served the purposes of the order, so passed in earlier petition (s) which included conducting of inquiry, as well object of Section 9 of the I.R.O which insists due diligence and verification of facts.

11. Be as it may, the instant petition has been insisted on grounds of improper compliance of instruction (s) of order passed in earlier petitions albeit the order, impugned, speaks otherwise. The Ordinance vests jurisdiction and authority with the Respondent No. 1 to deal with the issue of registration of a trade union. The petitioner could, competently, challenge proceeding for such purpose of order but only by establishing, prima facie, departure of required procedure but cannot maintain a petition by bringing dispute(s), requiring factual determination or determination by some appellate authority. Besides, the order, impugned, shows that the Respondent No. 1 even responded to factual controversy because the order also reflects that there was referendum held on 15.03.2011 in which 262 workers casted their votes and Respondent No. 3 secured highest number of votes i.e. 252, whereas the Respondent No. 2 secured only 09 votes.

12. At this moment, it would be conductive to refer the case law relied by learned counsel for the petitioner. In case of United Working Union Al Abbas Sugar Mills (supra), issue was dispute between two unions and this Court decided that only constitutional jurisdiction is always available to the petitioners where statutory functionary was entrusted with responsibility for taking certain actions in accordance with law has not done so.

In case of Habib Sugar Mills (supra) it is observed that authority has to act in accordance with law and no one is allowed to commit departure from the procedure provided under the law.

In case of Export Processing Zones vs. Registrar of Trade Unions and another (supra), also similar proposition was recorded.

13. In the said cases the petition was maintained only to extent of requirement of law which demands a thing to be done by an authority should be in accordance with law and procedure whereas in present matter, there appears no departure from required procedure when the petitioner enjoyed opportunity of hearing within spirit of directions, so issued in earlier petitions.

In case of Lucky Textile Mills (supra), relied by learned counsel for the petitioner, it is held as under:--

"Validity--Registrar of Trade Unions being statutory entity was required to discharge its legal position--NO speaking order being available on record, impugned order was set aside with direction to the Registrar to conduct an impartial inquiry into the matter and then proceed to pass a speaking order. Impugned registration awarded to the union was set aside/ cancelled, matter was remanded to Registrar Trade unions to consider application afresh and conduct impartial inquiry in the matter and then proceed to pass appropriate order accordingly.”

In above case too, the order was set-aside, being not-speaking as it is well settled law that an authority exercising a jurisdiction would not only pass an order but 'speaking order' which would not be fulfilled if there is a departure from mandatory requirement of law or reasons to conclusion are lacking. This also does not help the case of petitioner when order, impugned, otherwise appears to be passed properly within four corners of instructions, so issued in earlier petitions.

In case of Essa Cement Industries Workers Union (supra), it has been held as under:--

"Neither the employee nor a trade union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before the Registrar was not considered before such decision.”

14. Without prejudice to the above, learned Assistant A.G has raised objection with regard to maintainability of the petition on non joining Province of Sindh as party. In support of his contention he has relied upon case of Haji Abdul Aziz (supra), wherein it is held that u/s 79, CPC and Article 174 of the Constitution of Islamic Republic of Pakistan, it is requirement of law that in every suit filed by or against the Government, authority of Government would be that province.

15. In view of the proposition as laid down in the above Judgments, I am of the considered view that the petitioner has failed to make out a case by establishing that authority (Respondent No. 1), while passing impugned order, departed from any mandatory requirement of law, particularly when the order impugned specifically shows to have been passed within four corners of instructions/ directions, issued in earlier petition, which included conducting of inquiry as enshrined under Section 9 of the Ordinance nor it can be opined that Respondent No. 1 traveled beyond his jurisdiction. Consequently, instant petition merits no consideration and same is dismissed.

(R.A.) Petition dismissed

PLJ 2015 Karachi 105 (DB)

Present: Muhammad Ali Mazhar and Shaukat Ali Memon, JJ.

MUHAMMAD AFZAL--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU, (SINDH) & 4 others--Respondents

C.P. No. D-4056 of 2014, decided on 6.2.2015.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, 1999, S. 16--Constitutional petition--NAB reference--Bail, grant of--Responsibility for shortage of cash by depositing less cash--No specific amount was shown--Misappropriated or embezzled--Tentative assessment--Criminal case must be disposed of without unnecessary delay--Investigation had been completed and no purpose would be served to retain accused in custody for indefinite period--Validity--It is well settled that deeper appreciation of evidence is not permissible at bail stage--Object of trial is to make an accused to face trial and not to punish an under trial prisoner--Accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay--Bail was granted. [Pp. 109 & 111] A & B

PLJ 2014 Kar. 251, PLJ 2014 Kar. 254 & PLJ 2014 Kar. 268, ref.

Mr. Muhammad Ishaque Ali, Advocate for Petitioner.

Mr. Noor Muhammad Dayo, ADPG NAB for Respondents.

Date of hearing: 26.01.2015

Order

Muhammad Ali Mazhar, J.--This constitution petition has been brought to seek bail and challenge the warrant of arrest dated 1.7.2014. In the meanwhile NAB filed a Reference No. 13/2014 in the Accountability Court. The petitioner is Accused No. 3 in the Reference and has been assigned role in Clauses (k), (l) and (m) of Para 8 of the Reference, which are reproduced as under:--

“(k) That the Accused No. 3 Muhammad Afzal Ex-Cashier and Ex-Incharge AFU is responsible for shortage of cash from October, 2012 to March, 2013, by depositing less cash in accounts of Collector of Custom than the actual collection

(l) That he in connivance with other accused persons was involved in clearance of goods declaration on credit basis.

(m) That he was involved in issuance of pay orders in favour of Collector of Custom without actually debiting in the Account No. 1003-6 and 1004-6 or even without having the balance in above said accounts. The said amount was later debited from other accounts through Accused No. 1 Muzafar Ali Zuberi, Accused No. 2 Shakeel Ahmed and Accused No. 5 Waqas Ahmed Khan.”

2. The learned counsel for the petitioner argued that the petitioner was posted at AFU Booth in October, 2011 for one month only and thereafter he was again posted from mid of December, 2012 to 15th March, 2013. He served for a total period of four months thereafter he was posted at NBP Airport Branch. On 15.3.2013 the petitioner was placed under suspension and issued a show-cause notice by the NBP. Out of seven charges, six were related to the delay in crediting and debiting the respective accounts and the clearance of goods declaration of PIAC. The petitioner denied the charges mentioned in the show-cause notice and took the defence that posting at AFU Booth was only for four months. Learned counsel further argued that there was no shortfall for the period during which the petitioner was posted at AFU Booth. The amount was deposited in favour of Pakistan Customs for which they had complete accounts of taxes and duties in respect of cleared goods declaration thus in absence of any complaint from Pakistan Customs the allegations against the petitioner are false. If any amount was misappropriated, it should not have been escaped the attention of audit department but nothing was transpired in the audit report. He further argued that the petitioner was arrested on 1st July 2014 while the charge was framed by the learned trial Court on 2.10.2014. The prosecution has cited calendar of more than seventeen witnesses and so far the trial Court has been able to record examination-in-chief of one witness only. The investigation has been completed and no purpose would be served to retain the accused in custody for indefinite period especially where the pace of trial is much slow and considerable time will be consumed to conclude the trial. The petitioner is rotting behind the bar since 1st July, 2014 and in seven months examination-in-chief of one witness has been recorded while under Section 16 of NAO, 1999 Court has to proceed the case from day to day and dispose of the same within thirty days which period has lapsed.

1. The learned ADPG NAB argued that the petitioner has played important role which is reflecting from Paragraph (8) (k) (l) and (m) of the Reference. He was posted as AFU Booth Incharge where he committed the offence of corruption and corrupt practices. Being Ex-cashier and Incharge AFU he was responsible for shortage of cash from October 2012 to March 2013 by depositing less cash in the accounts of Collector Customs then the actual collection. During inquiry it revealed that the bank officials and some other unauthorized persons were involved in illegal banking by clearance of goods declaration on credit basis, pocketing daily cash collection, shortage of cash and illegal debiting. The learned ADPG NAB also referred to statements of Muhammad Hassan Branch Manager, Allauddin Cashier/OG-II and Abu Sufyan, Cashier/OG-II, NBP, Airport Branch, Karachi recorded under Section 161 Cr.P.C. by Senior Investigation Officer and argued that in view of these statements the petitioner is not entitled to be released on bail.

2. Heard the arguments. The role of the petitioner has been defined in sub-Paragraph (k), (l) and (m) of Paragraph (8) of the Reference that he was responsible for shortage of cash from October, 2012 to March, 2013 by depositing less cash in accounts of Collector of Custom than the actual collection and he was involved in issuance of pay orders in favour of Collector of Custom without actually debiting in the Account No. 1003-6 and 1004-6 or even without having the balance in above said accounts. This said amount was later debited from other accounts by Accused No. 1 Muzafar Ali Zuberi, Accused No. 2 Shakeel Ahmed and Accused No. 5 Waqas Ahmed Khan. Most of the allegations have been levelled in the reference against Waqas Ahmed Khan who is an absconder in this case. The petitioner claims to have been posted on AFU Booth only for four months while the NAB asserts that he is responsible for the short fall transpired for the period of six months. No specific amount is shown against the present petitioner which he allegedly misappropriated or embezzled from AFU Booth. Even in the Summary of liability mentioned in Paragraph 9 of the Reference, the shortage of cash deposits has been shown for month of January 2012 to March 2013 without any break up for which the petitioner is being held liable or responsible at this stage.

5. The learned ADPG NAB referred to 161 Cr.P.C. statement of Muhammad Hassan who narrated almost similar allegations but he himself admitted that he took the charge as Manager of the concerned Branch on 12.3.2013 from Shahid Hussain while the details of alleged illegal debiting mentioned in the table are pertaining to the period from 4.7.2012 to 7.01.2013. He referred to Waqas Ahmed Khan, a private person but further stated that since his posting he has not seen Waqas Ahmed Khan. He also stated that during proceedings of NAB it revealed that Waqas Ahmed Khan was involved in clearance of G.D. on credit basis and collection of the same was pocketed. He further revealed that Waqas Ahmed Khan used to prepare illegal debit and credit scroll and his handwriting has beta identified on the pink sheets of collection. The same person also highlighted the role of Nadeem Enterprises and firmly stated that the employees of AFU Booth in collusion with M/s. Nadeem Enterprises were engaged in parallel banking. It is further stated that Nadeem Enterprises derived unlawful benefit from the public amount and then failed to repay the same and caused loss to the public exchequer and the said amount is still recoverable from Nadeem Enterprises. It is quite strange to note that despite clear statement in which the complainant highlighted the name of Nadeem Enterprises involved in the scam, the Reference filed by NAB does not refer to anything in relation to the allegation against Nadeem Enterprises. The ADPG NAB also failed to point out anything as to what action was taken against “Nadeem Enterprises”. Even Paragraph 11 of the Reference is completely silent where the NAB has fixed joint liability of misappropriated/embezzled amount. Allauddin in his 161 Cr.P.C. statement stated that he was posted at AFU Booth. He also talked about Waqas Ahmed Khan and his changed standard of living beyond his means. It is further stated that Waqas Ahmed Khan used to call himself nephew of Ex-Branch Manager Shahid Hussain but he was made Incharge by Muzaffar Ali Zuberi for all AFU Booth. He was also shown various vouchers on which he recognized the handwriting of Waqas Ahmed Khan including debit and credit vouchers and pink sheets. Abu Sufyan in his statement also discussed living standard of Waqas Ahmed Khan. He was posted at AFU Booth by the Ex-Branch Manager Nafees Ahmed Khan. He further stated that few persons, were working on daily wages including Waqas Ahmed Khan who were deployed at AFU Booth by Muzaffar Ali however, no record of these persons is available in NBP. After considering the aforesaid statements as well as the arguments of learned counsel we are of the firm view that in order to thrash out the liability and the role of each individual accused person, recording of evidence is necessary and at this stage it can be safely concluded on the basis of available record and material collect by the prosecution that the role of present accused requires further inquiry.

6. Further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that deeper appreciation of evidence is not permissible at bail stage simultaneously it is also well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay. The intention of law is that the criminal case must be disposed of without unnecessary delay it is not difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries. Reference can be made to orders authored by one of us (Muhammad Ali Mazhar-J) in the case of Ali Anwar Ruk, Abdul Jabbar, Syed Mansoor Ali and Sardar Amin Farooqui reported in 2014 SBLR 766, PLJ 2014 Karachi 251=2014 CrLJ 777, PLJ 2014 Karachi 254=2014 UC 784 and PLJ 2014 Karachi 268.

7. Under Section 16 of the NAO, 1999 it is clearly provided that notwithstanding anything contained in any other law for the time being in force an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within thirty days. We have already observed that the accused was arrested on 1st July, 2014 while the charge was framed in the month of October, 2014 and examination-in-chief of one witness has been recorded so far which negates the spirit of Section 16 of NAO, 1999. The learned ADPG NAB neither controverted this position nor did he explain the reasons of delay nor attributed any cause of delay to the petitioner or his counsel. The hon’ble Supreme Court in the case of Muhammad Nadeem Anwar v. NAB reported in PLD 2008 SC 645 held as under:

“National Accountability Ordinance, 1999 was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking kickbacks, commissions and for matters connected and ancillary or incidental thereto. Object of National Accountability Ordinance, 1999, in its preamble, is to provide expeditious trial of scheduled offences within the shortest possible time. Accused was entitled to expeditious and inexpensive access to justice, which included a right to fair and speedy trial in transparent manner without any unreasonable delay. Such intention had been re-assured in Section 16 of National Accountability Ordinance, 1999, laying down criteria for day to day trial and its conclusion within thirty days. Such object did not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to accused. Truth or otherwise of charges levelled against accused could only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. Supreme Court converted petition for leave to appeal into appeal as accused were entitled to grant of bail pending conclusion of trial.”

In the case of Muhammad Jahangir Badar vs. NAB, reported in PLD 2003 SC 525, the apex Court held as under:

“7. There is no cavil with the proposition that the State machinery has a right to arrest the culprits and put them to trial for the purpose of establishing guilt against them but it has not been bestowed with an authority to play with the liberty and life of an accused under detention because no one can be allowed to remain in custody for an indefinite period without trial as it is fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial. As in the instant case under Section 16 (a) of the Ordinance the Court is bound to dispose of the case within 30 days. It may be noted that inordinate delay in the prosecution case if not explained, can be considered a ground for bailing out an accused person

depending on the nature and circumstances on account of which delay has been caused as has been held in the case of Riasat Ali v. Ghulam Muhammad & State (PLD 1968 SC 353).”

8. As a result of above discussion, the petitioner (Muhammad Afzal) is granted bail in NAB Reference No. 13/2014 subject to furnishing solvent surety in the sum of Rs. 10,00,000/- (Rupees ten hundred thousand only) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. NAB may also approach to the Ministry of Interior, Government of Pakistan for placing his name on Exit Control List. The petitioner shall also surrender his original valid passport in the trial Court. The above findings are tentative in nature and shall not prejudice the case of either party. The petition is disposed of.

(R.A.) Petition disposed of

PLJ 2015 Karachi 111 (DB)

Present: Abdul Rasool Memon & Salahuddin Panhwar, JJ.

MUHAMMAD YOUSAF KHARL & another--Petitioners

versus

PROVINCE OF SINDH through Chief Secretary, Sindh, Karachi & 6 others--Respondents

C.P. No. D-190 of 2014, decided on 18.12.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Territorial jurisdiction--Multiple litigations between landlord and tenant--Dispossession from petrol pump--Re-investigation--High Court was not competent to issue direction for re-investigation as it was purely domain of investigation agency--Validity--Investigation is domain of investigation agency and investigation agency cannot be legally directed to investigate on a particular line particularly one sketched by accused--High Court cannot sit over order already passed by High Court when admittedly such order was not assailed before apex Court--Petitioners had failed in establishing any exceptional circumstances where direction for re-investigation could be ordered under constitutional jurisdiction more particularly when normally that was not within scope of Art. 199 of Constitution on plea of colourful exercise by I.A., petitioner would be with ample opportunity to agitate his pleas before competent trial Court having jurisdiction--Trial Court would be competent to decide matter after being heard both versions in juxta-position while scanning evidence minutely--Petition was dismissed. [Pp. 115 & 116] A, B & C

Mr. Sarfraz Ali Metlo,Advocate for Petitioners.

Mr. Allah Bachayo Soomro, Additional A.G. for Respondents.

Mr. Amjad Ali Sahito,Special Prosecutor for A.N.F.

Date of hearing: 18.12.2014.

Order

Salahuddin Panhwar, J.--Through instant petition, petitioners pray as under:--

"(a) quash the proceedings of the Special Case No. 34/2012 pending in the Court of Special Judge (N) Jamshoro @ Kotri based upon in FIR No. 02/2012 u/Ss. 6, 9(c) CNS Act PS ANF Hyderabad and direct for initiation of proceedings against the Respondent No. 6 for fabricating the false cases;

alternatively, direct for the further/re-investigation of the maliciously false and fabricated FIR No. 02/2012 dated 19.09.2012 PS ANF Hyderabad by any reputed police officer and release the Petitioner No. 1 on bail pending re-investigation/further inquiry.

(b) restrain the respondents from harassing and humiliating the petitioners and their family members by involving them in false and fabricated cases.

(c) grant any other relief fit and proper in the circumstances of the case."

1. Precisely, case of the petitioners is that there was an agreement of tenancy with regard to Shell Petrol Pump between the petitioners and Haji Abdullah Katiar; during such tenancy period differences arose between them; being influential person, landlord attempted to forcibly dispossess and deprive petitioner from his legal trade; consequently petitioners filed Civil Suit and FIR bearing Crime No. 226/2012 at P.S. Steal Town; petitioners also filed Constitutional Petition No. 3418/2012 whereby mandatory injunction was issued; on account of this dispute, Petitioner No. 1 has been booked in false cases and narcotics cases.

2. It further reveals that petitioners filed Constitutional Petition with regard to quashment but such petition was dismissed with following order:--

"Through instant petition, the petitioner has prayed for an order directing the respondent ANF Hyderabad to release his brother Muhammad Yousif Kharal, who according to the petitioner has been falsely implicated in Crime No. 02/2012 for the offence under Section 9(c) of the Control of Narcotic Substances Act.

Since recovery of 300 kilograms of charas was shown from the brother of petitioner, therefore, we have asked counsel to argue maintainability of the instant petition and on 18.10.2012 counsel after arguing the matter at length sought adjournment to place documentary evidence to prove that the petitioner's brother is innocent and consequently we adjourned the hearing for today at 11 a.m. with the observation that if the petitioner fails to bring documentary evidence to establish innocence of petitioner's brother cost not less than Rs.25,000/- will be imposed.

Today counsel contends that on the day of incident, Investigating Officer of the case was available in Karachi and this fact can be proved from the record of Cell Phone Company and, therefore, Cell Phone Company be directed to place on Court's file the record of cell phone of the Investigating Officer. On our query, as to how, while exercising Constitutional jurisdiction this Court can appreciate the matter pertaining to recording of evidence and chock the prosecution, counsel has no answer except for pleading that the cost of Rs.25,000/- may not be imposed and even went to an extent of not pressing this petition. However, tendency of filing frivolous petitions is sharply increasing and to curb such tendency the dismissal of such petition with cost appears to be the only solution.

In the circumstances, we dismiss the instant petition however instead of imposing cost of Rs.25,000/- impose cost to the extent of Rs.5,000/-. The cost so directed be deposited with the Nazir of this Court within seven days hereof."

1. Learned counsel for petitioners inter alia contends that first petition was with regard to quashment of FIR but here the petitioners seek re-investigation of the case on the plea that cell record of I.O. shows that he was not available within territorial jurisdiction of Hyderabad and such case is based on mala fide and ulterior motive; Petitioner No. 1 was carrying his lawful business hence allegation of carrying 300 kilogram charas is apparently absorbed and in-logical therefore, this is a fit case wherein this Honourable Court can rescue the petitioners by directing re-enquiry. In support of his contentions, he has relied upon PLD 2005 Supreme Court 511, PLD 1983 Supreme Court 344, PLD 2005 Karachi 164, 2006 CLC 694, 1993 CLC 2478 and 2004 YLR 2200.

2. Conversely, learned counsel for A.N.F. as well learned A.A.-G. contend that petitioners have not approached the concerned authority for re-investigation and this Court is not competent to issue direction for re-investigation as it is purely domain of investigation agency; instant case is pending since 02 years for trial; if petitioners possess any evidence they would be at liberty to substantiate through pleas; instant petition is devoid of merits.

3. After careful consideration of arguments advanced by learned counsel for respective parties and perusal of record, it appears that through main prayer (prayer clause (a) the petitioner (s) have repeated an attempt to seek quashment of F.I.R though such was failed. I must mention here that 'alternative' prayer should always be within four corners of main relief because the relief always sought with reference to pleading (narration of facts). The alternative prayer/relief, in instant matter, does not appear to be within four corners of main prayer/relief. The earlier petition for quashment i.e main prayer already met its fate of dismissal with costs. However, since the petitioners have stuck with alternative prayer only therefore, it would be proper to attend the legality thereof within parameters of the Constitutional Jurisdiction of Article 199.

4. The Petitioner No. 1 is booked in a case of 300 K.Gs of narcotics substance (Charas). Petitioner is insisting for re-investigation of the case on the basis of cell data record of Investigating Officer of FIR in question that on the day of offence I.O. was not present at the place of incident. On this count alone the FIR, involving 300 K.Gs narcotics cannot be quashed because absence of witness (I.O) would matter and not his phone. Further Petitioner No. 1 claims that he was earning millions of rupees in a month having established business, therefore, how he can be carrier of such narcotics substance. It would suffice for such plea that it is not the colour, caste or status even which could be used/insisted as a license to avoid investigation into a criminal charge. If such plea is stamped it would amount to give a license to all millinioners to use their status as an exit-gate which, the law, under any circumstances, cannot approve. The ground regarding silence of instant case regarding ownership of the narcotics and destination where it was to be delivered, it should be sufficient that possession of narcotics, if proved, would be sufficient to prove the charge. The ground of story, being believable or otherwise, is also not a sufficient ground to claim re-investigation which cannot be insisted unless prima facie it is established that Investigating Officer is motivated and conducted investigation which is result of colourful exercise, mala-fide and excess of jurisdiction. The petitioner has claimed that there are multiple litigations between landlord and tenant, thus he has been falsely involved by police at the behest of Katiar who is trying to dispossess the petitioner from his Petrol Pump. All the grounds, taken by the petitioners, are of such a nature that the same would fall within meaning of 'defence' hence the accused persons (Petitioner No. 1) shall have fair opportunity to agitate such grounds including production of relevant cell-phone data, if any.

5. There can be no denial to well established legal proposition that investigation is the domain of the investigation agency and the investigation agency cannot be legally directed to investigate on a particular line particularly one sketched by the accused. It is also a matter of record that the petitioner (s) have, at no material times, moved proper forum/authority i.e superior of I.O. with such complaint of illegality or mala fide on part of the Investigating Officer nor any such request has been made and even to the proper Court which, under the law, is supervisory authority of investigation.

6. Worth to add here, it is matter of record that petitioners had filed petition before this Court on similar issue that was dismissed with cost hence on same issue this Court cannot sit over the order already passed by this Court when admittedly such order was not assailed before the apex Court. Even otherwise, the petitioners have failed in establishing any exceptional circumstances where direction for re-investigation could be ordered under constitutional jurisdiction more particularly when normally this is not within scope of Article 199 of Constitution of Pakistan, 1973 which, can come into play, for help of justice but not to shoulder wishes of one for getting a legal thing at his sketched lines.

7. Under these circumstances, on the plea of colourful exercise by Investigation Agency, petitioner would be with ample opportunity to agitate his pleas before the competent trial Court having jurisdiction and he may substantiate his pleas through latent and patent evidence; trial Court would be competent to decide the matter after being heard both versions in juxta position while scanning the evidence minutely.

8. In view of above, instant petition is not maintainable hence same was dismissed by short order dated. 18.12.2014 and these are the reasons whereof.

(R.A.) Petition dismissed

PLJ 2015 Karachi 116 [Original Civil Jurisdiction]

Present: (Sic)

MUHAMMAD ASIF KHAN--Plaintiff

versus

Mst. ZUBAIDA KHANUM & 4 others--Defendants

Civil Suit No. 309 of 2006 and C.M.As. Nos. 4800, 243 of 2014, decided on 11.9.2014.

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

----O. XXI, R. 58--Execution cannot be stayed by passing an order--Remedy lies before executing Court and not by way of filing of application--Maintainability of petition--Validity--It is an admitted position that sale agreement between plaintiff and defendants was executed during pendency of suit before Banking Court, if plaintiff is so much interested in suit, property and high stakes are involved, plaintiff may participate in auction proceedings and get property at forced sale value--Plaintiff did not implead as defendant in suit--There is no grievance mentioned in plaint against proposed defendant and admittedly property stood mortgaged prior to execution of claimed agreement--Application was dismissed.

[P. 118] A & B

Mr. S.Amjad Hussain, Advocate for Plaintiff.

Mr. S. Danish Ghazi, Advocate for Intervener.

Date of hearing: 11.9.2014.

Order

Through this application, it is prayed that Execution No. 17/2009 in Suit No. 188/2004 pending before Banking Court No. 3 at Karachi be stayed in view of the pendency of this suit. Learned counsel for the plaintiff submits that he purchased the subject property from the defendants and paid a sum of Rs.6 Millions as a part consideration of the suit property. He states that he is partially in possession of the suit property and running his business and in case the proceedings before the Executing Court are not stayed he will suffer irreparable loss. Learned counsel for the proposed defendant (Bank) says that this Court is not sitting in appeal and therefore execution cannot be stayed in this suit.

It is an admitted fact that suit was filed before the Banking Court in the year 2004 on the basis of mortgage, registered to protect the interest of the Bank in respect of the finance facility extended to the defendants in suit, who are also defendants in this suit. Plaintiff claims to have purchased suit property admittedly when the property stood mortgaged through a registered document in favour of the Bank. Although learned counsel for the plaintiff submits that he made required enquiries before entering into the agreement but no documentary proof is annexed with the plaint to that effect. It is also not mentioned in the plaint that any Search Certificate was applied before entering into claimed agreement. In these proceedings, I am not sitting as an Appellate Forum of the Banking Court and in original jurisdiction while not hearing any appeal in the execution proceeding, in my humble view execution cannot be stayed by passing an order in this suit, therefore, this application is dismissed.

1. Through this application, it is prayed that proposed defendant (HBL) may be made party in these proceedings on the ground that the suit property stands mortgaged with the Bank and a suit has been filed before the Banking Court No. III at Karachi, which stands decreed in favour of the plaintiff (HBL) of such suit and an execution has been filed through which auction of the suit property is prayed. Learned counsel for the plaintiff submits that he has an interest in the property as he had entered into an agreement to purchase this property from the defendants. According to him he has paid a sum of Rs.6 Millions and remaining amount of Rs.6 Millions is yet to be paid by him to the defendants. He further submitted that he has moved an application before the Executing Court U/O XXI Rule 58, CPC, which application has been dismissed and he has filed a review in respect of such order.

Learned counsel for the proposed defendant (HBL) submits that to the knowledge of the counsel, plaintiff has not preferred any

appeal or petition against such order. He submits that the remedy lies before the Executing Court and not by way of filing of this application, plaintiff cannot be allowed to seek a remedy which ought to have been availed before the Executing Court, therefore, this application is not maintainable. He further submits that Bank was not party to any claimed agreement between the plaintiff and the defendants and the property stood mortgaged with the Bank prior to the execution of claimed agreement between the plaintiff and the defendants in respect of suit property and moreover plaintiff did not implead the proposed defendants as defendants at the time of institution of the suit. He further says that controversy is between the plaintiff and the defendants and proposed defendant (HBL) is not a necessary party in adjudication of such dispute.

It is an admitted position that sale agreement dated 17.11.2005 between the plaintiff and the defendants was executed during the pendency of Suit No. 188/2004, filed by proposed defendants against the defendants before the Banking Court, if plaintiff is so much interested in the suit, property and high stakes are involved, plaintiff may participate in the auction proceedings and get the property at forced sale value.

It is also a fact that plaintiff did not implead the proposed defendant as defendant in the suit in the year 2006 when this suit was filed. There is no grievance mentioned in the plaint against the proposed defendant and admittedly the property stood mortgaged prior to execution of claimed agreement. In such situation this application is dismissed.

(R.A.) Application dismissed

PLJ 2015 Karachi 118

Present: Muhammad AliMazhar, J.

YUSUF MUHAMMAD SIDDIQ & 16 others--Plaintiffs

versus

MUHAMMAD RAFIQUE--Defendant

Suit No. 465 of 2012 and C.M.A. No. 361 of 2014, decided on 27.1.2015.

Arbitration Act, 1940 (X of 1940)--

----S. 34--Suit for partition--Dispute relating to partnership business--Failed to invoke arbitration clause in partnership deed--Resolution of dispute through arbitration--Power to exercise its discretion to stay legal proceedings--Valid arbitration agreement--Validity--Party who wishes to refer to dispute to arbitration has to apply without delay to Court for stay of proceedings in breach of agreement to arbitrate dispute arose between parties must fall within scope of arbitration--Issue of partition of property would be considered separately and or in isolation without recourse to arbitration which amounts to exasperate and frustrate arbitration clause--Partners are not allowed to pick and choose as to which dispute convenient or feasible to be decided by arbitrator and or Court but it is for Court to decide keeping in view dispute resolution clause--Each case has different facts and grant or refusal of stay is dependent--Court can make an objective assessment and come to conclusion whether stay legal proceedings can be granted or refused.

[Pp. 122 & 125] A & B

Mr.Amel Khan Kansi, Advocate for Plaintiffs.

Mr. MuhammadNajeeb Jamali, Advocate for Defendant.

Date of hearing: 18.9.2014.

Order

This order will dispose of an application filed under Section 34 of the Arbitration Act, 1940 by the defendant.

1. Brief facts of the case are that the plaintiffs and the defendant are partners in a partnership firm "M/s. Abdul Sattar Haji Dawood & Sons". The present suit is for partition of Plot Nos. S/B 39 to S/B-56 in Survey Nos. 191 (Part), 192-193 (Part) 195 Deh Gujro Block No. 13-D/2- KDA Scheme No. 24, measuring 17008 Sq. yards amongst the plaintiffs and the defendant according to their share mentioned in Para No. 17 of the plaint as well as in deed of partnership dated 14.11.1975 read with deed of partition dated 20.11.1990 and deed of rectification dated 15.12.1992.

2. The defendant in his application referred to Paragraph No. 15 of the partnership deed in which it is provided that all the disputes relating to the partnership business shall be referred to the arbitration. The plaintiffs have failed to invoke the arbitration clause as provided in the partnership deed, therefore, their suit is liable to be stayed unless the dispute is referred to the arbitration and resolved through agreed mechanism.

3. The plaintiffs' attorney filed the counter affidavit and opposed the stay of the suit on the ground that there is no dispute between the parties in terms of arbitration clause contained in the partnership deed. It is further stated that the plaintiffs are ready and willing to pay the share of the defendant to the extent of his admitted share in the property in question. The defendant wants to assert the claim which is not covered in the prayer clause of the present suit and it is for him to avail proper remedy in accordance with law.

4. At the very outset, learned counsel for the defendant referred to the partnership deed dated 14.11.1975 and argued that under Clause 15 of the partnership deed, proper mechanism has already been postulated for the resolution of dispute through arbitration. For ready reference, Clause 15 of the partnership deed is reproduced as under:--

"15. All disputes relating to the partnership business, meaning and construction of this Deed shall be referred to an arbitration of 2 arbitrators to be appointed by the mutual consent of all the partners, and in case of their disagreement, shall be referred to an umpire to be selected by the said arbitrators, whose award shall be final, conclusive and binding on all the partners to this agreement."

1. The learned counsel also referred to a deed of rectification dated 15.12.1992 in which the deed of partition dated 20.11.1990 is also mentioned with some schedules relating to share of the partners of the firm including the joint ownership of the different properties. He also referred to Paragraph 11 of the partnership deed in which it is clearly provided that in the event of death of any partner, the male heirs of the deceased partner shall with the consent of surviving partners be admitted to the partnership firm to the extent of the deceased partner's share in the partnership firm at the date of death of the partner. It was further agreed that in case of any partner or partners retirement from the partnership firm, the partnership firm shall be run by continuing partners if they so desire. Learned counsel further argued that in pursuance of the order dated 15.05.2014, he filed a statement on 02.06.2014 in which without prejudice to the application moved under Section 34 of the Arbitration Act and without admitting any allegation or claim of the plaintiffs, his client submitted a proposal that after the death of his father on 15.07.1998, he is entitled to claim the share of his father in the properties as legal heir. The schedule-II of the rectification deed reflects to the properties given to the defendant which are in possession of the defendant so, the plaintiffs should undertake that the defendant's possession shall not be disturbed. Learned counsel also pointed out Paragraph 15 of the plaint to show that the plaintiffs themselves pointed out a triable dispute through arbitration which is reproduced as under:

"15. The defendant has caused colossal damage to the plaintiffs due to his adamant, unjustified and totally indifferent attitude towards rest of the partners/heirs of the partners and the plaintiffs reserve their right of initiating appropriate action in law for redress of their grievances. At present the suit has been instituted as the defendant in complete violation and supersession of the Partnership Deed now exerts claim over and above to what he is entitled under the Partnership Deed being 5% in the subject property as a partner. The share proportion of the defendant is also clearly shown as 5% in the rectification deed. Legally and factually the defendant is not entitled to anything in excess of 5% in the land in general and subject property in particulars."

1. The defendant in his statement pointed out various issues relating to the partnership deed and the settlement of dispute and in this statement too, he prayed that the matter may be referred to the arbitration in accordance with the partnership deed. He also made much emphasis that the plaintiffs have prayed for the order of partition of the properties in question in view of the deed of partnership dated 14.11.1975 read with deed of partition dated 20.11.1990 and deed of rectification dated 15.12.1992, so proper course is to resolve the dispute through an agreed mode in the partnership deed rather than the suit for partition.

2. On the contrary, the learned counsel for the plaintiffs argued that the defendant has failed to point out any triable dispute through arbitration in terms of deed of partnership. The learned counsel further pointed out an order dated 15.5.2014 in which his associate Mr. Arshad Tayyab Ali conceded to before this Court that the plaintiffs are willing to provide whatever share the defendant is entitled to in accordance with law and for that amicable settlement is to be arrived at between the plaintiffs and the defendant so that the share of other partners may be paid in accordance with law. In the same order, the counsel for the defendant submitted that though the defendant has some other issues relating to the business which are not the subject matter of the suit. However, he submitted before this Court that he will seek instructions from his client. The matter was adjourned with the directions to the counsel for the defendant to make a definite statement as to whether the defendant is willing to act in accordance with the proposal made by the counsel for the plaintiffs. After inviting my attention to the aforesaid Court's order, the learned counsel for the plaintiffs reiterated that the properties in question can be partitioned without referring to the matter to the arbitration and whatever the issues raised by the defendant in the application or the statement filed in compliance of the order by this Court dated 15.05.2014 have nothing to do with the property in question which can be easily partitioned by this Court.

3. Heard the arguments. An arbitration agreement is a contractual undertaking by which parties agree to settle the dispute by way of arbitration rather than to proceed in Court. Whenever, the .dispute arises any party of the agreement may apply for staying of Court proceedings. A party who wishes to refer to the dispute to arbitration has to apply without delay to the Court for the stay of proceedings particularly in breach of agreement to arbitrate the dispute which arises between the parties must fall within the scope of arbitration. The world dispute is to be given its ordinary meaning and includes any claim which the other party admits under Section 34 of the Arbitration Act. The Court has power to exercise its discretion to stay the legal proceedings provided that there has been a valid arbitration agreement, the proceedings in Court have been commenced, the application is made by a party to the proceedings before filing written statement and or taking any other step and he is ready and willing to do all acts necessary to the proper conduct of arbitration. The simple reading of Section 34 of the Arbitration Act demonstrates its object which is meant for minimizing the agony of parties from facing protracted litigation by referring the matter to the arbitrator. However, the Court has to see if there are some reasons as to why the matter should not be referred to the arbitration in accordance with the agreement.

4. In the case of Farid Virani versus Feroz Virani, (PLD 2013 Sindh 386), (authored by me), it was held that Section 34 of the Arbitration Act, 1940 relates to stay of proceedings brought before the Court in the subsistence of valid agreement of arbitration. This section aims at to make arbitration agreement effective and to prevent a party from going to Court contrary to his own agreement. Whether the provisions of this section are attracted, the Court may stay the proceedings requiring the matter to be referred to the Arbitration. In order to stay the legal proceedings it is necessary that the proceedings must have been commenced by a party to arbitration agreement against any other party to the agreement, the legal proceedings which are sought to be stayed must be in respect of a matter agreed to be referred, the applicant for stay must be a party to the legal proceedings, the applicant must have taken no step in the proceedings after appearance, the applicant has to satisfy that he was not only at the time when the proceedings were commenced, but still ready and willing to do everything necessary for the proper conduct of the arbitration and the Court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration. Mere existence of an arbitration clause in the agreement does not bar the jurisdiction of Civil Court. Section 34 does not make it obligatory on a Court to necessarily refer to the dispute to arbitration and exercise the discretion to stay the proceedings unless it is satisfied that there is no sufficient reason why the matter should not be referred to in accordance with the arbitration agreement. The above suit (Farid Virani Case) was filed for dissolution of partnership business and appointment of receiver for distribution of shares and making inventory of stocks etc. Though in the above case Section 34 of the Arbitration Act was expatiated and dilated upon in detail but the discretion of staying the suit was not exercised due to multiplicity somewhat pending litigation of the parties in Court for and against on the same subject matter and nature of controversy including various allegations of fraud vice versa which could not be decided by the arbitrator hence the application in the cited case was dismissed. At this juncture I would be keen on quoting PLD 1993 S.C. 42 [M/s. Eckhardt & Co. v. Muhammad Hanif], in which apex Court held that under Section 34 of the Arbitration Act, stay can be refused by the Court if it is satisfied that there is no sufficient reason for making reference to arbitration and substantial miscarriage of justice would take place or inconvenience would be caused to the parties. No hard and fast rule can be laid down or line of demarcation can be drawn to say in what cases refusal can be made. Each case has different facts and grant or refusal of stay is dependent upon peculiar facts and circumstances of each case. The Court can make objective assessment and come to the conclusion whether stay legal proceedings can be granted or refused.

5. This suit for partition has been filed for the partition of Plot Nos. S/B-39 to S/B-56 located in Survey Nos. 191 (Part), 192-193 (Part) 195 Deh Gujro Block No. 13-D/2-KDA Scheme No. 24 and heavy reliance has been placed on Paragraph 17 of the plaint in which the share of each partner is mentioned and the partition has been sought in view of the deed of partition and deed of rectification. The cumulative effect emerging from all three deeds unequivocally show that the parent document is the deed of partnership and the plot in question is owned by the partnership firm, though the partners have executed the deed of partition followed by deed of rectification. If the application and statement of the defendant filed in view of the order, dated 15.5.2014 is placed in juxtaposition it will transpire that various controversies have been raised by the defendant and he also claims the share by way of inheritance in the partnership business. It is further stated that on vacating the office at Adamjee Insurance Building I.I Chundrigar Road, Karachi the partnership firm received a handsome amount but the defendant has not been paid his share as partner. In fact the defendant tried to demonstrate that his deceased father was holding 10% share and the defendant is holding 5% share and since his father had died on 15.07.1998, he is entitled to inherit the share of his father in the partnership deed. On filing this suit and in response to the application in question, the counsel for the plaintiffs argued that since there is no dispute in relation to the property in question, the same can be partitioned without referring the matter to the arbitrator in terms of partnership deed but on the contrary, the plaintiffs in paragraph 15 of the plaint have pleaded that the defendant in complete violation and supersession of partnership deed exerting the claim while he is not entitled to anything in excess of 5% share in the land in general and the subject property in particular. By saying so, the plaintiffs themselves touched the other properties and used the, words "land in general and subject property in particular". The controversy or the dispute between the parties is not confined to the subject property but there are various other issues raised by the defendant as one of the partners of the firm for which he claims the resolution through arbitration. The present suit is not for the partition alone but plaintiffs have also stated in paragraph 18 that the injunctive order against the defendant is expedient for restraining him not to claim any right in the subject property beyond his 5% share while Paragraph 20 of the plaint relates to the cause of action describing, different events giving rise to the filing of suit, the plaintiffs have also pleaded the cause of action from the date when undue and unjustified hindrances created by the defendant affecting all the plaintiffs. The nature of dispute prima facie shows that there is a heated discussion between two sets of partners in relation the properties owned by the firm including the devolution of shares of a deceased partner amongst his heirs so for all intent and purpose this should be resolved through an agreed mode of arbitration in the deed of partnership. I do not feel it appropriate to subscribe the

argument developed by the learned counsel for the plaintiff that the issue of partition of the property in question should be considered separately and or in isolation without recourse to arbitration which amounts to exasperate and frustrate the arbitration clause. So I am of the firm view that the dispute relates to the partition of the property of the partnership firm for which proper course of its dispute resolution is agreed between the partners in the deed of partnership in a separate clause having wide and broadened scope which covers all the disputes including the one involved herein and there are sufficient reasons for making reference to arbitration. In such a situation the partners are not allowed to pick and choose as to which dispute convenient or feasible to be decided by the arbitrator and or the Court but it is for the Court to decide keeping in view the dispute resolution clause. Each case has different facts and grant or refusal of stay is dependent .Upon peculiar facts and circumstances of each case for which Court can make an objective assessment and come to the conclusion whether stay legal proceedings can be granted or refused.

1. In the wake of above discussion, the proceedings are stayed. Let the parties resolve their dispute in accordance with Clause 15 of the deed of partnership.

(R.A.) Order accordingly

PLJ 2015 Karachi 125 (DB)

Present: Muhammad Ali Mazhar and Naimatullah Phulphoto, JJ.

RAFIQ HAJI USMAN--Petitioner

versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through the Office of the National Accountability Bureau, PRCS Building, Dr. Daudpota Road, Karachi Cantonment, Karachiand 4 others--Respondents

C.P. No. D-5226 of 2014, decided on 27.11.2014.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), Ss. 18(c) & 24(d)--Constitutional petition--Concession of post arrest bail--Warrant of arrest was challenged--Corruption and corrupt practices--Question of constitutional jurisdiction--Grounds for withholding bail in non-bailable offence--Power of arrest--Inquiry and investigation--Validity--Where holder of public office or accused of an offence is arrested by NAB, he will be informed ground in substance of his arrest and will be produced before Court within 24 hours of arrest and such person be liable to be detained in custody of NAB for purpose of inquiry and investigation for a period not exceeding 90 days. [Pp. 132 & 133] A

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

----S. 54—National Accountability Ordinance, (XVIII of 1999) S. 24(d)--Constitution of Pakistan, 1973, Arts. 10 & 199--Constitutional petition--Concession of bail--Warrant of arrest was challenged--Power of arrest--Custody not exceeding to 15 days--Validity--Furnishing of grounds of arrest is mandatory and arrest would not be made without fulfilling requirement of Section 54, Cr.P.C.

[P. 133] B

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), S. 24(d)--Bail in constitutional petition--Plea of bail--It is well settled rather an age old principle that while deciding plea of bail deeper appreciation of evidence is not required and elaborate shifting of evidence cannot be made at time of deciding bail application but only tentative assessment is to be made and High Court while dealing with question of bail in constitutional jurisdiction must consider it carefully and weigh in scale of justice. [P. 134] C

Withholding bail--

----Scale of justice--Reasonableness of grounds for withholding bail--Reasonableness of grounds for withholding bail must be shown through some material and merely a suspicion however, sufficiently strong it might be is not enough to refuse bail. [P. 134] D

Bail--

----Reasonable grounds--Constitutional jurisdiction--NAB matters--Prima facie improbability of conviction--Validity--Though bail may be granted in NAB matters under constitutional jurisdiction which can be judged on ground of hardship and prima facie improbability of conviction of accused on basis of material collected by prosecution and if Court comes to conclusion that there is no reasonable ground that accused has committed any offence, bail may be granted but at same time Court has to also see whether such powers should be exercised so liberally as to nullify and make provisions of NAO, 1999 redundant. [P. 134] E

M/s. Anwar MansoorKhan & Muhammad Ishaq Khan, Advocates for Petitioner.

M/s. Muhammad Noman Jamali & Jamal S.Mufti, Advocates for Allottess.

Mr. Muhammad Riaz, ADPG NAB alongwith Muhammad Mr. Hubaib Malik, I.O. NAB.

Dates of hearing: 10, 13 & 19.11.2014.

Order

Muhammad Ali Mazhar, J.--This petition has been brought to challenge the warrant of arrest issued by the NAB Authorities and the petitioner has also prayed for the concession of post arrest bail.

1. The brief facts of the case are that the Respondent Nos. 1 to 3 have arrested the petitioner on the allegations that he is a front man of Sikandar Abdul Karim against whom inquiry was pending since 2012. The petitioner is brother of Sikandar Abdul Karim who was representing his brother in his absence. There is a dispute between M/s. Beach Developers and its allottees and since certain work was required to be done by the DHA which is allegedly pending therefore, the possession of the properties could not be handed over to the allottees by the developers. On 1.10.2014 the petitioner was arrested by the NAB authorities, however, on 2.10.2014 the petitioner was produced in Court whereby it was revealed that he was arrested pursuant to a warrant of arrest dated 20.11.2013.

2. The learned counsel for the petitioner argued that the petitioner has not committed any offence. The grounds and the reasons of arrest are based on mala fide and without any plausible or cogent reasons. Out of 600 residential flats only 10 allottees have lodged the complaint even otherwise a dispute between the builder and the allottees is a dispute of civil nature and the NAB has no authority under the law to take the cognizance of civil dispute. He further argued that considerable time has lapsed but no reference has been filed by the NAB in the Accountability Court. No purpose would be served keeping the petitioner behind the bar on the basis of groundless charges as the petitioner has not committed any offence under the provisions of the NAO, 1999. Learned counsel further argued that according to the warrant of arrest, the petitioner was found accused of commission of schedule offences of corruption and corrupt practices punishable under NAO, 1999, while the authorization under Section 18(c) of NAO 1999 was issued for investigation against Sikandar Abdul Karim, owner of Beach Developers Karachi and others. However, in the grounds of arrest of the petitioner the allegation of cheating public-at-large has been levelled by not handing over the possession of flats/shops to the allottees in Silver Sand Projects, D.S-123 Khayaban-e-Shamsheer DHA, Phase-VII Karachi. It is further stated in the grounds of arrest that the petitioner in absence of Sikandar Abdul Karim worked as front man of his brother. The learned counsel further argued that the NAB is inviting complaints through public notices in the newspapers. NAB issued a notice to the Managing Director of Beach Developers on 20.11.2012 in which also the name of present petitioner was not mentioned. Similar notices were also issued to the other partners namely, Ms. Nilofer w/o Sikandar Abdul Karim, Haji Younus and Majeeda Fatima. Even the letter dated 27.11.2012 written by the NAB to the partners of Beach Developers as an offer of plea bargain does not suggest anything against the present petitioner. The learned counsel referred to clause (ix) of Section 9 of the NAO, 1999 and argued that in this clause "cheating" means the offence of cheating as defined under Section 415 of Pakistan Penal Code which is an act of deceiving a person fraudulently or dishonestly induces any person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induce the person so deceived to do. The learned counsel argued that it is quite evident from the material available on record that neither the petitioner has cheated any person nor caused any damage or harm to any person or property. In support of his arguments the learned counsel referred to the case of Begum Riffat Ahad v. NAB (2003 P.Cr.L.J. 87) in which it was held that furnishing of grounds of arrest is not only the requirement of Section 24(d) of NAO, 1999 but it is also mandated in Article 10 of the Constitution. He next referred to the case of Zahoor Ahmed Shaikh v. NAB (PLD 2007 Karachi 243) in which the learned Division Bench of this Court while dilating upon various provisions of NAO, 1999 and Cr.P.C. held that under the powers of arrest the Chairman, NAB can deprive the liberty of citizens, therefore, it is to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions mentioned in any clause of Section 54 of the Code. Further the conditions prescribed for the exercise of such powers including procedural requirement must be strictly followed and he should conduct himself justly, fairly, equitably for the advancement of the purposes of Ordinance in accordance with law. The Chairman NAB is under an obligation and duty bound to arrest a person if he is involved in a non-bailable offence subject to the condition that the requirements of Section 54 are fulfilled. In the case of Muhammad Hanif v. NAB (PLD 2007 Karachi 429), the learned Division Bench of this Court observed that the I.O. did not collect or produce any material before the Judge connecting the petitioner with the crime but in spite of that the Judge granted police remand which was not justified hence the remand orders were declared illegal. Learned counsel further referred to the case of Abdul Qadir v. Federation of Pakistan (2002 SCMR 1478) in which the apex Court held that the conveyance of the grounds and substance on the basis of which the accused is arrested is the first essential ingredient of Section 24(d) of the NAO, 1999 which is mandatory in nature and has to be complied with. In the case of Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 S.C. 14), pertaining to the detention matter under the Defence of Pakistan Ordinance, 1965, the apex Court held that an action which is mala fide or colorable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant consideration is also not an action in accordance with law. Action taken upon no ground at all or without proper application of the said of the detaining authority would also not qualify as action in accordance with law and would therefore, have to be struck down as being action taken in an unlawful manner.

3. On the contrary, the learned ADPG NAB argued that the petition is premature. The petitioner is already on remand and the investigation is going on hence at this stage there is no justification to seek the bail. The I.O. is still in the process of collecting the material which is to be confronted to the petitioner. The investigation was authorized against the accused Sikandar Abdul Karim of Beach Developers and the present petitioner being the brother of aforesaid person was himself dealing the matters with allottees and also receiving instalments but the possession was not handed over to the allottees, hence he has also committed an offence under Section 9(a) of the NAO, 1999. He was given the bank mandate to operate an account in Metropolitan Bank, DHA Branch, Karachi. He was also engaged with the correspondence with the NAB and his visiting card reflects that he was performing the duties as Chief Executive and copy of one visiting card was also produced on which backside the petitioner in his own handwriting allowed one of the allottees four instalments for the payment of extra charges. It was also averred by the learned ADPG NAB that Sikandar Abdul Karim executed a general power of attorney in favour of the petitioner to perform various functions. Mere pendency of any civil suit with any allottee does not debar NAB to investigate any matter in which corruption is suspected. None of the allottees has been given possession of any flat or shop and for last 22 years the allottees are raising hue and cry for the possession of their booked unit/shop. He further argued that 11 cheques are available with the I.O. to show that the petitioner had drawn Rs. 11 millions from the account of Beach Developers and transferred the same in his own account. At least nineteen 161, Cr.P.C. statements of affected allottees have been recorded by the I.O. so far.

4. The project in question was to be completed in the year 1994 which is still incomplete and according to DHA there are number of violations including construction of an additional floor, excessive height of the building reduction in the arcade area, excessive height of mezzanine and basement. It was further argued that the building plan and the revised building plan was submitted to the DHA which was not approved as they contain violations of their building regulations. Learned ADPG concluded that there is sufficient incriminating material to justify the arrest and filing of reference by the NAB and the petitioner is not entitled to the concession of bail. In support of his argument he referred to the case of Muhammad Zafar Iqbal v. State (2003 P.Cr.L.J. 170) in which this Court observed that material collected by the prosecution shows that the accused has committed such acts which amounts to abetment of the offence of corruption and corrupt practices by the principal accused. Since reasonable grounds existed to connect the accused with commission of the offence the bail was declined. He next referred to the case of Ghulam Haider Jamro v. Chairman, NAB (2007 YLR 541), in which Court observed that under Article 199 of the Constitution, the grant of bail to accused involved in NAB cases though not barred by virtue of Section 9(b), NAO, 1999 but before exercising said jurisdiction the High Court had to see whether such powers should be exercised so liberally as totally nullify and make provisions of 9(b) of the Ordinance redundant. In the case of Asher Jan v. State (2002 MLD 603), the Court held that the criterion of bail in accountability cases would be different from that laid down for the cases under other laws. High Court has power to grant bail in suitable cases and such suitability could be judged on the ground of hardship and prima facie high improbability of conviction of the accused on the basis of material collected by the prosecution against him. In the case of Jamil A. Durrani v. State (2002 MLD 1344) this Court held that the bail can be granted in cases under NAO, 1999 but only in appropriate cases where the Court comes to the conclusion that there is no reasonable ground that the accused has committed the alleged offence.

5. M/s. Muhammad Noman Jamali and Jamal S. Mufti, counsel for the affected allottees filed applications on behalf of some of the affected allottees and requested that they may be allowed to assist the prosecution. They relied on the judgment of this Court reported in PLD 2013 Sindh 357 in which also in the NAB matter the complainant bank filed an application under Order I Rule 10, CPC for impleading them, however, their application was dismissed by this Court but their counsel was allowed to assist the prosecution. Hence we also allowed the counsel for the affected allottees to assist the prosecution. Mr. Noman Jamali argued that the petitioner in the capacity of chief executive himself signed the addendum agreements with the affected allottees. He also received the installments from the allottees and in the absence of his brother he was looking after the affairs of beach developers and the project. The statements of the witnesses recorded by the I.O. under Section 161 Cr.P.C. have clearly shown the involvement of the petitioner. On receiving the installments the petitioner induced the members of the public-at-large that they will be given possession of their flats/shops but despite making payments they are deprived. The learned counsel appearing for the allottees referred to the case of Frida Rohail v. State (2007 MLD 347), in which also bail was applied in the NAB case in C.P. which was refused for the reasons whether the signature of the petitioner on the agreements was genuine or not and whether petitioner entered into an agreement with two witnesses by using misappropriated amount could only be considered after conclusion of the trial. He next referred to the case of Mrs. Riaz Qayyum v. State (2004 SCMR 1889) in which the apex Court held that the elaborate sifting of evidence cannot be made at the time of deciding the bail application but only tentative assessment is to be made. They further referred to the case of Abdul Aziz Khan Niazi v. State (PLD 2003 S.C. 668) in which the apex Court in the NAB case held that bail cannot be claimed as a matter of right but there can also be no departure from the rule that bail in non-bailable offences should not be withheld as punishment therefore, the High Court while dealing with the question of bail in constitutional jurisdiction must consider it carefully and weigh in the scale of justice. The reasonableness of the grounds for withholding the bail from a person accused of a non-bailable offence must be shown through the material and merely a suspicion however, sufficiently strong it might be, is not enough to refuse the bail. The apex Court granted bail in the light of rule of consistency.

6. Heard the arguments. The corruption and corrupt practices is provided under Section 9 of the NAO, 1999. A holder of a public office or any other person is said to commit or to have committed the offence of corruption and corrupt practices for which the incidence are provided under clauses (a) (i) to (xii) while clause (b) clearly spells out that all offences under NAO, 1999 are non-bailable. At this juncture, we would also like to take into consideration the definitions of "accused" "associate" and "person". The definitions made us to understand that the "accused" includes a person against whom there are reasonable grounds to believe that he is involved in the commission of any offence under NAO, 1999 or is subject of an investigation or inquiry by the NAB. The term "associate" means any person who is or has been managing the affairs or keeping accounts for the accused or enjoyed any benefit from the assets and the "person" includes a company or body corporate, the sponsors, Chairman, Chief Executive etc. and in case of any firm, partnership or sole proprietorship the partners, proprietor or any person having any interest in the firm, partnership or proprietorship concern or direction or control thereof. The offence provided under Section 9(a)(ix) of NAO, 1999 is an offence of cheating as defined under Section 415, PPC. A person said to have commit the offence of cheating if he dishonestly induces members of the public-at-large to deliver any property including money or valuable security to any person.

7. The powers of arrest are vested in the Chairman NAB under Section 24, who at any stage of the inquiry and investigation can issue direction that the accused if not already arrested shall be arrested while under clause (e) of Section 18 of NAO, 1999, the Chairman NAB and such members officers or servants of the NAB can exercise for the purpose of an inquiry or investigation, the powers to arrest any person and all the powers of an officer-in-charge of police station under the code. Though under clause (f) of the same Section it is clearly provided that an inquiry or investigation shall be completed expeditiously as may be practical and feasible while under clause (d) of Section 24 an overriding effect was given that notwithstanding anything in the code where a holder of public office or any other person accused of an offence is arrested by NAB, he will be informed the ground in substance of his arrest and will be produced before the Court within 24 hours of arrest and such person be liable to be detained in custody of NAB for the purpose of inquiry and investigation for a period not exceeding 90 days. So far as the remand of accused person is concerned, the Court may remand him to custody not exceeding to 15 days at a time and for every subsequent remand the Court shall record reasons in writing copy of which shall be sent to the High Court. The learned counsel for the petitioner referred to the cases of Begum Riffat Ahad, Ahmed Shaikh and Abdul Qadir (supra) in which Section 24(d) of the NAO, 1999 was dilated upon read with Article 10 of the Constitution that furnishing of grounds of arrest is mandatory and the arrest should not be made without fulfilling the requirement of Section 54, Cr.P.C. In the case in hand not only the warrant of arrest was issued but the grounds/reasons of arrest were also communicated to the petitioner on 01.10.2014 at the time of his arrest so we do not feel any illegality or violation of Section 24 (d) of NAO, 1999 or Section 54 of Cr.P.C. in which under its first condition a person can be arrested by the police without a warrant if he has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists of his having been so concerned. Nothing has been committed wrong by the NAB while arresting the petitioner in accordance with law. The case of Begum Agha Abul Karim Shorish Kashmiri (supra) is also distinguishable as nothing has been pointed to us from the record that the arrest was mala fide or colorable exercise of powers.

8. It is an admitted fact that the petitioner is on remand and the investigation has not been completed nor any reference has been filed by the NAB in the Accountability Court. The learned counsel for the petitioner also referred to the case of Muhammad Hanif (supra) in which the remand order was declared to be illegal for the reasons that the I.O. did not collect or produce any material before the Judge connecting the petitioner with the crime despite that the Judge granted police remand so the bench was of the view that the Court was not justified to grant the remand. The petitioner has not challenged the order of remand or any illegality committed while granting the remand so the precedent alluded to is distinguishable. Even otherwise under Section 3 of the NAO, 1999 it is clearly mentioned that the provisions of Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. Though Section 17(a) explicates that unless there is anything inconsistent, with the provisions of the Ordinance, the provisions of Code of Criminal Procedure shall mutatis mutandis apply but clause (c) further explicates that the Court may for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.

9. It is well settled rather an age old principle that while deciding the plea of bail deeper appreciation of the evidence is not required and elaborate sifting of evidence cannot be made at the time of deciding the bail application but only tentative assessment is to be made and the High Court while dealing with the question of bail in constitutional jurisdiction must consider it carefully and weigh in the scale of justice. The reasonableness of the grounds for withholding the bail must be shown through some material and merely a suspicion however, sufficiently strong it might be is not enough to refuse the bail. In the cases of Zafar Iqbal, Ghulam Haider Jamro and Asher Jan (supra) the dicta laid down plainly expressed that if prosecution shows the material which reasonably connects the accused with the commission of offence the bail may be declined. Though the bail may be granted in the NAB matters under the constitutional jurisdiction which can be judged on the ground of hardship and prima facie improbability of conviction of accused on the basis of material collected by the prosecution and if the Court comes to the conclusion that there is no reasonable ground that the accused has committed any offence, the bail may be granted but at the same time the Court has to also see whether such powers should be exercised so liberally as to nullify and make provisions of NAO, 1999 redundant. The white collar crimes are mostly based on documentary evidence and to find out in a nutshell whether a case of bail is made out or not? The Court has to preview and glance over the incriminating material for tentative assessment. Let us go through the material collected and produced by the prosecution during ongoing investigation which are as under:--

(a) Account opening form of the Beach Developers in Metropolitan Bank Ltd. dated 09.02.2002. The form was duly signed by all the partners including Sikandar Abdul Karim, elder brother of the petitioner. (A/c No. 20311-714-101615).

(b) Letter of mandate dated 09.11.2002 for the same account (A/c. No. 101615) duly signed by all the partners whereby the signing mandate/authority was given to the petitioner for operating this account.

(c) Letter dated 22.12.2012 written by the petitioner to the Director General NAB in which he requested the NAB to provide details of the complaint enabling him to prepare the response after consultation with Sikandar Abdul Karim. This letter was written by the petitioner on the letter head of Silver Sands Ocean Beach Apartments.

(d) Copy of visiting card of the petitioner in which he has been shown as Chief Executive of Silver Sands Ocean Beach Shopping Mall and Apartments. On the backside of this card in his own handwriting the petitioner allowed the payment of four installments of extra charges of Rs.6,00,000/-.

(e) The learned counsel for the petitioner denied the handwriting of the petitioner on the aforesaid visiting card. The prosecution has produced the hand writing expert report dated 5.11.2014. (Issued from the office of A.I.G Police, Forensic Division, Sindh, Karachi). In the description of document at Sr. No. 1 the above visiting card bearing signature on the backside marked as Q-1 and handwriting Q-5 are mentioned and in the concluding remarks the handwriting expert observed as under:--

"Reason: pen pressure, tremor refers to depth and density of ink, deposits, pen lift, refer to relative width in rejoining and connection of line retracting ticks were not detected of a forgery in questions.

At the end of this process the (QDE) have arrived with peer view at conclusion as follows:

OPINION: Matched"

(f) Minutes of meeting dated 09th July, 1992 held at site office of Beach Developers attended by the petitioner and Muhammad Iqbal Memon, Vino Advani, Sikandar Abdul Karim and Younus Rehmatullah in which it was decided that the Finance and Recovery will be handled by the petitioner. The above minutes are also mentioned in the handwriting expert's report and the signature of the petitioner was found matched.

(g) Terms and conditions of addendum No. 1 dated 15.5.2000. This was signed by the petitioner as Chief Executive and in the Condition No. 7 it was agreed with the allottee that "The construction of apartment/shop will be completed within one year of signing this addendum. There will be no escalation provided all the installments as agreed are paid according to schedule". This document is also mentioned in the handwriting expert's report at Sr.No. 4 and the result was found matched, (three similar addendum were also pointed by the counsel for the affected allottees which are available in the file at Page No. 173, 223, 305 and 499).

(h) Copies of 11 cheques issued in the year 2011-2012 to show that a sum of Rs.11 million has been transferred from the account of Beach Developers in the account of the petitioner.

(i) The I.O. has recorded 161 Cr.P.C. statements of nineteen affected persons who have already paid considerable amount to the builders against their booked apartments or shops. Total amount paid by them is Rs.31,208,475/-. According to the prosecution this amount was paid by the affected persons much earlier and if the current valuation is made at par the figure of the amount would be highly inflated.

(j) Copy of general power of attorney executed by Sikandar Abdul Karim in favour of the petitioner.

In clause 6 the powers were given to the petitioner "To manage, control, supervise, deal with and look after the affairs of my aforementioned businesses on my behalf for me and also the legal proceedings which are pending before the Courts of law or authorities shall be filed against me in future." In the recital of the power of attorney the principal Sikandar Abdul Karim is said to have been engaged in the business of construction including some other businesses.

1. The learned counsel for the petitioner argued that the petitioner has no nexus or connection with alleged offence and he has been falsely implicated in the case. He further argued that the petitioner has not committed any act of cheating as defined in Section 415, PPC nor dishonestly induced members of the public-at-large to deliver any property including money or valuable security to any person. On the contrary, the documents produced by the prosecution are self-explanatory and sufficient to incriminate the petitioner. The incriminating material is amply showing that the petitioner was at the helm of affairs and not only actively participated in the affairs of Beach Developers but also acted as attorney of his elder brother Sikandar Abdul Karim. He transferred the amount from the firm's account to his own account. He also signed the addendum agreement and committed to deliver the possession. In view of the minutes of meeting, the petitioner was saddled with the responsibility of finance and recovery. The handwriting expert's report has confirmed and verified the signature of the petitioner on various documents mentioned in the description of the documents at Sr.Nos. 1 to 9. The brother of the petitioner Sikandar Abdul Karim is out of Pakistan for the last considerable period. The petitioner's counsel argued that 600 flats were announced out of which only 19 complainants have approached NAB. On the contrary, it is also a fact that in such a huge project large members of public booked their apartments and shops. The project was launched in the year 1992 and despite making payments the possession has not been handed over and the affected allottees are facing serious hardship, agonies and miseries. The numbers or quantity of the complaints is not the decisive consideration but the matter of concern is the pith and substance of the ordeal and distress of the affected members of public-at-large. The investigation is still incomplete and the I.O. stated before us that some more important documents are to be recovered and confronted to the petitioner. It is also a fact that the petitioner is still on remand so in all conscience neither any reasonable ground exists that the petitioner is not connected with the offence in question nor we feel any improbability of conviction on the basis of material collected by the prosecution against the petitioner. Prima facie, sufficient documentary evidence has been collected up till now to connect him with case.

2. As a result of above discussion, this Constitution petition is dismissed. However, the petitioner may repeat the petition for bail after completion of investigation and filing of reference by the NAB Authorities. The observations made by us are tentative in nature and will not prejudice the case of either party. All pending miscellaneous applications are also disposed of.

(R.A.) Petition dismissed

PLJ 2015 Karachi 138 (DB)

Present: Muhammad AliMazhar and Shaukat Ali Memon, JJ.

SHAHID HUSSAIN--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD through Chairman & 4 others--Respondents

C.P. No. D-4084 of 2014, decided on 6.2.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Illegal detention--Detenue may be released on furnishing surety--Misappropriation and embezzlement of custom collection--Illegal debiting of clearing adjustment--Validity--It is well settled that deeper appreciation of evidence is not permissible at bail stage--Object of trial is to be make accused to face trial and not to punish an under trial prisoner. [P. 142 & 143] A

Access to Justice--

----Unreasonable and inordinate delay--Accused is entitled to expeditious access to justice, which includes right to fair on expeditious trial without any reasonable and inordinate delay.

[P. 143] B

Delay in Justice--

----Inordinate delay in importing justice is likely to cause erosion of public confidence in judicial system and it is bound to create sense of helplessness, despair feeling of frustration and anguish apart from adding to woes and miseries. [P. 243] C

PLJ 2014 Kar. 251, 254 & 268, ref.

Mr.Naheed Afzal, Advocate for Petitioner.

Mr.Noor Muhammad Dayo, ADPG NAB.

Date of hearing: 26.1.2015.

Order

Muhammad Ali Mazhar, J.--This petition was brought to this Court by Rashid Hussain to challenge illegal detention of his brother Shahid Hussain. It was also prayed that detenue may be released on furnishing surety to the satisfaction of this Court. Meanwhile NAB had filed Reference No. 13 of 2014 on 30.09.2014, therefore, in view of the order passed by this Court on 21.10.2014, Shahid Hussain was impleaded as petitioner and the counsel for the petitioner filed an amended title and requested that Shahid Hussain may be granted bail in the aforesaid Reference.

1. The brief facts are that petitioner Shahid Hussain received a telephonic call of Respondent No. 3 who asked him to visit NAB office for some investigation regarding NBP Airport Branch, Karachi. After 3/4 days it came to the knowledge of the petitioner's family that he has been detained by the Respondent No. 3 in pursuance of warrant of arrest issued under NAO, 1999. The complaint was filed for and on behalf of Regional Chief NBP, regarding misappropriation/ embezzlement of millions of rupees of custom collection, collected at Air Freight Unit (AFU) booth of NBP Karachi during the years 2009 to 2013. During investigation it revealed that two collection accounts of Custom Department were being operated at NBP Airport Branch Karachi i.e. Account No. 1003-6 for deposit of duties and taxes collected AFU Booth. The NBP authorities bound to deposit the cash collected on the next working day while Account No. 1004-5 was being maintained for the deposit of duties and taxes through pay orders only and the NBP/AFU authorities were bound to forward pay order for clearing at their earliest. The investigation report further revealed that from 9.3.2013 to 15.3.2013 Accused Nos. 1 to 6 collected the duties and taxes but with criminal intention did not deposit the said amount in the above bank account. In Paragraph 11 of the Reference it is alleged that all the accused persons in connivance with each other have misappropriated and embezzled a sum of Rs. 1,019,412,836/- hence they have committed offence of corruption and corrupt practices as defined under Section 9 of the NAO, 1999. The petitioner has been assigned role in sub-paragraphs (n) and (o) of Paragraph (8) of the Reference, which are reproduced as under:--

"(n). That the Accused No. 4 Muhammad Shahid Hussain, Ex-Branch Manager during his posting from 17.9.2011 to 12.03.2013 has been involved in illegal debiting of "Clearing Adjustment A/C # 4038" and the same were credited into the account of Collector Custom as per following details:--

| | | | | | --- | --- | --- | --- | | TRN.DATE | DEBIT ACCOUNT | CREDIT ACCOUNT | AMOUNT | | 04.07.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 117,941,650 | | 12.10.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 60,741,402 | | 26.11.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 9,000 | | 28.11.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 25,500,000 | | 30.11.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 37,500,000 | | 07.12.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 3,200,000 | | 13.12.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 22,500,000 | | 14.12.2012 | CLG.ADJ.GL-4038 | COC C-1004-5 | 39,087,969 | | 07.01.2013 | CLG.ADJ.GL-4038 | COC C-1004-5 | 6,938,950 |

(o) That he being Branch Manager of NBP Airport Branch Karachi illegally permitted the Accused No. 5 Waqas Ahmed Khan and others to work at AFU Booth. The said private persons were involved in clearance of GDs on credit basis, pocketing cash collection and illegally debiting of various accounts."

1. The learned counsel for the petitioner argued that the petitioner was taken into custody on 27.06.2014 in violation of Section 24 (d) (a) of NAO, 1999. Even the grounds of arrest are vague and the respondents have misused their powers. He further argued that no specific role has been assigned in the Reference against him. He further argued that Accused No. 1 has already been granted bail by this Court while Accused Nos. 6 and 7 are on pre-arrest bail by this Court. Petitioner was arrested in the month of June, 2014 while the charge was framed by the learned trial Court on 2.10.2014. The prosecution has cited calendar of more than seventeen witnesses and so far the trial Court has been able to record examination-in-chief of only one witness. The investigation has been completed and no purpose would be served to retain the accused in custody for an unlimited period especially in the situation where the pace of trial is much slow which shows that trial Court will take considerable time to conclude the trial. The accused is rotting behind the bar since June, 2014 and in seven months examination-in-chief of only one witness has been recorded while under Section 16 of NAO, 1999, Court has to proceed the case from day to day and dispose of the same within thirty days which period has lapsed.

2. The learned ADPG NAB argued that the petitioner has played important role which is mentioned in Paragraphs 8(n) and (o) of the Reference. He was posted as Branch Manager from 17.9.2011 to 12.3.2013 in AFU Booth where he committed the offence of corruption and corrupt practices. The arrest, detention and remand of the accused was lawful and strictly in accordance with law. He was duly informed about the grounds of arrest. During inquiry it revealed that the bank officials and some other unauthorized persons were involved in illegal banking by clearance of goods declaration on credit basis, pocketing of daily cash collection, shortage of cash and illegal debiting and since petitioner was posted Branch Manager he was found involved in unauthorized debiting and clearing as he permitted to work private persons who were involved in clearing goods declaration on credit basis. The accused has committed offence of misappropriation and caused loss to the public exchequer. The learned ADPG NAB also referred to statements of Muhammad Hassan Branch Manager, Allauddin Cashier/OG-II and Abu Sufyan, Cashier/OG-II, NBP, Airport Branch, Karachi recorded under Section 161, Cr.P.C. by Senior Investigating Officer.

3. Heard the arguments. No doubt the petition was filed by the brother of the petitioner but after discloser of reference, Shahid Hussain was himself made the petitioner and learned counsel filed his Vakalatnama with the amended title which was taken on record. So far has the role of the petitioner is concerned it has been defined in sub-para (n) and (o) of Paragraph (8) of the Reference in which it is stated that Shahid Hussain Ex-Branch Manager was involved in illegal debiting of clearing adjustment in the account of Collector Custom. The prosecution has also shown a table containing ten entries of different amounts. On one hand the allegation is that the Ex-Branch Manager during his posting was involved in illegal debiting into the account of Collector Custom while in the next sub-para (o) the prosecution states that being Branch Manager Shahid Hussain permitted the Accused No. 5 Waqas Ahmed Khan and others to work at AFU Booth and the said private persons were involved in clearance of goods declaration on credit basis. The stand taken in both the paragraphs are contrary. Whether the petitioner was personally involved in illegal debiting or the said offence was committed with his connivance whether he permitted the Accused No. 5 and others to work at AFU Booth, this aspect will have to be seen during trial. It is also an admitted fact that Waqas Ahmed Khan Accused No. 5 has absconded who was allegedly permitted by petitioner to work at AFU Booth as in sub-para (p) it is stated that Waqas Ahmed Khan private unauthorized person illegally worked at AFU Booth was a front man of Accused No. 1. So in all fairness this question cannot be decided at this stage unless evidence is led in the trial Court.

4. The learned ADPG NAB referred to S. 161, Cr.P.C. statement of Muhammad Hassan who narrated almost similar allegations but he himself admitted that he took charge as Manager of the concerned Branch on 12.3.2013 from petitioner while the details of alleged illegal debiting mentioned in the table are pertaining to the period from 4.7.2012 to 7.01.2013. He referred to Waqas Ahmed Khan but he also stated that since his posting he has not seen Waqas Ahmed Khan. He further stated that during proceedings of NAB it revealed that Waqas Ahmed Khan was involved in clearance of G.D. on credit basis and collection of the same was pocketed. He further revealed that Waqas Ahmed Khan used to prepare illegal debit and credit scroll and his writing has been identified on the pink sheets of collection. The same person also highlighted the role of Nadeem Enterprises and firmly stated that the employees of AFU Booth in collusion with M/s. Nadeem Enterprises were engaged in parallel banking. It is further stated that Nadeem Enterprises derived unlawful benefit from the public amount and then failed to repay the same and caused loss to the public exchequer and the said amount is still recoverable from Nadeem Enterprises. It is quite strange to note that despite clear statement in which the complainant highlighted the name of Nadeem Enterprises, the Reference filed by NAB does not refer to anything in relation to the allegation against Nadeem Enterprises. The ADPG NAB also failed to controvert as to what action has been taken against "Nadeem Enterprises". Even Paragraph 11 of the Reference is completely silent where the NAB has fixed joint liability of misappropriated/embezzled amount. Allauddin in his S. 161, Cr.P.C. statement also talked about Waqas Ahmed Khan and his changed standard of living beyond his means. It is further stated that Waqas Ahmed Khan used to call himself nephew of petitioner but he was made Incharge by Muzaffar Ali Zuberi for all AFU Booth. He was also shown various vouchers on which he recognized the handwriting of Waqas Ahmed Khan including debit and credit vouchers and pink sheets. Abu Sufyan in his statement also discussed living standard of Waqas Ahmed Khan posted at AFU Booth by the Ex-Branch Manager Nafees Ahmed Khan. He further stated that few persons were working on daily wages including Waqas Ahmed Khan who were deployed at AFU Booth by Muzaffar Ali however, no record of these persons is available in NBP. After considering the aforesaid statements as well as the arguments of learned counsel we are of the firm view that in order to thrash out the liability and the role of each individual accused recording of evidence is necessary and at this stage it can be safely concluded on the basis of available record that the role of present accused requires further inquiry.

5. Further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that deeper appreciation of evidence is not permissible at bail stage simultaneously it is also well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay. The intention of law is that the criminal case must be disposed of without unnecessary delay. It is not difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries. Reference can be made to orders authored by one of us (Muhammad Ali Mazhar-J) in the case of Ali Anwar Ruk, Abdul Jabbar, Syed Mansoor Ali and Sardar Amin Farooqui reported in 2014 SBLR 766, PLJ 2014 Karachi 251, 2014 CrLJ 777, PLJ 2014 Karachi 254=2014 UC 784 and PLJ 2014 Karachi 268.

6. Under Section 16 of the NAO, 1999 it is clearly provided that notwithstanding anything contained in any other law for the time being in force an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within thirty days. We have already observed that the petitioner was arrested in the month of June, 2014 while the charge was framed in the month of October, 2014 and examination-in-chief of only one witness has been recorded so far which negates the spirit of Section 16 of NAO, 1999. The learned ADPG NAB neither controverted this position nor did he explain the reasons of delay nor attributed any cause of delay to the petitioner or his counsel. The Hon’ble Supreme Court in the case of Muhammad Nadeem Anwar v. NAB reported in PLD 2008 SC 645 held as under:--

"National Accountability Ordinance, 1999 was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking kick backs, commissions and for matters connected and ancillary or incidental thereto. Object of National Accountability Ordinance, 1999, in its preamble, is to provide expeditious trial of scheduled offences within the shortest possible time. Accused was entitled to expeditious and inexpensive access to justice, which included a right to fair and speedy trial in transparent manner without any unreasonable delay. Such intention had been re-assured in Section 16 of National Accountability Ordinance, 1999, laying down criteria for day to day trial and its conclusion within thirty days. Such object did not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to accused. Truth or otherwise of charges levelled against accused could only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. Supreme Court converted petition for leave to appeal into appeal as accused were entitled to grant of bail pending conclusion of trial."

In the case of Muhammad Jahangir Badar vs. NAB, reported in PLD 2003 SC 525, the apex Court held as under:

"7. There is no cavil with the proposition that the State machinery has a right to arrest the culprits and put them to trial for the purpose of establishing guilt against them but it has not been bestowed with an authority to play with the liberty and life of an accused under detention because no one can be allowed to remain in custody for an indefinite period without trial as it is fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial. As in the instant case under Section 16(a) of the Ordinance the Court is bound to dispose of the case within 30 days. It may be noted that inordinate delay in the prosecution case if not explained, can be considered a ground for bailing out an accused person depending on the nature and circumstances on account of which delay has been caused as has been held in the case of Riasat Ali v. Ghulam Muhammad & State (PLD 1968 SC 353)."

1. As a result of above discussion, the petitioner (Shahid Hussain) is granted bail in NAB Reference No. 13/2014 subject to furnishing solvent surety in the sum of Rs. 10,00,000/- (Rupees ten hundred thousand only) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. NAB may also approach to the Ministry of Interior, Government of Pakistan for placing his name on Exit Control List. The petitioner Shahid Hussain shall also surrender his original valid passport in the trial Court. The above findings are tentative in nature and shall not prejudice the case of either party. The petition is disposed of.

(R.A.) Petition disposed of

PLJ 2015 Karachi 145

Present: Salahuddin Panhwar, J.

IMAM ALI and another--Applicants

versus

MUHAMMAD HASSAN and 3 others--Respondents

Rev. Appln. No. 129 of 2013, decided on 26.11.2014.

Limitation Act, 1908 (IX of 1908)--

----S. 5--Condonation of delay--Delay in preferring appeal--Issue of limitation--Legal position of limitation a commandant of law--Validity--When limitation question is relating to cause of action then defaulting party can insist that it is a mixed question of law and facts requiring evidence because claim of accrual of cause of action which, if is based purely on facts set up towards cause of action in pleading--When it is relating to filing appeal, it is only defaulting party, who alone has to satisfy Court by submitting plausible reason for each day’s delay--Appellants had failed in making out a case for setting aside impugned order of dismissal of application u/S. 5 of Act, so passed by appellate Court--Petition was dismissed. [Pp. 148 & 150] A, B & E

Limitation Act, 1908 (IX of 1908)--

----S. 5--Condonation of delay in preferring appeal--Signing vakalatnama in Court--Not demand of law--Validity--To file an appeal it is also not requirement of law and procedure shall stand satisfied if any one of them appears to file affidavit in support of appeal--Signing vakalatnama in Court is not demand of law or procedure. [P. 149] C

Limitation Act, 1908 (IX of 1908)--

----S. 5--Condonation of delay--Vigilant in pursing rights and interest--Plea of--Council was not informed--Principal is bound by acts and omission of his agent--Malafide or illegality--Claimed of damages--Settled principle of law, against such like plea, is that for any mistake, which may be said to have been committed by counsel of a party, or question as to whether or not advocate failed to communicate proper information to his client as to proceedings of his case, only remedy available to such a client/party is to file a suit for damages against such a delinquent counsel with other legal remedies. [P. 150] D

2010 YLR 2683, ref.

Mr. Irfan Ahmed Qureshi, Advocate for Applicants.

Mr. Suleman Dahri, Advocate and Mr. Ashfaque Nabi Qazi, A.G. for Respondents Nos. 1 & 2.

Date of hearing: 12.11.2014.

Order

Through instant Civil Revision application the applicants have assailed the legality of the order dated 05th September 2013 passed by learned Additional District Judge, Shahdadpur in C.A.No. 28 of 2012 “Re-Imam Ali v. Muhammad Hassan & Ors) whereby application u/S. 5 of Limitation Act for condonation of delay in filing appeal against judgment and decree 19.9.2012 and 25.9.2012 respectively passed in FC Suit No. 65 of 2010, was dismissed and in consequence thereof Civil appeal of the applicants was dismissed.

1. Succinctly, but relevant facts, as pleaded in civil suit, are that the Respondents Nos. 1 & 2 filed F.C. Suit No. 65 of 2010 for Declaration, Possession, Mesne Profits and injunction wherein pleading that suit property was originally owned by Bacho (father of Plaintiffs/Respondents Nos. 1 and 2) and Allah Warrayo gifted out his share of 0-50 paisa to his brother Bacho and thereafter, said Bacho gifted out said land to his sons (plaintiffs) through registered gift deed dated 08.10.1976 and further that said Bacho leased out suit land to defendant who had been paying the lease amount to plaintiffs and also that about 2 years ago defendants stopped paying lease money. Thereafter, plaintiffs tried their level best but of no avail. Lastly in month of July 2010 defendants refused to pay lease money and to hand over possession.

In such back-ground the Plaintiffs/Respondents Nos. 1 and 2 filed the suit for following relief (s):--

(a) That, it may be declare that the plaintiffs are owner of the suit land bearing S.No. 617 area 02-01 acres situated in Deh Bhiriwari, Taluka Shahdadpur, District Sanghar;

(b) That, it may be declare that the district officer revenue Sanghar execute deed of convenience dated 17.10.2009 in respect of suit land S.No. 617 area 02-01 acres situated in Deh Bhiriwari, Taluka Shahdadpur in favour of the Defendant No. 1 Imam Ali and Defendant No. 4, illegally without lawful authority is void, baseless illegal, ultravires, fictitious, not binding upon the plaintiffs having no legal effect to be cancelled;

(c) That the defendant may be directed to deliver the vacant possession of the suit land bearing S. No. 617 area 02-01 acres situated in deh Bhiriwari Taluka Shahdadpur, District Sanghar to plaintiff;

(d) That, the Mesne profits amount of Rs. 25312-50 and further amount determined by the Court till delivery of possession of suit property S. No. 617 area 02-01 acres deh Bhiriwari taluka Shahdadpur, be paid by defendant to the plaintiffs;

(e) ………………………………….

(f) ………………………………….

1. The appellants/defendants contested the suit before trial Court and in consequence thereof learned trial Courts decreed the suit of the Respondents Nos. 1 and 2 to extent of prayer clauses (a) and (b) only by judgment and decree dated 19.9.2012 and 25.9.2012 respectively.

2. The appellants filed civil appeal on 05.12.2012 with an application u/S. 5 of Limitation Act for condonation of delay in filing the appeal. The learned appellate Court, hearing the arguments on application u/S. 5 of Limitation Act, dismissed the same by order dated 05.9.2013; which called in question through instant revision application.

3. Learned counsel for the applicants, inter alia, argued that appeal of the applicants ought not have been knocked out on technical ground i.e. delay in preferring the appeal; question of limitation is always a mixed question law and facts; along-with condonation application an affidavit was filed on Oath; that applicant No. 1 was ill hence non-filing of appeal in time was properly explained. Saying so, he prayed for allowing revision. Reliance has been placed on the case laws, reported as 2011 CLC Peshawar 959 and 2005 SCMR 973.

4. On the other hand, learned counsel for the respondents stoutly argued that revision is not maintainable; applicants failed to explain the delay of each day hence appeal was rightly dismissed, being barred by law. No illegality is committed by appellate Court in dismissing the application for condonation of delay. Reliance was placed on the case laws, reported as 2003 SCMR 785, 1988 PLC (S.C) 883, 2010 YLR 3211, 2012 CLC 903, 2010 YLR 2683 and 2006 YLR 705.

5. I have heard the arguments, so advanced by respective sides and have also gone through the available material.

6. Before going into merits of the case it would be significant to mention here that 'issue of limitation' is not a technical ground but is the commandment of the law which creates certain advantage (s) in favour of one therefore, to deprive the party from such advantages/benefits without making the defaulting party to explain the reasons of delay of each day which prevented the defaulting from approaching the Court in time. With regard to legal position of limitation a commandment of law, it would be conducive here to refer the case of Lal Khan v. Muhammad Yousaf, reported as PLD 2011 SC 657 wherein it is held that:

'Aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit etc. is filed beyond limitation each day's delay has to be explained. Where vague explanation was given without even specifying the date of knowledge, nor any explanation tenable in law was provided to justify condonation, delay condoned was violative of law and, was not sustainable'

`F’ …… Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The Courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof’

(underlining and bolding is mine to emphasis).

1. At this juncture, let me be specific in drawing a line that when limitation question is relating to cause of action then defaulting party can insist that it is a mixed question of law & facts requiring evidence because claim of accrual of cause of action which, if is based purely on facts, alleged/set-up towards cause of action in pleading. In such eventuality, it is always safe to let such claim to be evaluated through evidence as such question can well be determined by framing such issue/point, if such plea is disputed by rival party. However, when it is relating to filing appeal, it is only the defaulting party, who alone has to satisfy the Court by submitting plausible reason for each day's delay.

2. On above touch stone, let's examine the plea of the applicants. There are two applicants/appellants in the instant revision and it has never been claimed or alleged that interest of one applicant/appellant is different from that of other applicant/appellant. To file an appeal, it is also not requirement of the law that all appellants should come to file appeal but requirement of law and procedure shall stand satisfied if any one of them (appellants) appears to file affidavit in support of appeal. Signing Vakalatnama in Court is not demand of law or procedure. Thus where appellants are more than one then each is required to explain reasons of his inability in approaching the Court in time. In the instant matter only applicant/appellant Imran attempted to justify the delay which, in my opinion, cannot satisfy the requirement of law for condonation of delay the benefit whereof would be enjoyed by both the appellants/ applicants.

3. Be as it may, let's examine the medical certification, so produced by the Applicant No. 1 to prove circumstances, preventing him from approaching the Court in time. The certificate reads as:

Medical Certificate

This is to certify that Mr. Imam Ali s/o Mitho Khan by caste Rind Taluka Shahdadpur has been suffering from Hepatitis-B and remained under my treatment w.e.f. 29.9.2012 to 02.12.2012.

Now he is advised bed rest and regular treatment and further advised refer to LUMHS Hyderabad for treatment and admission”

The certificate consists of two parts. The first part is being insisted by applicant/appellant for condonation of the delay but the perusal whereof, nowhere, shows that applicant/appellant was confined to bed or was not in a position to move and walk but shows that applicant/appellant was 'under treatment'. Being under treatment cannot be taken that one was confined to bed. The second part of the certificate, however, shows that while issuing 'medical certificate' on 07.12.2012, the applicant/appellant Muhammad Imran was advised as “he is advised bed rest and regular treatment”. It is surprising that when applicant/appellant was advised to 'bed rest & regular treatment' he started pursing the matter by filing appeal. Thus, it becomes quite clear that applicants/appellants cannot be said to have reasonably explained the delay of each day's delay. On this proposition significant to refer the case of Muhammad Ramzan v. Zulfiqar Ahmed, reported as 2003 SCMR 785 wherein honourable Supreme Court held:

'Perusal of the certificate does not indicate that the petitioner was suffering from such disease on account of which he was not in a position to contact his counsel. Moreover, it has not been explained that besides the petitioner, there was no other male member in his family to contact his counsel'

1. In another case, reported as 2006 YLR 1705, it was held that:--

`……. Similarly the illness of one of the appellants is also not a sufficient ground as they were no less than 23 appellants'

1. As regard the plea of applicants/appellants that their counsel did not inform them, it would suffice to say that the appellants/applicants were supposed to be vigilant in pursing their rights and interests. However, the principal is bound by the acts and omission of his agent hence when some malafide or illegality is alleged against the 'agent' the principal should claim damages. The settled principle of law, against such like plea, is that for any mistake, which may be said to have been committed by the counsel of a party, or the question as to whether or not the Advocate failed to communicate proper information to his client as to the proceedings of his case, the only remedy available to such a client/party is to file a suit for damages against such a delinquent counsel with other legal remedies, if available, as was held in the case law, reported as 2010 YLR. 2683.

2. In view of above discussion, I am clear in my view that applicants/appellants have failed in making out a case for setting aside the impugned order of dismissal of application u/S. 5 of limitation Act so passed by learned appellate Court. Accordingly, this revision petition, being devoid of merits, is hereby dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2015 Karachi 150

Present: Salahuddin Panhwar, J.

WALI MUHAMMAD--Appellant

versus

MUHAMMAD RAMZAN and 3 others--Respondents

Second Appeal No. 20 of 2013, decided on 4.12.2014.

Second Appeal--

----Scope--While exercising revisional jurisdictional or even under 2nci appeal scope High Court cannot disturb 'factual controversy' resolved by subordinate Courts unless it is surfaced that impugned judgments are result of non-reading, misreading and violation of legal principles. [P. 155] A

Fair Trial--

----Death of oath commissioner--Report of bailiff--Not part and parcel of evidence--Report was not produced by bailiff into witness box--Court is not competent to'-consider or base its opinion with reference to a document which has not come on record, as required by law of evidence which is always meant to provide a fair opportunity to one wishing Court to believe a fact--Decision or conclusion based on such a document would frustrate concept of 'fair trial' hence, under no circumstances, can be believed.

[P. 155 & 156] B

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

----S. 12--Specific performance of contract--Execution of document--Document of sale was not signed by appellant/plaintiff although he (plaintiff) claimed to be present at time of execution of such document as he admitted in his cross-examination. [P. 156] C

Contract Act, 1872 (IX of 1872)--

----Ss. 2(d) & 2(e)--Document--Agreement--No signature on document--Validity--By not signing same plaintiff/appellant himself turned 'document' into a simple undertaking because such a document could not be enforced against plaintiff/appellant for simple reason of non-signing of document by plaintiff/appellant. [P. 157] D

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

----S. 23--Specific performance--Party to document--Representative-in-interest or principal--Validity--Competence to seek specific performance could be sought by 'any party' or 'representative-in-interest, or principal' of any party--Since it is a matter of record that in instant matter present appellant/plaintiff is not a 'party to document' hence per Section 23 of Specific Relief Act, present appellant/plaintiff was not legally competent to seek enforcement of 'specific performance'. [P. 157] E

Document--

----Matter of record that document, prima facie, involves injury to person and property of other (s) not party to document. [P. 159] F

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

----Ss. 22 & 23--Contract Act, (IX of 1872), Ss. 2(d) & 2(e)--Agreement--Specific performance--Suit of plaintiff/appellant was hit by Sections 22 and 23 of Specific Relief Act, and even document, if any, does not qualify to be an 'agreement' within meaning of Contract Act, therefore, such a suit, at all material times, was not sustainable under law. [P. 160] G

Mr. AbdulLatif Bhatti, Advocate for Appellant.

Mr.Mukhtiar Ahmed Khanzada, Advocate for Respondent No. 1.

Choudhry Bashir Ahmed Gujar, Asstt. A.G. for Respondents.

Date of hearing: 4.12.2014.

Order

Through this 2nd appeal, the appellant has assailed the legality of judgment and decree dated 11.9.2013 and 17.9.2013 passed by learned 2nd Additional District Judge, Shaheed Benazirabad whereby Civil Appeal No. 113 of 2012, filed by the appellant against judgment and decree dated 17.11.2012 and 21.11.2012 passed in FC Suit No. 255/243 of 2011 by 2nd Senior Civil Judge, Nawabshah, was dismissed.

1. Succinctly, facts are that appellant/plaintiff filed a suit for Specific Performance of Contract wherein pleading that suit land viz. agricultural land measuring 2.00 acres out of S.No. 47/3 (4.00) situated in Deh Nasrat Taluka Daur was being looked after and managed by Respondent/Defendant No. 1 for self and others being one of the owner/share holder, who entered entered into a contract to sell the suit land with appellant/plaintiff at rate of Rs. 250,000/- per acre for total sale consideration of Rs. 500,000/-; such agreement was executed in presence of witnesses on 17.6.2009. Appellant/plaintiff paid Rs. 350,000/- to Respondent/Defendant No. 1 towards part payment of sale consideration, who acknowledged receipt in said agreement. As regard remaining consideration it was agreed that appellant/plaintiff will pay the same at time of execution of sale-deed. As per the appellant/plaintiff he was put in possession of the land which, per appellant/plaintiff, he was enjoying as bonafide purchaser. It is further pleaded that appellant/plaintiff was willing and prepared to perform his part of contract but on approach the Respondent/Defendant No. 1 failed to obtain Fardi, Intikhab, NOC, Power of attorney e.t.c.

2. With reference to above pleaded facts, the appellant/ plaintiff sought the following relief (s):--

(a) Decree for Specific Performance of the contract be passed in favour of plaintiff and against the Defendant No. 1 whereby Defendant No. 1 to execute and get registered sale-deed in respect of an area of 02.00 acres land out of Survey No. 47/3 (4.00) situated in deh 03 Nasrat Taluka Daur, District Shaheed Benazirabad, in favour of plaintiff after receiving the residue sale consideration from plaintiff and in case of failure of Defendant No. 1, the Contract be specifically finalized by the Honourable Court through the Nazir of the Court.

(b) Permanent injunction be issued whereby the Defendant No. 1 be restrained permanently from creating or try to create third party interest on suit land viz. an area of 02.00 acres land out of Survey No. 47/3 (4.00) situated in deh 03 Nasrat Taluka Daur, District Shaheed Benazir Abad, or alienating or try to alienate by any mode of alienation to any person except plaintiff or disturbing or try to disturb possession, use, occupation and enjoyment of plaintiff over it and Defendant No. 2 be restrained from issuing Fardi Intikha while rest of defendants be restrained from accepting for registration or registering any document with respect of suit land in favour of any person except plaintiff directly or indirectly by themselves through their subordinates, agents, associates or by any means;

(c) Cost of the suit be awarded to plaintiff;

(d) Any other relief;

1. In response to notice (s) the Defendant/Respondent No. 1 caused appearance; filed his written statement wherein denied the claim of the appellant. He pleaded that he never entered into contract of sale with appellant nor received any sale consideration. He further stated that the sale agreement is false document; that the land was joint property and at the time of alleged agreement he was minor and not competent to execute the sale agreement; that an area of 04.00 acres out of S.No. 47/3 was given to appellant/plaintiff on lease in the year 2009 orally by his brother Imran and soon after his brother Imran demanded more amount from appellant on which appellant vacated 02.00 acres of land and retained 02.00 acres on the pretext that soon he would vacate, which is in illegal possession of appellant; agreement of sale is managed and forged; that no cause of action accrued to the appellant to file the suit.

2. Out of the pleadings of the parties, the learned trial Court judge framed following Issues:--

3. Whether Defendant No. 1, being owner, sold the suit land measuring 02.00 acres out of S.No. 47/3 (4.00) acres situated in deh 03 Nasrat Taluka Daur, District Shaheed Benazir Abad to plaintiff at the rate of Rs. 250,000/- per acre in total sale consideration amount of Rs. 500,000/- through sale agreement on 17.6.2009?

4. Whether in pursuance of sale agreement dated 17.6.2009 Defendant No. 1 received earnest amount of Rs. 350,000/- from plaintiff in presence of witnesses?

5. Whether the plaintiff has accrued cause of action for filing the present suit?

6. Whether suit of plaintiff is not maintainable according to law?

7. Whether the plaintiff is entitled to the relief claimed?

8. What should the decree be?

9. In order to prove the case, the appellant/plaintiff examined himself as PW-1 and produced original copy of sale agreement, office copy of legal notice, two original dhal receipts. He also examined Shahabdin Arain and Muhammad Tarique as PW-2 and PW-3 respectively and then side was closed.

10. In rebuttal the Defendant/Respondent No. 1 examined himself as DW-1 and thereafter, side of the Defendant/Respondent

No. 1 was closed.

1. Having heard the arguments the trial Court dismissed the suit of the plaintiff/ appellant which the appellant/plaintiff challenged through Civil Appeal but same was also dismissed by judgment and decree of appellate Court which have been assailed through instant 2nd appeal.

2. Learned counsel for appellant has argued that no issue was framed in respect of the findings, given by the learned appellate Court; no issue was framed with regard to age .of Respondent/Defendant No. 1 hence findings was not legal; report of bailiff was never confronted to the appellant/plaintiff hence was not worth consideration; efforts of the plaintiff/appellant to examine official defendant (Mukhtiarkar) was declined rather plaintiff/appellant was compelled to close his side; both the judgments and decrees of lower Courts. He placed reliance on the case laws, reported as PLD 1964 (W.P) Karachi 116, 2006 YLR lah. 130, NLR 1996 Civil 385 (Supreme Court), 2011 CLC Kar. 622, 2013 SCMR 1570, PLD 2002 SC 702, 1994 CLC Lah. 1628, 1982 SCMR 816, 2007 CLC Kar. 621, PLD 2002 SC 615, 1992 SCMR 1778, PLD 1989 SC 1123.

3. On the other hand, learned counsel for the Defendant/Respondent No. 1 has seriously opposed the appeal. He argued that scope of 2nd appeal is limited; the document of sale, if any, was not an agreement as there was no signature of the plaintiff/appellant and even the Respondent/Defendant No. 1 was not competent to enter into an agreement of sale as had no such authority from other, co-owners/sharers. The concurrent findings of both the Courts below are well reasoned hence not open to an exception. He has relied on the case laws, reported as 1990 SCMR 28, 2007 SCMR 1884, PLD 2005 Lah. 419, 2010 SLJ 1076, PLD 1990 Lah. 229, 2007 YLR 2689, 2004 YLR 1421, PLD 1994 SC 291, 2003 CLC 1640, PLD 1995 Karachi-254.

4. I have heard the respective parties and have examined the available record.

5. At the very outset I would like to endorse that scope of 2nd appeal or that of revision are almost similar because the word 'appeal' would not equate the scope of 2nd appeal to that of legally provided remedy of first appeal which is recognized as continuity of suit and whole case becomes reopen. I am mindful of the fact that while exercising revisional jurisdictional or even under 2nd appeal scope this Court cannot disturb the 'factual controversy' resolved by subordinate Courts unless it is surfaced that impugned judgments are the result of non-reading, misreading and violation of legal principles. Reference can be made to the case reported as 2013 SCMR 1570 wherein it was held:

“15. Thus, by reading of this provision, it is apparent that the High Court will be justified to interfere with the decision of the lower Courts when it is contrary to law or failed to determine material issue of law or commits substantial error or defect in the procedure, which may have resulted in error or defect in the decision of the case on merits.”

1. The examination of the judgment (s) and decree (s) of lower Courts below would show that both the Court (s) below did err in law while referring the report of the bailiff with regard to the death of the Oath Commissioner although such report was not part and parcel of the 'evidence' nor the report was produced by the Bailiff by appearing into the witness box. A Court is not competent to consider or base its opinion with reference to a document which has not come on record, as required by law of evidence which is always meant to provide a fair opportunity to one wishing the Court to believe a fact so also to one wishing otherwise. A decision or conclusion based on such a document would frustrate the concept of 'fair trial' hence, under no circumstances, can be believed.

So far as to the plea of learned counsel for the appellant/plaintiff that both the Court (s) below erred in law while giving an incorrect opinion with reference to age of the Defendant/ Respondent No. 1 although no such issue was framed nor parties were conscious to prove or disprove the same. Candidly issue with regard to age was not framed, however it is matter of record that evidence was led by the defendant/respondent on this aspect. Besides, these errors at the most may be a ground for remand of the case but since the revisional jurisdiction or that of 2nd appeal of this Court are not merely meant to order for remand of the case (s) on mere error (s) but this Court is always competent to see the legal issue (s)/question (s) while deciding the controversy between the parties.

1. It is an undisputed position that the present appellant/plaintiff has filed the instant suit for 'Specific Performance of Contract' which is governed by Section 12 of the Specific Relief Act, 1877. It is also a matter of record that the document of sale was not signed by the appellant/plaintiff although he (plaintiff) claimed to be present at the time of execution of such document as he admitted in his cross-examination that:

`One Bond writer had written the sale agreement, his name is not remembered to me. At that time I, defendant Ramzan, witnesses Shahabdin and Tarique were present.'

The position, being so, compels me to refer to Section 2(d) and 2(e) of the Contract Act, 1872 which reads as under:--

(d) When, at the desire of the promissory the promise or any other person who had done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise;

(e) Every promise and every set of promises, forming the consideration for each other, is an agreement.

The reading of underlined portion shows that for a writing to qualify as an 'agreement' it must not only be between two (promissory and promise) but should be for some 'consideration' for each other. The 'consideration' not for each other, would not let a bilateral document to attain status of 'agreement'. In other words a contract, being a bilateral document, has to be reduced into writing by means of an agreement enforceable by law between two i.e. the person who had made the proposal and the one who had accepted the same to do a particular thing or abstinence thereof (lawful consideration). (KLR 2012 (SC Pak) 162(i))

Moreover, the document, in question, cannot be said to be an agreement for the simple reason that it is not a bilateral one as plaintiff/appellant did not sign the same. By not signing the same the plaintiff/appellant himself turned the 'document' into a simple undertaking because such a document could not be enforced against the plaintiff/appellant for simple reason of non-signing of the document by the plaintiff/appellant. At this juncture a reference to Section 23 of the Specific Relief Act, being advantageous, is referred hereunder:

Section 23. Who may obtain specific performance.--Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by:--

(a) any party thereto:

(b) the representative-in-interest, or the principal, of any party thereto; provided that, where the learning skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not assigned, his representative-in-interest or his principal shall not entitled to specific performance of the contract, unless where his part thereof has already been performed;

(c) --

(d) --

(e) --

(f) --

(g) --

(h) --

1. The above provision is clear in its nature that competence to seek Specific Performance could be sought by 'any party' or 'representative-in-interest, or the principal' of any party. Since it is a matter of record that in the instant matter the present appellant/ plaintiff is not a 'party to document' hence per Section 23 of the Specific Relief Act, the present appellant/plaintiff was not legally competent to seek enforcement of 'specific performance'.

2. Be as it may, the suit of the plaintiff/appellant is also hit by Section 22 of the Specific Relief Act as the Honourable Supreme Court of Pakistan in the case of 'Gulshan Hamid v. Abdul Rehman' (2010 SCMR 334), while dealing similar situation, held that:

3. A perusal of the deed would indicate that it was signed by the appellant Mst. Gulshan Hamid alone and not by any of the three vendees. As evident from the contents of the deed, it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance, she would not have succeeded because the vendees had not signed the deed so as to accept any of the liabilities. The circumstances under which the contract is made are such that the present plaintiffs are given an unfair advantage over the defendant. Section 22 of the Specific Relief Act, 1877 clearly provides that in such circumstances, the discretion is not to be exercised in favour of the plaintiffs. For ready reference Section 22 (clause-I) is reproduced as follows:--

“22. Discretion as to decreeing specific performance.--The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do, so; but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal.

The following are cases in which the Court may properly exercise a discretion not to decree specific performance:

1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part”

2. This Court in Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 (e) held that the illustrations given in S. 22 are a few instances where, discretion, should not be exercised in favour of specific performance. Rather, these illustrations were held to be not exhaustive and the Courts were at liberty in circumstances as falling within the purview of S. 22 of Specific Relief Act. So far as the case in hand is concerned, it is directly and squarely hit by illustration I of Section 22”.

(underlining has been supplied for emphasis).

On above legal defect the suit of the plaintiff/appellant was not maintainable. Not only this, but the document is also defective on the count that the Defendant/Respondent No. 1 was not competent to sell the land in question because he was only a sharer and there were also other owner (s) and this fact was very much in knowledge and notice of the plaintiff/appellant as is evident from the pleadings of the plaintiff/appellant himself which, being material is reproduced hereunder:--

“2. Defendant No. 1 who is looking after and managing the land for self and others being one of the owner/share holder of the suit land entered into contract to sell the suit land to the plaintiff at the rate of Rs. 250,000/- per acre, for total sale consideration of Rs. 500,000/- and an agreement containing terms of contract was duly executed by parties (Defendant No. 1 and plaintiff) was attested by witnesses and Notary public on 17.6.2009. (Photostat copy of Sale agreement annexed as Aunexure “A”

The above para of the plaint of the plaintiff/appellant is sufficient proof of his active knowledge and notice with regard to status (legal Competence of Defendant/Respondent No. 1) but the document, no where, shows the status of the Defendant/Respondent No. 1 as attorney or authorized person of other owners/sharers'. The position, being so, make me to hold that `consideration', within meaning of Section 23 of the Contract Act, 1872, was not 'lawful' as a whole. The Section, being relevant is reproduced hereunder:--

What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless -- it is forbidden by law; (See Ss. 26, 27, 28, 30 infra) or:

is of such a nature that, if permitted, it would defeat the provisions of any law; or

is fraudulent; or

involves or implies injury to the person or property of another; or

The Court regards it as immoral, or opposed to public policy.

In each case of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is a void”.

In the instant mater, it is a matter of record that document, prima facie, involves injury to the person and property of other (s) not party to the document. On this count too the document was void.

1. In view of what has been discussed above are sufficient to establish that the suit of the plaintiff/appellant was hit by Sections 22 and 23 of the Specific Relief Act, 1877 and even the document, if any, does not qualify to be an 'agreement' within meaning of the Contract Act, therefore, such a suit, at all material times, was not sustainable under the law. These positions would not change the legal position even if the plaintiff/appellant is provided another chance by remanding the case on points which, in no way, would help the plaintiff/appellant to make his lis 'sustainable'. Accordingly, the instant appeal of the appellant/plaintiff was dismissed by short order dated 04.12.2014. These are the detailed reasons whereof. The parties, however, shall bear their own costs. However, the plaintiff/appellant may avail legal remedies against the Defendant/Respondent No. 1 as provided under Specific Relief Act, if he desires so.

(R.A.) Appeal dismissed

PLJ 2015 Karachi 160

Present: Salahuddin Panhwar, J.

M/s. GOLDEN TEXTILE MILLS LTD. BHAI PHERU, DISTRICT KASUR through Chief Executive--Appellant

versus

M/s. SUN SHINE COTTON GINNING & PRESSING FACTORY KHIPRO, DISTT. SANGHAR through its Partner and others--Respondents

Second Appeal No. 37 of 2012, decided on 9.12.2014.

Second Appeal--

----Scope--For succeeding in 2nd appeal, appellant has to establish prima facie that decision was either contrary to law as substantial error or defect in procedure was committed while deciding the matter. [P. 166] A

Agreement--

----No agreement between parties--Goods were delivered to agents--Authority of agent can be impliedly--Agreement does not always depend upon terms or writing--Validity--In absence of writing, it is behavior and conduct of parties which matter to reach to conclude whether there exists any concluded agreement or otherwise.

[P. 166] B

2012 SCMR 1027 SC UK, ref.

Binding Agreement--

----No specific and clear denial to claim--Paid sale tax amount of goods were admitted--Validity--Such admission and act of making payment of sale tax of goods received is indicative that appellant from its conduct, proved existence of binding agreement. [P. 168] C

Agreement--

----Conduct and attitude proved the whole transaction to be result of an agreed agreement--Payment of sale tax--Since it already established that on such acts, appellant not only received goods but also made payment of sale tax directly, hence confirmed that acts of defendant to have been done legal and had been done on its behalf in its name because it is matter of record that goods were supplied at place where appellant demanded. [P. 168] D

Broker--

----Definition--Either one would act as intermediary or negotiator, or it should have an authority from one to make bargains and contracts on one behalf--It is believed that respondent acted as an intermediary or negotiator, then no conclusion could be drawn that parties come to face to face, as was claim of plaintiff that transaction was confirmed. [P. 169] E

Agent--

----Action of an agent is binding upon principal when principal form its conduct and attitude confirmed the acts of such an agent--Act of ratification by appellant is sufficient to establish that act of respondent were held to be by appellant or on its behalf.

[P. 169] F & G

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

----S. 20--Jurisdiction of Civil Court--Suit for recovery--Business of purchasing raw cotton and after ginning and pressing sells same--Value of goods would be remitted paid to plaintiff through demand draft--Goods were delivered to agents--Place goods were sent--Juncture--Jurisdiction defect--Legal obligation--Validity--Such place was the place wherefrom most of part(s) of transaction were completed hence Courts below did not err while holding that cause of action accrued to plaintiff at such place at that juncture--Appellant will not be legally justified in denying its legal obligation only by taking cover of jurisdiction defect when it enjoyed completed opportunity to disprove claim of plaintiff--Appeal was dismissed. [Pp. 170 & 171] H & I

Mr. MuhammadIrfan Haroon, Advocate for Appellant.

Mr. MuhammadHashim Memon, Advocate for Respondents.

Date of hearing: 20.10.2014.

Order

Through instant 2nd Appeal the appellant has assailed the legality of judgment and decree dated 27.9.2012 passed by learned 2nd Additional District Judge, Sanghar in Civil Appeal No. 55 of 2004 “Re-M/s. Golden Textile Mills Ltd. v. M/s. Sun Shine Cotton Ginning & Pressing Factory, Khipro” whereby dismissing the appeal and in consequence thereof the judgment and decree dated 24.4.2004 and 29.4.2004, passed by learned trial Court (Senior Civil Judge, Khipro) in FC Suit No. 24 of 2001, were maintained.

1. Succinctly, facts are that Respondents/Plaintiffs Nos. 1 & 2 filed a suit against the appellant for recovery of Rs. 16,57,981/- wherein pleading that they are owner of Cotton Ginning and Pressing Factory at Khipro under the name and style 'Sun Shine Cotton Ginning and Pressing Factory'. The respondents/plaintiff deals in a business of purchasing raw cotton and then after ginning and pressing it in its factory, sells the same to customers interested therein. In first week of September, 2000 Appellant/Defendant No. 1 through Respondent/Defendant No. 2, a broker, approached the respondents/ plaintiff at Khipro and offered to purchase the pressed cotton bales for Appellant/Defendant No. 1. Respondent/Defendant No. 2, after examining quality of cotton, offered to purchase 200 bales of pressed cotton at the rate of Rs. 1850/- per Maund (7.3 KG) which offer was accepted by respondents/plaintiff through its Partner No. 1. Respondent/Defendant No. 2 then on telephone contacted Defendant No. 1 through its Chief Executive and apprised him of above contract entered into by him with plaintiff on their behalf. The Chief Executive of Defendant No. 1 then talked with Partner No. 1 of the plaintiff and confirmed the contract entered into by Respondent/Defendant No. 2 on behalf of appellant/defendant. The Chief Executive of Appellant/ Defendant No. 1 further asked Partner No. 1 of the respondents/ plaintiff that the transport for transacting purchased cotton bales to its destination at Bhai Pheru would be provided by Appellant/ Defendant No. 1 through Respondent/Defendant No. 2 and the respondents/plaintiff was to deliver the sold goods at Khipro to Appellant/Defendant No. 1 it was assured by Chief Executive of Appellant/Defendant No. 1 that on receiving the goods, the amount payable against Sale Tax and value of goods would be remitted/paid to respondents/plaintiff through demand Draft within month after such delivery of goods. The terms were accepted by the respondents/plaintiff through its Partner No. 1. It is further added that the Respondent/ Defendant No. 2 provided two trucks bearing Registration Nos. 9732/SGD and 7735/DNA through New Afzal Goods Transport Company Shahdadpur on 09.9.2000 and the respondents/plaintiff delivered 100 bales of pressed cotton at Khipro and Truck No. 1367/LX5 through people Goods Transport Company Shahdadpur on 11.9.200 and the respondents/plaintiff delivered 100 bales of pressed cotton at Khipro. Such delivery was evidenced by receipts issued by above stated transport companies. On receiving the goods, Appellant/Defendant No. 1, through its Chief Executive confirmed on telephone having received the goods and sent an amount of Rs. 248,697/- against Sales Tax through Demand Draft issued by bank Al-Habib Lahore in the name of plaintiff on 13.10.2000 which was received on 16.10.2000 and the plaintiff paid the same amount against sale tax by depositing the same in national Bank of Pakistan Mirpurkhas on same day i.e 16.10.2000. The plaintiff had sent both Invoices Nos. 10 and 11 dated 09.9.2000 and 11.9.2000, showing weight of sold goods i.e cotton bales to Defendant No. 1. The value/price of sold goods was Rs. 16,57,981/-. The Chief Executive of Defendant No. 1 had promised on telephone to remit the value of the sold goods to plaintiff at Khipro shortly. It is added that respondents/plaintiff awaited payment by Defendant No. 1 for a month but when no response was shown by it, the plaintiff through its Partner No. 1 contacted on telephone Chief Executive of the Defendant No. 1 and complained to him of negligence in making payment. The Chief Executive expressed regrets and assured plaintiff's partner that the payment would be made soon. Plaintiff through its Partner No. 1 had been reminding the Defendant No. 1 through its Chief Executive for payment of price due from Defendant No. 1 but found all promises fake and empty. The plaintiffs said partner also contacted Respondent/ Defendant No. 2 and complained about negligence of Defendant No. 1 in making payment of value of goods but to no effect. Respondents/ plaintiff lastly on 27.2.2001 sent a letter to the Appellant/Defendant No. 1 through TCS but same was not accepted by appellant/defendant and TCS returned the same undelivered with such reason for non-delivery. The respondents/ plaintiff claimed that Appellant/Defendant No. 1 turned dishonest and had no mind to makes payment. It was added that respondents/ plaintiff performed its contractual obligations in entirely and the purchased goods were also received by the Appellant/Defendant No. 1 hence respondents/plaintiff is entitled for price/value.

2. In such back ground the Plaintiff/Respondent No. 1 filed the instant suit for said relief (s):--

(a) Order the Defendant No. 1 to pay to the plaintiff an amount of Rs. 16,57,981/- being cost of goods (pressed cotton bales) If for any reason, Defendant No. 1 is not found liable, the Defendant No. 2 be ordered to pay to plaintiff the above stated amount;

(b) Award mark up at the Bank rate on above stated amount w.e.f 15.9.2000 or any other date as may be determined by Honourable Court, to the plaintiff till the above amount is finally paid;

(c) Award Costs of the suit to the plaintiff;

(d) Grant any other relief to plaintiff to which it may be found entitled under facts and circumstances of the case;

1. After service, the Appellant/Defendant No. 1 appeared and filed written statement while the Respondent/Defendant No. 2, after service, was declared exparte.

2. Out of the pleadings of the parties, the learned trial Court struck the following Issues:--

3. Whether the Defendant No. 1 is liable to pay price of cotton to plaintiff purchased by it through Defendant No. 2?

4. Whether payment made by Defendant No. 1 in shape of cotton yarn to Defendant No. 2 is valid payment of price of cotton of plaintiff?

5. Again what account Defendant No. 2 sent rupees 2,18,697/- to plaintiff through draft issues by Bank Al-Habib Lahore?

6. Whether the Chief Executive of Defendant No. 1 had assured partner of plaintiff for payment of rice of cotton through demand drafts within a month after receipt of cotton bales by Defendant No. 1?

7. Whether the payment of goods in commercial dealing is made in advance and never given on credit?

8. Whether the Defendant No. 1 is entitled to special costs?

9. Whether there was any business transaction, oral or written between plaintiff and Defendant No. 1 for purchase of ginned cotton?

10. Whether the Defendant No. 1 had supplied the cotton yarn to the Defendant No. 1 in lieu of ginned cotton arranged by Defendant No. 2?

11. Whether any payment of sales tax was made by Defendant No. 1 for purchase of ginned cotton?

12. Whether the Defendant No. 1 had paid the amount of ginned cotton in the shape of cotton yarn to Defendant No. 2?

13. Whether suit filed by plaintiff at Khipro is hit by Section 20, CPC and is not maintainable?

14. Whether the Defendant No. 2 had transacted with the plaintiff and is responsible to make payment of ginned cotton in the suit to the plaintiff?

15. Whether this Court has jurisdiction to hear this suit at Khipro?

16. What should the decree be?

17. The respective parties lead their evidence and at the end of the day the learned trial Court Judge decreed the suit of the respondents/plaintiff. Such Judgment and decree was assailed by Appellant/Defendant No. 1 through Civil Appeal No. 55 of 2004 who, having heard the respective parties, dismissed the appeal of the Appellant/Defendant No. 1.

18. Learned counsel, for the Appellant/Defendant No. 1, inter alia, argued that both judgments recorded by lower Courts are corum-non-judice; appellants/defendants were having office at Lahore therefore, suit filed at Khipro was not maintainable under the law; impugned judgments are of the result of misreading and non reading of evidence; both lower Courts failed to appreciate the evidence brought on record by the appellants hence instant revision is liable to be accepted. In support of his contentions, learned counsel has placed reliance on the cases reported as 1986 SCMR 310, 1990 CLC 919, 1997 MLD 2712, 2004 YLR 764, PLD 1969 Quetta 21 and PLD 1991 SC 780.

19. Learned counsel for the respondents/plaintiff argued that candidly there was no agreement between appellant and respondents but said goods were delivered to the agents of appellant same were received by them; scope of IInd Appeal is very limited; even erroneous findings recorded by inferior Courts cannot be disturbed in rcvisional jurisdiction; Section 168 of Contract Act provides that authority of agent can be impliedly. In support of his contentions, he has relied upon 2010 SCMR 1868, 2004 SCMR 877, 1981 SCMR 494, PLD 1993 SC 395, 1986 SCMR 1814, 2009 SCMR 254 and 1996 SCMR 1729.

20. Before going into merits of the case, in hand, I would like to examine the scope of the 2nd Appeal in the matter of concurrent findings of the two Courts below. The scope of the 2nd appeal also appears to be no at much variance with that of the revision because for succeeding in the 2nd appeal the appellant has to establish, prima facie, that decision was either contrary to law or substantial error or defect in the procedure was committed while deciding the matter. I am guided in my such view with the case laws, reported as:

In the case of Messers Anwar Textile Mills Limited v. Pakistan Telecommunication Company Limited and others 2013 SCMR 1570

“15. Thus, by reading of this provision, it is apparent that the High Court will be justified to interfere with the decision of the lower Courts when it is contrary to law or failed to determine material issue of law or commits substantial error or defect in the procedure, which may have resulted in error or defect in the decision of the case on merits.”

In the instant matter, two issue (s) require determination(s) to the effect:

(i) Whether there had been a concluded agreement between the parties?

(ii) Whether the act of the Respondent/Defendant No. 2 has any binding upon the Appellant/Defendant No. 1?

1. It would be germane mention that to constitute a concluded agreement it does not, always, depend upon the terms or writing but upon what the parties agreed. In absence of a writing it is the behavior and conduct of the parties which matter to reach to conclude whether there exists any concluded agreement or otherwise. Reference can be made to the case of RTS Flexible Systems Ltd. v. Molkerei Alois Muller GmbH and Co. KG 2012 SCMR 1027 SC UK.

“45. The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a pre-condition to a concluded and legally binding agreement.”

1. Let's examine what is the stand of the Appellant/ Defendant No. 1 in respect of the claim of the respondents/plaintiff with regard to 'agreement/contract'. The examination of the Appellant/ Defendant No. 1 would show that it was admitted:

(i) purchase of goods;

(ii) delivery thereof to the appellant/ Defendant No. 1 by the plaintiff/ respondents;

(iii) this was under some understanding and for consideration;

(iv) there had been admitted payment in favour of the plaintiff/respondent regarding sale tax amount of goods, supplied to Appellant/Defendant No. 1 by plaintiff/ Respondent No. 1.

All the above admitted facts are sufficient to hold that the plaintiff/respondents supplied the goods under some understanding and for some consideration, which, even the Appellant/Defendant No. 1 admits. Albeit, there had not been any written agreement between the parties but the parties i.e plaintiff and Defendant No. 1, from their conduct and attitude proved whole transaction to be a result of an agreed agreement (certain terms and conditions).

1. Further, the plaintiff/respondent had claimed categorically that the transaction, through Respondent/Defendant No. 2, was confirmed by the Chief Executive of the appellant/defendant on telephone. Against such claim of the plaintiff/respondent the witness, examined by Appellant/Defendant No. 1, stated in his cross-examination that:

“I do not know if Qasim Chief Executive of Defendant No. 1 had confirmed the purchase of cotton on telephone with Partner No. 1 of the plaintiff that they have received 200 bales of cotton from plaintiff.”

This shows that there is no specific and clear denial to such claim of the Plaintiff/Respondent No. 1. Even otherwise, this plea is of no help for the Appellant/Defendant No. 1 when he admits paying sale tax amount of the goods received directly to the Plaintiff/Defendant No. 1 while saying in his cross-examination that:

“It is fact that we had made payment of sale tax in respect of cotton bales purchased from plaintiff. I see Ex.63 and say that this demand draft was obtained by our Mill in favour of plaintiff.”

1. Thus, such admission and act of making payment of the sale tax of the goods received is indicative that the Appellant/ Defendant No. 1, from its conduct, also proved existence of a binding agreement. Thus, I am inclined to hold that there was a binding contract between the parties.

2. Regarding the Point No. ii, I may say that though the Appellant/Defendant No. 1 denied the status of the Respondent/ Defendant No. 2 to be their agent but claimed him to be a 'broker’. Worth to add here that since it was so claimed by the Appellant/ Defendant No. 1 hence the burden was upon it to have established so, particularly when the acts/commitments, made by the Respondent/ Defendant No. 2, were affirmed by the Appellant/Defendant No. 1. Some portions of the cross-examination of the Appellant/Defendant No. 1, being material to the issue, arc reproduced hereunder:--

(i) It is fact that broker purchase cotton from parties for us;

(ii) It is correct that the goods belong to parties the broker only work ……….facilitates the transactions. Broker gets his commission....the seller when transaction is completed.

(iii) It is fact that Muhammad Suleman broker had purchased cotton from the plaintiff for us;

Since, it already stood established that on such acts of the Respondent/ Defendant No. 2 the Appellant/Defendant No. 1 not only received the goods but also made payment of the sale tax directly in name of the respondent/plaintiff hence confirmed the acts of the Respondent/ Defendant No. 1 to have been done legal and have been done on its behalf/in its name because it is also matter of record that goods were supplied at the place where the Appellant/Defendant No. 1 demanded.

1. Be as it may, let the status of the Respondent/Defendant No. 2 to be taken as 'broker'. The term 'broker' has been defined by the Black's Law Dictionary as:

Broker.--1. An agent who acts as an intermediary or negotiator, esp. between prospective buyers and sellers; a person employed to make bargains and contracts between other persons in matters of trade, commerce, and navigation.

The term 'broker', defined above makes it clear that it is speaking that either one should act as an 'intermediary or negotiator' or it should have an authority from one to make bargains and contracts on one's behalf. Let's take the first definition first. If it is believed that the Respondent/Defendant No. 2 acted as an 'intermediary or negotiator' then no other conclusion could be drawn that both the parties i.e plaintiff and Defendant No. 1 came face to face, as was the claim of the respondent/plaintiff that transaction was confirmed by the Chief Executive of the Appellant/Defendant No. 1. In such eventuality the Appellant/Defendant No. 1 was rightly held liable to pay the amount as completion of transaction, otherwise, is not disputed.

Even if the second definition is taken for the instant case and it is believed that the Respondent/Defendant No. 2 acted on or in name of the Appellant/Defendant No. 1 which makes the Respondent/ Defendant No. 2 to be an 'agent' hence action of an agent is binding upon the principal particularly when the principal form its conduct and attitude confirmed the acts of such an agent. Thus, in either case(s), the position becomes quite obvious that agreement was rightly held to be concluded and binding one. The act of ratification by the Appellant/Defendant No. 1 is sufficient to establish that act of Respondent/Defendant No. 2 were rightly held to be by Appellant/ Defendant No. 1 or on its behalf. I am guided in such conclusion with the case, reported as PLD 2013 SC 641, wherein honourable Supreme Court held that;

One of the established essentials of ratification in law is that the purported agent must have been acting in the name of the purported principal, always having been representing himself as a lawful agent of the same (Sanaullah v. Muhammad Rafique 2003 CLC 138).

Thus, I am of the clear view that there is no illegality on part of both the lower Courts below in appreciating the factual controversies.

1. However, the appellant has been pressing hard the question of jurisdiction of the Court with reference to Section 20 of the Code. This aspect of the case was also properly appreciated by the learned Court (s) below within guidance of the Apex Court. The reading of the Section 20 of the Code would show that it is initially parted into two parts i.e:

(i) where defendant resides; or

(ii) cause of action arises;

The principles of interpretation make it clear that the use of the word 'or' does not diminish the value of the second part and both part carries equal weight and substance. In the instant matter it is not a matter of dispute that the transaction happened at Khipro; where Respondent/ Defendant No. 2 either on behalf of the Appellant/ Defendant No. 1 or in its name ordered the goods; from such place the goods were sent; at such place the bank wherefrom the respondent/ plaintiff got encashment of sale tax amount, sent by Appellant/ Defendant No. 1. Thus, such place was the place wherefrom most of the part(s) of transaction were completed hence the learned lower Court(s) below did not err while holding that cause of action accrued to the respondent/ plaintiff at such place at this juncture it would be conducive to refer the case of Muhammad Yasin and 2 others v. Ch. Muhammad Abdul Aziz (PLD 1993 Supreme Court 395), wherein apex Court has held that:

“The bundle of essential facts which comprises the cause of action in this case amongst other elements relating to Quetta, undoubtedly contains the most essential pivotal element of the supply of coal at Quetta from where it was to be dispatched to Faisalabad. The element of place of agreement also is relevant as an essential part of the bundle of facts. But the question of supply being very important in the context of entire circumstances of this case, the same is also a very essential fact. We, do agree with the learned counsel for the appellants that receipt of coal at Faisalabad is an important element in the transaction and the trial of the suit in that behalf but that also is one single element. It will also be treated as an essential fact amongst the other facts constituting bundle of essential facts, as forming the cause of action. Thus, a part of cause at least arose, at Quetta also.”

Even otherwise, the present appellant/plaintiff will not be legally justified in denying its legal obligation only by taking the cover of jurisdiction defect when it enjoyed complete opportunity to disprove the claim of the respondent/plaintiff.

1. In view of above discussion, I am of the firm view that the appellant has failed in pointing out any illegality in the judgment and decree (s) of both the Courts below hence the instant appeal is dismissed with no order as to costs.

(R.A.) Appeal dismissed

PLJ 2015 Karachi 171

Present: Salahuddin Panhwar, J.

Mst. SARWAT BANO through Attorney--Applicant

versus

PROVINCE OF SINDH through Member Board of Revenue Hyderabad and 5 others--Respondents

R.A. No. 206 and C.M.A. No. 953 of 2012, decided on 2.12.2014.

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

----O. XLI, R. 31--Scope--Contents, date and signature of judgment--Points for determination while deciding appeal--Divergent views on framing points for determination--Validity--There can be no cavil on proposition that purpose of framing points for determination is nothing but to ensure proper appraisal of material or legality of judgment, which cannot be expected in absence of points for determination--Appeal was continuity of lis where whole case becomes opens, therefore, mere use of phrase failure of pointing out an illegality would not serve purpose of Order XLI, Rule 31, CPC--If plea of Government was taken as true then that would be license for appellate Court to hold impugned judgment as legal or illegal only by mentioning that same was in accordance with law or not which, in no way could serve purpose and object of Order XLI, CPC rather it would frustrate whole scheme of legislature while putting such mandatory provisions of law in Court--Application was accepted. [P. 176] A, B & C

Mr.Karamullah Memon, Advocate for Applicant.

Mr. Anwar H.Ansari,State Counsel.

Mr.Jagdesh R. Mullani, Advocate for Respondent No. 6.

Date of hearing: 2.12.2014.

Order

Through instant civil revision application, applicant has challenged the judgment dated 30.05.2012, recorded by IInd Additional District Judge, Sanghar in Civil Appeal No. 12/2008, whereby learned appellate Court maintained the judgment passed by trial Court in F.C. Suit No. 16/2005 (Re-Mst. Sarwat Bano v Province of Sindh and others).

1. Succinctly, the facts of the case are that an agricultural land bearing Survey Nos. 512/1 to 4; 513/1 to 4; 514/1 to 4; 515/1 to 4; 516/1 to 4, total area 59-35 acres, situated in Deh Samerjo, Taluka Khipro, District Sanghar originally belonged to one Mst. Sodhi, mother of Respondent/Defendant No. 6, who sold the same to the applicant/plaintiff in the sum of Rs. 1,50,000/- by way of oral statement recorded before Mukhtiarkar Khipro in presence of witness Haji Ghulam Mustafa on 22.05.1988, for which the applicant had paid such mutation fee to the Respondent No. 4; resultantly the suit land was mutated in the revenue record of rights in the name of applicant vide mutation Entry No. 112 in village form XV. The applicant received possession of the suit land at the time of purchase from Mst. Sodhi and till this date he is in possession of the same and paying the revenue taxes to the government. The Respondent No. 6, son of said seller Mst. Sodhi, was well in knowledge of this sale transaction but in the month of January 2005 he became dishonest and moved an application before the Respondent No. 2, complaining therein that his mother has not sold out the suit land to the applicant and therefore, the Khatta of the suit land in the name of applicant be cancelled. The Respondent No. 2 is not having original jurisdiction but he is revising authority and the Respondent No. 6 maliciously moved the application directly to the Respondent No. 2. The Respondent No. 2 had called the applicant and had issued threats that in case applicant shall not hand over the possession of the suit land to the Respondent No. 6, the khata of applicant regarding suit land in the revenue record of rights shall be cancelled; that two days back prior to the institution of the suit, Respondent No. 6 with the help of 10/15 persons tried to dispossess the applicant from the suit land but did not succeed and went by issuing threats that the applicant shall be dispossessed from the suit land forcibly. Applicant prayed as under:--

“(a) To declare that the appellant/plaintiff is lawful owner of the suit land being purchaser of the same, and could retain its possession with her own rights, title, and interest and the claim of Respondent/Defendant No. 6 over the suit land is illegal, without lawful authority, null, void, abinitio, and not binding upon the appellant/plaintiff.

(b) To issue Permanent Injunction restraining the Respondent/Defendant No. 02 from entertaining the application of Respondent/Defendant No. 6, and the respondents/Defendants No. 4 and 5 be restrained from cancelling the khata of appellant/plaintiff in respect of suit land and further the Respondent/Defendant No. 6 be restrained from interfering with the peaceful possession of the appellant/plaintiff over the suit land by themselves, or through their agents, associates, attorneys, subordinates, helpers, men, supporters etc in any manner whatsoever”

1. Whereas, Respondent/Defendant No. 6, while filing written statement, denied the allegations and stated that his mother Mst. Sodhi did not sell out the suit land to the applicant nor the applicant is in possession of the suit land the applicant with the help of revenue authority got mutated the suit land illegally and unlawfully in his name in the revenue record of rights and further on coming in knowledge the Respondent No. 6 moved an application to Respondent No. 2 with a request to make enquiries regarding this illegal khata of applicant and thereafter, khata of Mst. Sodhi be corrected. Mst. Sodhi had mortgaged the suit land with Agricultural Development Bank of Pakistan Khipro branch on 28.06.1994 and had got loan vide loan No. 138435. He further stated that they had made default in payment of loan hence the ADBP referred this default case to the banking Court No. 1, Latifabad, Hyderabad where such decree has been passed in favour of ADBP Khipro branch in Suit No. 2989 of 1997, the suit land is now government property. The respondent filed his written statement at Ex.23 stating therein that as per Entry No. 96 dated 05.06.1965 the Respondent No. 6 had gifted out the suit land and other lands in all 104-16 acres to his mother Mst. Sodhi. He further stated that as per Entry No. 112 of register Dadhal Kharaj XV Book No. 883, said Mst. Sodhi sold the suit land by way of oral statement to the applicant and the applicant has to prove that Receipt No. 33 book No. 15878 amounting to Rs. 7000/- was actually issued in the year 1988 or not. The applicant is bona fide purchaser of the suit land then which circumstances compelled her father on 22.05.2005 to pay Rs. 2,20,000/- to Respondent No. 6 and his family. He also stated that the Respondent No. 6 has complained that fraud has been committed by the applicant in respect of land of his mother. Written statement was adopted by the Respondents No. 1 to 3 and 05.

2. Learned counsel for applicant, at the outset, contends that impugned judgment is against the mandatory provisions of Order XLI Rule 31, C.P.C., as learned appellate Judge has not referred a single piece of evidence brought on record by both parties and merely he has mentioned that since impugned judgment is in accordance with law, therefore, appeal was dismissed; thus, legal right of applicant has been seriously prejudiced; learned appellate Court has travelled beyond its jurisdiction.

3. Learned counsel for Respondent No. 6 while refuting above contentions, contends that there was no necessity to frame point for determination while maintaining the judgment passed by trial Court. In support of his contention, he has relied upon 2010 SCMR 1868 and 2006 SCMR 1185.

4. Learned State Counsel appearing for Respondents No. 1 to 4, at the outset contends that impugned judgment is in negation of Order XLI Rule 31, C.P.C., therefore, instant revision may be allowed and the case may be remanded for fresh decision.

5. While addressing the plea of learned counsel for applicant that there is mandatory requirement under Order XLI Rule 31, C.P.C. whereby the appellate Court shall frame points for determination while deciding the appeal. At this stage, it would be conducive to refer the relevant portion of impugned judgment, which is as under:--

“I have given due consideration to the arguments of learned counsel for the respective parties and carefully perused the record and proceedings. From perusal of record and proceedings of learned trial Court, it is matter of record that learned trial Court while discussing the evidence and documents available before him has not committed any illegality or irregularity. However, the learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned judgment. The impugned judgment passed by learned Senior Civil Judge is very explanatory and reasonably. The learned Senior Civil Judge during discussing the evidence brought on the record by the respective parties. The appellant has failed to prove any documentary evidence to prove her claim over the suit property. It is settled law that who/he come in Court burden lies upon him to prove his claim over the disputed property through oral as well as documentary evidence. In the present case the appellant has failed to prove her claim over the suit property. However, in appeal the learned counsel for the appellant has only argued that the grounds of the appeal be treated as an argument but he has failed to point out any infirmity in the impugned judgment that what illegality committed by the learned trial Court and what document which is in her favour has not disclosed by learned trial Court. On the other hand, the respondents have proved their claim over the suit land through oral as well as documentary evidence.”

1. While perusal of above, it would be conducive to refer the provision of Order XLI Rule 31 of the Code as learned counsel for the applicants had confined its arguments to such an extent The provision reads as under:--

“R.31. Contents, date and signature of Judgment. The judgment of the Appellate Court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time it is pronounced be signed and dated by the judge or by the judges concurring therein.

Bare perusal of above provision, it is suffice to say that the use of word 'shall' leaves nothing to doubt that such procedure is mandatory in nature hence the appellate Court, while writing the Judgment shall follow the prescribed procedure within its letter and spirit. The purpose of insisting of points for determination, seems to be nothing, but to have all legal and factual controversies, judicially determined which are agitated or come out from the judgment of lower Court. The reading of the sub-rules (b) and (c) of the said Rule further explains that judgment of the appellate Court has been confined to such framed points for determination hence proper framing of points of determination cannot be denied because in absence whereof there can be no purpose of sub-rules (b) and (c) of the said Rule, resulting in making a Judgment of appellate Court as not-sustainable under the law.

1. Further, it is manifest that learned appellate Judge has not discussed any single piece of evidence brought on record, whereas it is matter of record that trial Court has given findings on issues from page-87 to page-117 on many aspects while referring the documents brought on record by the parties. It is worth to add that there are divergent views on framing the points for determination but there can be no cavil on the proposition that purpose of framing the 'points for determination' is nothing but to ensure proper appraisal of the material or legality of judgment, impugned by appellate Court which cannot be expected in absence of 'points for determination' as it is the 'point of determination' the reason (s) whereof would compel the appellate Court to justify it conclusion with reference to point of determination. Worth to add here that appeal is the continuity of lis where whole case becomes opens therefore, mere use of phrase 'failure of pointing out an illegality' would not serve the purpose of Order XLI Rule 31, CPC. The scope of appeal is much broader than that of revision. The Judgment of appellate Court would not qualify the meaning of judgment where it (judgment) appears to be lacking in reasoning to its conclusion because the judgment of appellate Court can stamp the judgment of lower Court but with reasons while responding to grounds on which decree was attacked. However, it is the revisional jurisdiction which compels the revisional Court that it must examine whether illegality or irregularity or excess/non-exercise of jurisdiction caused prejudice to the applicant or otherwise. Here it is patent that appellate Court has crossed its limits and has not applied judicial mind. For the sake of arguments if the plea of learned counsel for Respondent No. 6 is taken as true then this would be license for appellate Courts to hold the impugned judgment as legal or illegal only by mentioning that same is in accordance with law or not which, in no way, could serve the purpose and object of Order XLI Rule 31 of the Code rather it would frustrate the whole scheme of legislature while putting such mandatory provisions of law in the Court.

2. In view of above, instant revision application is accepted. Case is remanded back to learned appellate Court for decision in accordance with law. It is made clear that appellate Court shall pass a fresh judgment in accordance with law while providing opportunity of hearing to both the parties, within two months of receipt of this order.

(R.A.) Application accepted

PLJ 2015 Karachi 177

Present: Salahuddin Panhwar, J.

Mst. ERUM--Appellant

versus

Mst. AMEENA and 5 others--Respondents

Misc. Appeal No. 9 of 2013, decided on 15.12.2014.

Service Benefits of Deceased--

----Succession certificate--Debts and securities/service benefits with power to collect--Tarka--Distribution among legal heirs--Group insurance of deceased employee--Benevolent fund amount of financial compensation regarding shahadat of deceased--Question of inheritance--Not form part of tarka--Validity--There can be no cavil to deny that legal heirs are entitled to inherit what deceased leaves behind him whether movable or immovable, including a right of claim which would be available for distribution among legal heirs as per their legal entitlement--Status of benevolent fund and group insurance to be not part of Tarka’--'Group insurance amount' to be part ofTarka' hence direction, given by lower Court, to applicant for distribution of group insurance among all legal heirs is entirely misconceived--There is no dispute that rights and claims of deceased which he had during his life time, but does not includes that it (Tarka) shall include any other amount which is given/paid by employer--Order to extent of other service benefits due, being in line with law, needs no interference--Entitlement of appellant/ opponent towards pay and allowances and avail of other benefits as specified by Government from time to time till age of superannuation of deceased constable is also maintained, however, with clarification that this shall continue till she does not marry meaning thereby continues as `widow' of deceased.

[Pp. 179, 180, 181, 182 & 184] A, B, C, D, E & F

Mr.Amjad Ali Sahito, Advocate for Appellant.

Mr. MuhammadAsif Shaikh, Advocate for Respondents Nos. 1 and 2.

Mr.Chaudhry Bashir Ahmed, Asstt. A.G. for Respondents Nos. 3 to 6.

Date of hearing: 9.12.2014.

Judgment

Through this Miscellaneous appeal, the appellant has challenged the legality of the order dated 31st October 2013 passed by IVth Additional District Judge, Hyderabad in Succession Application No. 173 of 2013 “Re-Mst. Ameena Vs Abdul Samad & Ors” whereby directing the Respondent No. 5 to withdraw all amount i.e benevolent fund, amount of compensation and other service benefits of deceased Rashid Rajput Chohan except Group Insurance amount which was already withdrawn by Appellant No. 1/Opponent No. 2; it was also directed to Appellant No. 1/opponent No. 2 to deposit group insurance amount with Respondent No. 5 for its, distribution among all legal heirs.

1. Succinctly, but relevant facts, for disposal of the instant Misc. appeal are that Respondent No. 1/applicant filed Succession petition for issuance of succession certificate in respect of debts and securities/service benefits with power to collect the same from concerned department.

2. It is further pleaded that deceased Rashid Rajput was working in Sindh Police as police constable; was killed(Shaheed) during snap-checking on 01.6.2012; through order No. SSC/1/12693 dated 13.6.2012 deceased was granted posthumous promotion to higher rank of Head constable with effect from 01.6.2012 in recognition of his bravery and gallantry act; AIG/Welfare for Inspector General of Police Sindh, Karachi also issued declaration order of Shaheed and granted financial benefits/compensation amounting to Rs. 20,00,000/- (two millions ) as per policy of Government vide Finance Department No. FD (SR III) 10(06)2006 dated 20.5.2009 alongwith pay and allowances and other benefits as specified by government from time to time till age of superannuation of above Shaheed. Deceased had left him surviving following persons as legal heirs:--

(i) Erum ………. widow (appellant/Respondent No. 2)

(ii) Minahil ………… daughter (minor)

(iii) Yesparar …….. daughter (minor)

(iv) Aisha ………… daughter (minor)

(v) Mst. Ameena .... Mother (Respondent No. 1/applicant)

(vi) Abdul Samad .... father (respondent/opponent No. 2)

1. On service of notice (s) the Appellant/Opponent No. 1 caused appearance and filed objections.

2. The learned lower Court Judge, having heard the parties, allowed the succession petition of the Respondent No. 1/applicant vide order, impugned through this Misc. appeal.

3. Learned counsel for the appellant has argued that there is much difference between assets of the deceased liable to be distributed among the legal heirs or those which, one (employer) grants as aid/ assistance which deceased was neither owning nor possessing therefore, order impugned is illegal and not sustainable. In support of his contentions, he has relied upon Federal Government of Pakistan v. Public at large (PLD 1991 SC 731).

4. On the other hand, the learned counsel for the Respondents Nos. 1 and 2 opposed the Misc. appeal while arguing that order of learned lower Court is legal, valid and proper and is based on proper interpretation of the judgment of honourable apex Court hence not open for interference and relied upon PLD 2013 Peshawar 1.

5. I have heard the respective sides and have gone through the available material.

6. At the very outset, I would like to add here that the status of the parties to be legal heirs of the deceased albeit, is not disputed but root question, involved in the matter, was always entitlement of the amount (s), including service benefits among them.

7. There can be no cavil to deny that the legal heirs are entitled to inherit what the deceased leaves behind him whether movable or immovable, including a right of claim which would be available for distribution among the legal heirs as per their legal entitlement. Let me be a little specific. Only what could be distributed among the legal heirs which the deceased was owning or possessing as owner and all other claims and rights which the deceased himself was entitled to make during his life time. It is always the left assets of the deceased which the legal heirs can distribute among them as per their legal entitlement. The the left assets of the deceased' has been termed asTARKA' which, no doubt, is inheritable by all the legal heirs as per their entitlement but this term would not include those things which would fall within meaning of concession'grant' or compensation' particularly when such things become due after death of the person. Another test to understand the difference betweenTARKA' liable to be distributed among legal heirs or `other dues’. is that:

as to whether deceased during his life time could have claimed the same?

OR

was the deceased entitled for the same at time of his death?

If the answer to above proposition is in 'affirmative' then such things would also form the part of the 'TARKA' liable to be distributed among the legal heirs but if the answer is in 'negation' then that would be liable to be given as per terms under which such 'concession' 'grant' or 'compensation' are directed to be disbursed. The claim or question of entitlement of the legal heirs would have no relevance for such amount.

1. It is pertinent to mention that one must always keep in mind another difference between 'TARKA' and those falling within meaning of 'concession' 'grant' or 'compensation'. The former is the absolute property of the deceased therefore, the same shall be governed by law of inheritance of the deceased while the later was/is not the property of the deceased but it was by one (employer e.t.c) after death of the person hence if the person, (giver) wants it to be given only to one out of hundred legal heirs of the deceased, the other would not be legally justified to object the same because such 'concession' 'grant' or 'compensation' is to be dealt as per wishes of the giver. Thus it could be the giver (employer e.t.c) who is the chooser for entitlement of the amount being given by him(employer e.t.c).

2. Regarding the status of the 'group insurance' of a deceased employee the law stood clear that this being falling out of scope of 'TARKA’ hence would not be available for its distribution among the legal heirs but would be dealt as per relevant rules and procedure, so framed by the employer (government) for such purpose.

3. I have gone through the case laws, referred by the learned lower Court including one, reported as 2005 SCMR 512 wherein 'amount of benevolent fund and Group Insurance' was held to be part of 'TARKA”. Without prejudice to the binding effect of decision of honourable Supreme Court of Pakistan, I would state that in this Judgment the honourable Supreme Court referred to the landmark case of Wafaqi Hakomat-e-Pakistan v. Awamunas(PLD 1991 SC 731) and at no place disagreed with the same. It is always to be kept in mind that in said judgment (,PLD 1991 SC 731) the 'Benevolent & Group Insurance amount' were held to be not part of 'TARKA' and since the judgment (2005 SCMR 512), nowhere, disagreed nor declared the decision of judgment (PLD 1991 SC 731) to be not legal hence the differing conclusion, being with reference to said judgment was already discussed by this Court IN THE MATTER OF SUCCESSION OF THE ASSETS, SECURITIES, PROPERTIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNAVI reported as, PLD 2010 Karachi 512 that:

4. In the case reported in 2005 SCMR 512 the Division Bench of the Honourable Supreme Court while recognizing the principle laid down by the five member bench of the Shariat Appellate Bench of the Supreme Court in the case of Federal Government of Pakistan v. Public at large report in PLD 1991 SC 731, mistakenly interpreted it conversely which appears to be typographical error as service benefits granted towards Benevolent fund or Group Insurance were not treated as heritable benefits in terms of the principle laid down in PLD 1991 SC 731.

(underlining has been applied for emphasis).

1. At this juncture, it would be worth to add here that 'Benevolent fund & Group Insurance’ amount were held as not part of 'TARKA” and the case law (PLD 1991 SC 731) is continuing holding the field and is being followed thus the binding effect thereof within meaning of Article 189 of the Constitution has to be given due regard. Further, the status of Benevolent fund and Group Insurance to be not part of 'TARKA' was confirmed IN THE MATTER OF SUCCESSION OF THE ASSETS, SECURITIES, PROPERTIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNAVI reported as PLD 2010 Karachi 512 that:

2. Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remains unpaid during his lifetime when the same becomes heritable and is to be distributed amongst all his heirs. However, a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer, then whatever amount that become pay able after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service. It is the discretion of the employer to make rules and regulations in relation to any grant or concession that is intended to give to an employee and after his death to any member of his family.

3. Thus benefits such as special retirement benefits, special compensation group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grant and concession on the part of employee and payable after the death of employee cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulation of service provided by, the employer.

In the case of Muhammad Naseem Ahmed(PLD 2014 SINDH 290), it is held as under:--

1. The word which is used for the estate left behind by the deceased and which is distributable among his legal heirs as per their respective shares, is “TARKA”. In the case reported as Wafaqi Hukumat Pakistan s. public at large PLD 1991 SC 731) “Tarka” has been defined as 'maal' (property) which not only includes 'property' but also right to property. It has further been explained that right to property means a property which is due to the deceased from any other person and which, though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his life time. Thus, in Tarka all movable and immovable properties owned and possessed by the deceased at the time of his death and also those sums which are due to the deceased from any other person are included.

In the case of Miss Riffat Yaseen (2014 CLC 126), it is held as under:--

General Provident Fund, leave salary, leave encashment and gratuity would fall in TARKA while group insurance, financial assistance and benevolent fund are not falling in TARKA (as same are grant of concession)

1. In view of above discussion, I am of the clear view that the learned lower Court wrongly held the group insurance amount' to be part ofTARKA' hence direction, given by lower Court, to applicant for distribution of the group insurance among all legal heirs is entirely misconceived.

2. I have also gone through the case law, reported as PLD 2013 Peshwer-1 wherein while following the principle, so decided in the case of PLD 1991 SC 731, it was held that 'compensation package comes within the definition of TARKA'. In this regard, it would be pertinent to mention here that above case is not applicable in Province of Sindh as according to Notification by K.P.K. Government that amount was payable to legal heirs, which patently reflects from the relevant portion of above judgment:--

“4. Applying above test on the facts of instant case we are persuaded to hold that the compensation package comes within the definition of Tarka, and after the death of Shaheed his legacy has to be devolved amongst the Quranic legal heirs.

1. In the opening para of notification dated 22.2.2011 it is declared that this uniform compensation package is for the “legal heirs” of:--

(a) Provincial Police Personnel

And

(b) All the civil servants of the Provincial Government.

1. In Para No. 6 of the above notification it is stated “for the purpose of this notification the terms “legal heirs” shall have the same meaning as in the Pension Rules of Government of Khyber Pakhtunkhwa. The term legal heirs has not been defined any where to the Pension Rules. Only the term “family” has been defined in Rule 4.7. This term “family” is definitely and absolutely different from the terms of the legal heirs of the deceased, who are entitled to get their shares as laid down in Sura Nisa of Holy Quran.”

(underlining is supplied for emphasis).

1. Whereas Notification No. FD (SRIII) 10 (06)/2006 issued by Government of Sindh reflects that compensation to the Shaheed officers/officials of Sindh Police is payable to the family, further it is specified in S.O.P regarding SHAHEED DECLARATION AND PAYMENT OF COMPENSATION in following manner:--

“(i) First right of financial compensation is for widow of Shaheed Police Personnel if he is married.

(ii) In case of more than one widows amount will be equally distributed irrespective of number of Children or period of marriage.

(iii) In case of death or divorce of wife of Shaheed before Shahadat, the compensation will be paid to the parents or legal guardians of the kids, whosoever is available.

(iv) If Shaheed is not married, compensation will be paid to father or mother whosoever is alive and to father if both are alive.”

Thus, there is no dispute that the rights and claims of the deceased which he had during his life time, but does not includes that it (TARKA) shall include any other amount which is given/paid by the employer. Here one thing is also needs to be clarified that 'compensation’, if being paid for Qatl-e-Amd or Qatl-e-Khata of the deceased by the guilty (accused) it would be heritable by all legal heirs, but if an amount, under whatever name it may be, is being given by employer (e.t.c.) it shall not be equated to that of 'Diyat/compensation'. We cannot confine the wishes of a person (employer) to help the deceased's family in the manner he wishes nor we can put a restriction on the right of the choice 'giver' because it is the discretion of 'giver’ to choose best person out of the legal heirs of the deceased as 'fit person'.

1. In view of above discussion, I am of the clear view that order of the learned lower Court is not based on proper appraisal of the settled law hence needs to be interfered. The benevolent fund, amount of financial compensation regarding Shahadat of deceased (Shaheed) Constable Rashid Rajput and Group Insurance shall be dealt with strictly in accordance with service rules as discussed above without being influenced with question of inheritance as these shall not form part of the TARKA' of the deceased. The Appellant/Opponent No. 2 is not liable to distribute the amount of Group Insurance which she has already received from the department. Further, appellant is also entitled to receive the compensation payable under the scheme provided to Shaheed officials. However, order of the learned lower Court to extent of other service benefits due, being in line with law, needs no interference. Accordingly, Accountant District Court, Hyderabad shall continue, with authority to withdraw such amount and to ensure proper distribution of same among all legal heirs. He would invest the amount of share of minors legal heirs in some government profitable schemes. The entitlement of the appellant/opponent towards Pay and allowances and avail of other benefits as specified by the Government from time to time till the age of superannuation of deceased constable Rashid Rajput is also maintained, however, with clarification that this shall continue till she does not marry meaning thereby continues aswidow' of deceased.

2. The appeal is accordingly disposed of in above terms. Facsimile copy of instant order shall be sent to the relevant quarters for compliance.

(R.A.) Appeal disposed of

PLJ 2015 Karachi 185

Present: Salahuddin Panhwar, J.

Mst. BHAGUL (deceased) through L.Rs. and 8 others--Appellants

versus

ABDULLAH and 7 others--Respondents

Second Appeal No. 3 of 2007, decided on 10.11.2014.

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

----O. XLI, R. 24--Framing of issues was not mere formality--Question of fact or law--Discretion to appellate Court to frame points for determination—Validity--Resettling of issues at appellate stage cannot be equated with discussing already framed issues by causing change in such issue without notice to parties or reference to sale.

[P. 189] A

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

----O. XLI, R. 25--Framing of issue--Appellate Court--Order 41, Rule 25 of CPC does permit appellate Court to frame issue but such course would require appellate Courte to refer matter to trial Court for taking additional evidence and findings. [P. 189] B

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

----O. XLI, R. 31--Re-framing issues--Discretion of appellate Court--Jurisdiction--After framing of issues, if parties agreed to legality of already led evidence, then Court shall proceed accordingly else trial Court shall proceed as per procedure. [P. 189] C

Mr.Arbab Ali Hakro, Advocate for Appellants.

M/s.Sundardas & Muhammad Mansoor Mir, Advocate for Respondents.

Mr. Ashfaque Nabi Kazi, Asstt. A.G. for State.

Date of hearing: 10.11.2014.

Order

Through instant 2nd Appeal the appellants have assailed the judgment and decree dated 14the December, 2006 and 20th December, 2006 respectively passed by Additional District, Shahdadpur whereby appeal of Respondent No. 1 was allowed and in consequence thereof judgment and decree dated 08.01.2006 and 03.02.2006 respectively recorded by trial Court Judge in FC, Suit No. 85/1998 “Re-Abdullah v. Mst. Bhagui were set-aside.

1. A brief reference of the facts is that Plaintiff/Respondent No. 1 filed the suit for `Declaration, Specific Performance of Contract & Permanent Injunction' whereby he claimed to have purchased the suit, land through written sale agreement-dated 23.12.1997 from Defendant No. 1/appellant for total sale consideration of Rs. 30,00,000/- (Thirty lacs); out of that Rs. 27,28,500/- were paid while remaining amount was to be paid on 28.11.1998 before Sub-Registrar. It is further case of Plaintiff/Respondent No. 1 that Defendants No. 2 and 3 were leased out the land through registered deed by Appellant/ Defendant No. 1 who attempted to take possession from Plaintiff/ Respondent No. 1; it was also alleged that during pendency of suit Defendant No. 1/appellant made gift in favour of minor Defendants/ Respondents No. 4 to 9.

2. The defendants, including appellants contested the matter and filed written statement.

3. Out of the pleadings of the parties, the learned trial Court framed the following Issues:--

4. Whether Defendant No. 1 not entered into sale agreement of suit land with the plaintiff?

5. Whether the total sale consideration, amount i.e. Rs. 30,00,000/- and plaintiff paid Rs. 27,28,500/- to Defendant No. 1?

6. Whether Defendant No. 1 has failed to perform his part of contract?

7. Whether Defendant No. 1 leased out registered agreement to Defendant No. 2 and 3 is illegal & void, who is in possession of suit land?

8. Whether suit land was gifted in favour of Defendants No. 4 to 9 and Defendant No. 10 transferred during the pendency of present suit?

9. Whether plaintiff has no cause of action to file present suit?

10. Whether plaintiff is entitled for the relief claimed?

11. What should the decree be?

12. The respective parties lead their evidence and at culmination of trial, the learned trial Court Judge dismissed the suit of the plaintiff. Such Judgment and decree was assailed by Respondent No. 1/plaintiff in Civil Appeal No. 5/2006 which was made over to the Addl. District Judge, Shahdadpur who, having heard the respective parties, allowed the appeal of the Respondent No. 1/plaintiff.

13. During hearing of instant appeal, this Court invited the counsel for respective parties towards the issue (s) framed by the learned trial Court Judge in particularly the Issue No. 1, which was framed as:

Whether Defendant No. 1 not entered into sale agreement of suit land with the plaintiff?

and manner in which the learned trial Court Judge appreciated and discussed the same. At the same time the counsel were also made aware of the fact that learned appellate Court discussed the Issue No. 1 but worded it as:

Whether Defendant No. 1 got [not] entered into sale agreement of suit land with the plaintiff?

Counsel for the respective parties, on having been put on notice, agreed that matter requires to be remanded to the learned trial Court for appraisal and discussion on the Issue (s) in particularly on Issue No. 1.

1. On having come across with such a position, significant to add here that framing of the Issues is not a mere formality but it is the stage through which the Court has to bring all the controversies between parties in shape of questions whereby putting parties onto specific and clear notice of their liabilities to discharge their respective burden. It should not be the whims and wishes of the parties in formation of Issues but it should be formed in such words that it must not only give a complete notice to parties that on whom the burden would rest and it should also decide a material disputed question of fact or law. The Order 14(3) of the Code, being material, is reproduced hereunder:

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

1. It is germane to state that Civil Procedure Code does not explain as to whom the burden would rest but the Court (s) should always be conscious that it is the Qanun-e-Shahdat Order, 1984 which provides a complete mechanism in this respect per Part-III Chapter-IX under title `of the Burden of Proof’. This Chapter starts with Article 117 which reads as:--

2. Burden of proof.--(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person;

The Article 118 further explains that:

1. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

The above article(s) are very much clear in explaining that on whom the onus of proof would rest in respect of a particular question of law and fact. This legal position was entirely ignored by the learned trial Court Judge while framing the Issue No. 1 and responding the same. For clarity the issue and opening of discussion is reproduced hereunder:--

Whether the Defendant No. 1 not entered into sale agreement of suit land with the plaintiff?

Issue No. 1.

“Burden of this issue lies upon the Defendant No. 1 to prove it....”

1. Since it was the plaintiff who was insisting the Court to believe that it was the Defendant No. 1 who entered into a sale agreement with him (plaintiff) hence the burden to prove this issue should have been upon the plaintiff and not upon the Defendant No. 1. The learned trial Court Judge appears to have been stuck in 'wording' (negative formation of issue) which, in no way, would change the legal position with regard to 'burden of proof upon party who asserts a particular fact and insists the Court to give judgment thereon'. Thus, such approach on part of the learned trial Court Judge cannot be approved particularly when this may result in letting a party to come with a plea that he/she way not on proper notice regarding 'burden of proof.’

2. Having said so, it would be pertinent to examine the mistake, committed by the learned appellate Court while responding the Issue No. 1, framed by the learned trial Court Judge. The appellate Court has no legal right to discuss the 'issues', framed by trial Court by bringing any change thereon. The Appellate Court can competently pass judgment which should be within spirit of Rule 31 of Order XLI which consists on:--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled

The above provision does give the discretion to the appellate Court to `frame points for determination' but the Code, no where, permits the appellate Court to bring change in framed issues while discussing the same at appellate stage. Per Rule 24 of the Order XLI of the Code the appellate Court may resettle the issue(s) but resettling of the issues at appellate stage cannot be equated with discussing the already framed issues by causing change in such issues without notice to parties or reference to relevant rule. The Rule 25 of the Order XLI of the Code does permit the appellate Court to frame issue (s) but such course would require the appellate Court to refer the matter to trial Court for taking additional evidence and findings thereon. This is so for simple reason that 'issues' always require parties an opportunity of hearing and leading their respective evidence in proof or disproof thereof.

1. The learned appellate Court discussed the Issue No. 1 by substituting the word 'not' with 'got' which materially changed the meaning thereof. This course, so adopted by the learned appellate Court, also is not within prescribed procedure hence the same cannot be approved as the law is clear on the principle that 'things should be done as demanded by the procedure and not otherwise'.

2. In view of above position, it is manifest that both the Court (s) below have not exercised the jurisdiction vested in them properly. Therefore, it would be in all fairness to remand the case back to learned trial Court for re-framing the Issue (s) strictly in accordance with law and to decide the same on merit. After framing of the Issues, if the parties agreed to legality of the already led evidence, then the Court shall proceed accordingly else the trial Court shall proceed as per procedure. While parting, I would like to add that since matter pertains to year 1998 therefore, the learned trial Court Judge shall decide the matter expeditiously preferably within a period of three (03) months and no adjournment be allowed except on genuine ground. The parties are also expected to extend their cooperation for such purpose.

These are the reasons of the short order dated 28.10.2014 whereby appeal was disposed of.

(R.A.) Appeal disposed of

PLJ 2015 Karachi 190 (DB)

Present: Muhammad AliMazhar and Naimatullah Phulpoto, JJ.

ZEESHAN MUSTAFA LASHARI and another--Petitioners

versus

PROVINCE OF SINDH through the Chief Secretary,Sindh, Karachi and others--Respondents

C.P. No. D-5158 of 2014, decided on 24.11.2014.

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

----Ss. 169, 170 & 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Reinvestigation-Essential for re-investigation after submission of challan--No power to C.M. to issue direction for reinvestigation--Police cannot adjudicate guilt or innocence of offender--Question of--Whether person is guilt or not rests with Court of law and not with police--Fair and impartial investigation--Jurisdiction and authority to pass order for reinvestigation--Validity--If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential FIR cannot be cancelled nor the accused can be discharged--Guilt or innocence of the accused can only be determined by the Court. [Pp. 195 & 196] A

Police Order, 2002--

----S. 18(6)--Constitution of Pakistan, 1973, Art. 199--Reinvestigation--Change of investigation--Recommendations of board--Validity--Investigation would not be changed except after due deliberations and recommendation by a board headed by an officer not below the rank of SSP. [P. 197] B

Investigation--

----Change of investigation--Final order for changing of investigation--Second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer. [P. 197] C

Re-investigation--

----Essential--Reinvestigation would be ordered denovo in routine--Validity--Reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation. [P. 198] D

Investigation--

----Defect in investigation or challan--Non-allowance of reinvestigation--Validity--It is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all accused will be afforded ample opportunity to defend the indictment--Non-allowance of reinvestigation does not mean the deprivation of the right of fair trial of the accused persons. [P. 198] E

Re-investigation--

----Victim of reinvestigation--Deteriorate criminal administration of justice--Validity--Exercise of jurisdiction of passing orders for reinvestigation would not be taken so casually, callously and or offhandedly at the whims or aspiration. [P. 198] F

Mr. FaisalSiddiqui, Advocate for Petitioners.

Mr. AbdulRazak,Advocate for Respondents Nos. 5 & 6.

Mr. MustafaMahesar, AAG.

Mr.Shahzado Saleem, APG.

Mr. Mazhar Hussain Alvi, ADIGP (Legal) Karachi.

S.I. (Legal) Tariq Jawed Bhatti and I.O. Inspector Muhammad Mubeen, P.S. Darakhshan, Karachi.

Date of hearing: 30.10.2014.

Order

Muhammad Ali Mazhar, J.--This constitutional petition is brought to challenge the impugned order dated 10.9.2014 issued by AIGP/Operation for and on behalf of Inspector General, Sindh Police whereby a committee was constituted for the re-investigation of Crime No. 235/2014, lodged at P.S.Darakhshan South Zone, Karachi under Sections 302, 324 and 34, PPC read with Section 7 of Anti-Terrorism Act, 1997.

1. The brief facts of the case as narrated in the memo of petition are that the brother of Petitioner No. 1 and son of Petitioner No. 2 was murdered by Respondent No. 5 and his police guards on 8.5.2014. The Petitioner No. 1 lodged the FIR No. 235/2014 at P.S. Darakshan, Karachi on same date against Respondent No. 5 and others. Pursuant to the FIR, the I.O. submitted the charge-sheet No. 181/2014 on 11.6.2014 in the trial Court which was accepted on 16.6.2014. The Respondent No. 5 moved an application in the trial Court under Section 7 of Juvenile Justice System Ordinance, 2000 and vide order dated 30.6.2014 the Respondent No. 5 was declared juvenile and his case was separated for trial. He moved one more application under Section 23 of Anti-Terrorism Act, 1997 for the transfer of the case to the ordinary Court for trial, which was dismissed vide order dated 2.9.2014. Before submission of the charge-sheet the Petitioner No. 2 filed a Constitutional Petition No. 2667/2014 in this Court which was disposed of vide order dated 21.5.2014 with the following directions:

“After hearing all the learned counsel for the respective parties, Mr.Ali Sher Jakhrani DIG Police (Legal), Karachi makes a categorical statement before this Court that the investigation of the incident would be carried out in a very transparent, impartial and legal manner and it would be a test case for the Police Department and the Inspector General of Police will ensure that the Investigating Officer of the case is not influenced from anyone including the father of the alleged assailant. This statement satisfies the learned counsel for the petitioner, who seeks disposal of this petition in the above terms. Order accordingly. This petition stands disposed of in the above terms.”

1. It is also a matter of record that the Respondent No. 5 filed a Criminal Misc. Application No. 211/2014 in this Court with the grievance that the I.O. has concealed vital piece of evidence so he prayed for reinvestigation of the case. However, on 12.9.2014 the Criminal misc. was dismissed as withdrawn.

2. The learned counsel for the petitioners argued that the impugned order does not reflect any convincing reason as to why re-investigation is essential after submission of report under Section 173 Cr.P.C in the trial Court. The Respondent No. 5 though filed a criminal misc. application for reinvestigation, but it was withdrawn unconditionally. The challan has already been submitted and the matter is fixed for framing of charge. The impugned order has been issued to subvert and trigger interference in the fair trial with an obvious reason that the Respondent No. 5 is son of an influential police officer of Sindh Police. He further argued that the impugned order is without jurisdiction, illegal and has no legal effect. He also referred to the parawise comments filed on behalf of Respondent No. 3 (Inspector General of Police Sindh) in which it is clearly stated that the Respondent No. 5 has moved an application to the Chief Minister Sindh in which he requested for reinvestigation of the matter and in compliance of the order of the Chief Minister, a team has been constituted for reinvestigation vide impugned order. Learned counsel for the petitioners further argued that the Chief Minister has no powers under the Sindh Government Rules of Business or otherwise to issue any directions to the I.G. Police for reinvestigation of any matter and on this notch also the impugned order is liable to be set-aside. According to the Entry No. 14 of Schedule-I of the Sindh Government Rules of Business, 1986, the Secretariat Department of Police is Home Department while its head is the I.G. of Police. Learned counsel for the petitioners relied upon the case of Riaz Hussain v. State, reported in 1986 SCMR 1934 in which the apex Court held that the System of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favorable reports obtained. This in no way assists Courts in coming to a correct conclusion. It rather creates more complications to the Court administering justice. In the case of Muhammad Nasir Cheema v. Mazhar Javaid reported in PLD 2007 S.C. 31, the apex Court held that no power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the Court desired or only with respect to such offences as the Court wished. It was further held that the report under Section 173, Cr.P.C., had already reached to the trial Court where the trial has already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.

3. Mr.Abdul Razak, learned counsel for the Respondent Nos. 5 & 6 argued that the Respondent No. 5 has been falsely implicated in the case. The investigation was not properly carried out by the I.O. The alleged crime was committed inside the bungalow while the accused received firearm injuries at his back side while he was sitting at the driving seat of his vehicle parked outside the main gate. Challan does not carry particulars of inquest report of the deceased Suleman Lashari and P.C. Zaheer Ahmed Rind. The investigation conducted by the I.O. was mala fide and dishonest. According to post mortem report one S.M.G. bullet was recovered from the body of deceased Suleman Lashari, while in the FSL report one steel core of crime bullet was shown. The Respondent No. 5 arrived at the main gate of bungalow of the complainant and immediately his vehicle was ambushed and on his vehicle “Vigo” various bullets were fired from upper and back side resultantly the accused had received bullet injuries and P.S. Zaheer Ahmed Rind had died. He further argued that criminal misc. application was not dismissed on merits but the I.G. Police had passed an order for re-investigation on 10.9.2014, therefore, the application was withdrawn on 12.9.2014. It was further contended that the I.O. has concealed material piece of evidence therefore, the re-investigation in this case is a fundamental right of the accused in terms of Article 10-A of the Constitution. It was further contended that while accepting the challan, the learned trial Court did not apply its mind properly. He referred to the case of Bahadur Khan v. Muhammad Azam, reported in 2006 SCMR 373 in which the hon’ble Supreme Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence on which the accused had been tried and the case was finally decided up to the level of the High Court or Supreme Court.

4. The learned AAG argued that Chief Minister has only passed the order that the reinvestigation may be conducted. He further argued that nothing has been placed on the record by the Respondent Nos. 5 and 6 to show that on what basis the reinvestigation was required to be carried out while the learned APG opposed the order of the reinvestigation on the premise that the Chief Minister has no power to order any reinvestigation and the AIG who issued the reinvestigation order has completely failed to mention any reason in which the reinvestigation is required in this case. The I.O. Muhammad Mubeen stated that the entire investigation was carried out independently and honestly. The identification parade was conducted by the Judicial Magistrate. The eyewitness identified the accused. Empties were also recovered from the place of incident and FSL examination was also conducted. One bullet of SMG was recovered from the dead body of Suleman Lashari while one bullet was passed through his body. No application was made for reinvestigation to the I.O. The challan has already been submitted and the matter is fixed for framing of charge.

5. Heard the arguments. All the learned counsel for the parties had mutually agreed the disposal of this petition at katcha peshi stage and they argued their case extensively. The crux of Section 169, 170 and 173, Cr.P.C. is that the I.O. has to submit the final report with regard to the result of his investigation for taking cognizance or passing order under Section 173. The police cannot adjudicate the guilt or innocence of the offender because it is not their duty to decide which party is wrong or right. The investigation is required to be completed without unnecessary delay or impediment and as soon as it is complete the challan is required to be submitted not later than 14 days. Ultimate decision as to whether a person is guilty or not rests with the Court of law and not with the police. Since the Petitioner No. 2 had an apprehension that a fair and impartial investigation would not be conducted due to influence of Respondent No. 6 therefore, he filed C.P. No. D-2667/2014 in this Court which was disposed of in view of the statement of AIG Police (Legal) who assured that the investigation would be carried out in a transparent, impartial and legal manner. On the other hand, the Respondent No. 5 had filed Criminal Misc. Application for the reinvestigation of the Crime No. 235/2014, however, his criminal misc. application was withdrawn on 12.9.2014. The Respondent No. 5 written a letter to the Chief Minister Sindh on 15.8.2014 requesting reinvestigation of the case by an honest, reputable and intelligent joint investigation team headed by senior officer of the department. The AIGP (Legal) submitted comments on behalf of I.G. Police and also attached a copy of letter dated 25.8.2014 communicated by Deputy Secretary, Chief Minister's Secretariat, Sindh Karachi to the I.G. Police with the direction of the Chief Minister which is reproduced as under:--

“May be re-investigated through some independent Senior Officer

Sd/- 23-08-2014 Chief Minister, Sindh”

1. While the Respondent No. 4 in his comments stated that the I.G. Police Sindh has jurisdiction and authority under law to pass the order for reinvestigation of a matter in order to reach just and correct conclusion. On the contrary, in the comments filed on behalf of I.G. it is stated that the order for reinvestigation was made to comply with the order of the Chief Minister Sindh, so that fair trial in view of Article 10-A of the Constitution of Pakistan, 1973 may be made. Nothing is transpiring from the impugned order or the comments to demonstrate us whether reinvestigation is required by the police department to unearth the truth because earlier investigation was found defective and not good enough due to visible and seeming lapses on the part of Investigating Officer. We are also fortified by the dictum laid down by the hon’ble Supreme Court in the cases of Riaz Hussain & Muhammad Nasir Cheema (supra) that the system of reinvestigation is a recent innovation which is always taken up at instance of influential people and favorable reports are obtained. This in no way assists Courts in coming to a correct conclusion. Where the trial has already commenced, changing the investigation or ordering further investigation is an exercise unsustainable in law.

2. Nothing is reflecting to us from the impugned order to decipher that while ordering reinvestigation any independent mind was applied to decide whether the reinvestigation is necessary or not? Whether the I.O. in the earlier investigation ignored or failed to collect material piece of evidence. The trend of directing fresh investigation after submission of challan and taking cognizance is neither warranted nor approved. If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential because the FIR cannot be cancelled nor the accused can be discharged after taking cognizance of the case by the trial Court and the question of guilt or innocence of the accused can only be determined by the Court alone and none else.

3. The learned counsel for the Respondent No. 5 referred to the case of Bahadur Khan (supra) in which the apex Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but in this very judgment the case of Riaz Hussain (supra) was also quoted in which the system of reinvestigation was considered to be a recent innovation taken up at the instance of influential people. In the case of Muhammad Yousaf v. State reported in 2000 SCMR 453, son of the petitioner died in police custody. His death was caused due to torture by police and the petitioner got registered a case against police officials responsible for the offence, but the investigation agency was not submitting challan in the trial Court under Section 302. The apex Court held that no legal bar exists on reinvestigation of a case even after submission of final report under Section 173, Cr.P.C. and police could carry out fresh investigation and submit its report to the Court. Consequently, the hon'ble Supreme Court directed the investigation agency to complete reinvestigation and submits its report to the trial Court within a period of four wreeks. At this juncture, we would like to quote the case reported in PLD 1965 (W.P) Lahore 734 (Atta Muhammad v. Inspector General of Police, West Pakistan Lahore & others). In which the learned Court 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 may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, the corrupt behavior of the police officers 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 inadvertence, 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 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 fact 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 has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late.”

1. A visit to the precedents quoted above and the law expounded therein unequivocally shows that the reinvestigation may be conducted by the police in peculiar circumstances of the case and this can also be directed by the superior Courts but not at the instance of influential people to obtain favorable reports which may create complications to the Court, while administering justice. One more significant facet which we cannot ignore at this echelon is Section 18 of the Police Order, 2002 which was relevant to the posting of head of investigation in which under sub-section (6) it was provided that investigation shall not be changed except after due deliberations and recommendation 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. The first proviso attached to this section enumerated that final order for the change of investigation shall be passed by the head of investigation in the general police area who shall record reasons for change of such investigation. One more proviso was also attached that the second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer as the case may be. At this point in time, it is necessary to point out that Police Order, 2002 to the extent of its application to the Province of Sindh was repealed on 15.7.2011 by Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act 1861) Act, 2011, which means that from the date of aforesaid repeal, Police Order, 2002 is not applicable to the Province of Sindh.

2. Notwithstanding the repeal of Police Order, 2002, there is no absolute bar in Cr.P.C. which debars the I.O. from submitting fresh report in supersession of his earlier one either on his own endeavor or on the direction of the superior police officer but there are certain conditions and the limitation which may include the visible defects in the first investigation or flaws in the final report detected subsequently or the first investigation is unsatisfactory for many reasons including non-availability of the evidence or the successful induction of false evidence during the investigation or the corrupt behavior of the police officer. What we find out in this case is neither the I.O. has made any request for the reinvestigation, rather he robustly argued before us that he has completed the entire investigation with utmost care nor anything is available on record to show that the superior officers or the I.O. feel reinvestigation necessary. The reinvestigation may be conducted to unearth the truth where the fairness, rectitude and impartiality demands but it does not mean that after submission of challan; reinvestigation should be ordered denovo in a routine or as a custom without any rational or articulated justification. The reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation. The defect in the investigation or the challan if any can be easily examined by the trial Court and it is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all the accused will be afforded ample opportunity to defend the indictment so in our view non-allowance of the reinvestigation in this case does not mean the deprivation of the right of fair trial of the accused persons as envisioned under Article 10-A of the Constitution. On the contrary if the trend of applying or directing reinvestigation in every case is promoted or permitted as a fashion without any rational or pressing need then there will be no end to it rather it would amount an invitation to every person to apply for reinvestigation in order to drag and delay the proceedings and being aggrieved with the result of reinvestigation, the other side feeling as a victim of reinvestigation may also move similar applications for another investigation. This marathon will have no end but it will indeed create chaos and deteriorate the criminal administration of justice. So in our view the exercise of jurisdiction of passing orders for reinvestigation should not be taken so casually, callously and or offhandedly at the whims or aspiration but application of impartial and independent mind of the authority concerned is indispensable. Recently, in the case of Raja Khursheed Ahmed v. Muhammad Bilal reported in 2014 SCMR 474 the hon'ble Supreme Court held that for changing of investigation, the head of the investigation in the general police area shall record reasons for the same which means that such

officer is not merely a post office but has to apply his mind in order to reach correct conclusion.

1. In the wake of above discussion, the petition is admitted to regular hearing and allowed. Consequently, the impugned order dated 10.9.2014 issued for reinvestigation of Crime No. 235/2014 is set aside.

(R.A.) Petition allowed

PLJ 2015 Karachi 199

Present: Salahuddin Panhwar, J.

MUHAMMAD RAMZAN--Appellant

versus

MUHAMMAD ALI and others--Respondents

Second Appeal No. 42 of 2010, decided on 26.11.2014.

Contract Act, 1872 (IX of 1872)--

----S. 54--Civil Procedure Code, (V of 1908), O. VII, R. 11--Limitation Act, (IX of 1908), Art. 113--Suit for specific performance of contract--Fixed date--Registered sale-deed--Part performance of contract--Failed to obtain sale certificate--Plaint barred by law of limitation--Effect of incapability to execute registered sale--Maintainability of appeal--When things to be performed are dependant upon reciprocal promises then second promise cannot be insisted to be done nor failure thereof can be claimed for damages or as ground to fail, agreement unless it is established that first promise was done--In such eventuality seller would have no advantage of own failure to perform part of reciprocal promise--If is established that on fixed date seller had not completed his title perfect yet it will have no bearing on fixed date--Such ground will not help purchaser to claim an exception to specific purpose and object to Art. 113 of Limitation Act, which provides period of three years to bring a lis for specific performance of contract--If case is falling within first clause of Art. 113 of Limitation Act, then second clause is not be resorted to--Suit was not filed within three years for date of filing of rent application deed on fixed date--Courts below had committed no illegality in finding plaint as barred by law of limitation hence rightly rejected the plaint--If a petition or suit is filed beyond limitation each day’s delay has to be explained and if from statement in plaint suit appeal to be barred by limitation, Court is obliged to reject plaint under O. VII, Rule 11, CPC.

[Pp. 204, 205, 207 & 209] A, B, C, H, K & L

Limitation Act, 1908 (IX of 1908)--

----Art. 113--Civil Procedure Code, (V of 1908), O. VII, R. 11--Specific Relief Act, (I of 1877), S. 19--Suit for specific performance--Date was fixed for performance--Guilty of breaching obligation on date so fixed for performance--Effect of incapability to execute register sale-deed on fixed date--Limitation--Acknowledged receipt of notice--Validity--Receipt of notice through which respondent had categorically refused their liability to perform part was sufficient to give right to file suit for specific performance of contract but even from such date of notice the suit was not within stipulated period of three years--Cause of action to file suit for specific performance of contract accrues from fixed date or from date of notice of refusal, if there is no fixed date--Rent proceedings or decision had no nexus or relation with Art. 113 of Limitation Act, hence from all aspects suit of plaintiff was rightly found to be barred by Art. 113 of Limitation Act. [P. 206] D, E & F

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

----S. 19--Contract Act, (IX of 1872), S. 54--Specific performance of contract--Breach of contract--Relief of damages--Compensation--Power to award--Validity--Right to claim compensation to plaintiff for breach of contract accrues coincidently with right to sue for specific performance of contract, hence limitation for such right shall be same as for specific performance of contract because such right of compensation is either in addition or in substitution--Seeking relief of damages shall save suit from application of law of limitation. [P. 207] G & I

Limitation Act, 1908 (IX of 1908)--

----S. 113--Specific Relief Act, (I of 1877), S. 19--Limitation--Law and procedure--Rent proceedings--Enforcement of right of specific performance of contract--No substance in such plea--Ownership in rent proceedings--Validity--Tenant may take such plea but since rent controller is not legal forum to grant relief of specific performance of contract or even decide question relating to status of agreement hence such stand in no way will help in extension of period of limitation to bringing a lis for enforcement of right of specific performance of contract within meaning of Section 19 of Specific Relief Act. [P. 208] J

2011 SCMR 320, 1997 SCMR 877, PLD 2012 SC 247, PLD 1985 SC 153, 2009 CLC 759, PLD 2011 SC 657, ref.

M/s. Arbab Ali Hakero and Abdul Ghafoor Hakero, Advocates for Appellant.

Mr. Irfan Ahmed Qureshi, Advocate for Respondent No. 1.

Date of hearing: 9.10.2014.

Judgment

Through this IInd Civil appeal, the appellant has assailed judgment and decree dated 10th July 2010, passed by 1st Additional District Judge, Badin in Civil Appeal No. 12/2008 “Re-Muhammad Ramzan v. Muhammad Ali & Ors”, whereby maintaining order dated 19.5.2008 of learned Senior Civil Judge, Matli through which application under Order VII Rule 11, CPC was allowed, consequently plaint of the first class suit filed by appellant was rejected as barred by Limitation Act.

1. Succinctly, but relevant facts, as pleaded in civil suit, are that the Respondents Nos. 1 to 11 are owners of shop bearing CS No. 348 area 41.5 Sq. yards Ward-B Matli; they entered into a sale agreement dated 23.7.2003 for total sale consideration of Rs. 725,000/- out of which Respondent No. 1 received Rs. 325,000/- and remaining consideration was agreed to be paid at the time of registration of sale-deed upto 15.3.2004, after foti-khata of deceased owner Abdul Majeed in record of rights. The suit property was on rent with appellant at rate of Rs. 600/- per month and legal possession was handed over to appellant in part performance of contract. It was agreed that if seller violates terms and conditions and refused to execute they will be liable to return Rs. 325,000 and would also pay damages of Rs. 650,000/- to appellant and if appellant fails to perform his part of contract then advance money i.e. Rs. 325,000/- would be forfeited. On 15.3.2004, appellant approached Respondents Nos. 1 to 11 through Respondent No. 1 and offered Rs. 400,000/- with request for execution of register sale-deed but it was refused on ground that foti-khata has not been mutated in their favour.

2. It is further pleaded that appellant received two legal notice (s) from Respondent No. 1 wherein it was contended that appellant failed to pay consideration of Rs. 400,000/- on 15.3.2004 hence violated terms and conditions of sale agreement; the appellant protested while claiming that the respondents failed to obtain sale certificate upto 15.3.2004 and shown willingness for getting title by paying remaining sale consideration; he was kept on hopes for want of execution of power of attorney. On 23.11.2004 respondents filed R.A.No. 02/2004 against appellant on ground of default before Senior Civil Judge, Matli which was allowed on 23.11.2004; appeal filed by appellant i.e FRA No. 06/2005 was, however, allowed by District Judge, Badin. Appellant denied to have violated but alleged that it were respondents who failed to get foti-khata upto 15.3.2004 and registered power of attorney hence the respondents are liable to pay damages.

3. In view of above back ground the plaintiff/appellant sought following relieves:--

(a) This Honourable Court may be pleased to direct the Defendants Nos. 1 to 11 to execute the sale-deed to be registered before the Sub-Registrar Matli by obtaining the sale certificate from the City Survey officer, Matli on receiving the balance amount of sale consideration of Rs. 400,000/- for the suit property i.e a shop bearing city survey No. 148 admeasuring 41.5 Sq. Yds situated in Ward-B Matli Town

OR IN ALTERNATIVE.

The Nazir of this Honourable Court may be directed to execute the sale-deed for the suit property on behalf of the Defendants Nos. 1 to 11 in favour of the plaintiff on receiving the balance of amount of sale consideration of Rs. 400,000/-;

(b) To direct the Defendants Nos. 1 to 11 to pay an amount of Rs. 650,000/- as damages for the refusal of the execution of registered sale-deed in favour of the plaintiff as per terms and conditions of the sale agreement dated 23.7.2003.

(c) To direct the Defendants No. 1 to 11 to pay the interest at rate of Rs. 15@ to the plaintiff on the amount of Rs. 650,000/- for damages since 15.3.2004 till the same is finally paid to the plaintiff;

(d) To grant permanent injunction whereby the Defendants No. 1 to 11 may personally be restrained from dispossessing the plaintiff from the suit property in any manner whatsoever directly or indirectly through themselves or through their agents, servants, assignees and representatives etc.

1. On presentation of plaint of the plaintiff/appellant, the learned trial Court judge heard arguments and rejected the plaint of the plaintiff/appellant through order dated 19.5.2008 finding the same to be hit by Article-113 of the Limitation Act. The appellant filed the Civil Appeal No. 12/2008 before District Judge, Badin which was also dismissed by learned 1st Additional District Judge, Badin by impugned judgment and decree.

2. Learned counsel for the appellant contended that both the Courts below erred in appreciating that suit was not for Specific Performance of Contract only but relief (s) of damages, Mandatory and permanent injunction were also included hence suit was not barred by law of limitation; contents of plaint are to be taken as true and plaint could only be rejected if there is no chance of ultimate success. He concluded his arguments while placing reliance on case law reported as 2008 YLR 1287.

3. On other hand, the learned counsel for the respondents argued that appeal is not maintainable and that both the learned lower Court(s) have rightly recorded the order/judgment as the contents of plaint themselves make the plaint barred by law of Limitation. He further added that the respondents challenged the order passed in FRA, filed by appellant, through CP No. S-118 of 2007 before this Honourable Court which was allowed vide judgment dated 22.5.2013. Copy of judgment was also placed during course of arguments by side of the respondents.

4. Since the issue, involved in the matter, revolves round the Article 113 of the Limitation Act, therefore, it would be proper to refer the same which reads as under:--

Article. 113. For specific performance of a contract.--The date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance has been refused.

The above Article is clear in its meaning that limitation shall start from the fixed date or if no date is so fixed then from the date of notice of refusal.

1. As the appellant has taken a plea that on date fixed the respondents/defendants had not got their title to execute the register sale-deed hence 'fixed date' was wrongly weighed much by both the Courts below. I would like to examine this plea first by forming into shape of proposition as:

“if a date for performance is fixed but the 'seller' has not completed his/her title perfect for execution of the deed then what be the consequences of such incapability?

In search of answer of this, I would be conducive to refer the Section 54 of the Contract Act which reads as under:--

1. Effect of default as to that promises which should be first performed, in contract consisting of reciprocal promises. When a contract consists of a reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promissor of the promise last mentioned fails to perform it, such promissor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contact for any loss which such other party may sustain by the non-performance of the contract'

2. From the reading of the above provision, it becomes quite clear that when things to be performed are dependant, upon reciprocal promises then second promise cannot be insisted to be done nor failure thereof can be claimed for damages or as a ground to 'fail' the agreement unless it is established that the first promise was done. The proposition can well be answered that in such eventuality the seller shall have no advantage of his/her own failure to perform his/her part of reciprocal promises.

3. In the instant matter, the date was fixed for the performance in the sale agreement as 15th March, 2004 but it is evident that 'Foti-khata-badal’ in names of the defendants/ respondents was effected on 19.6.2004 i.e. much after the agreed date hence within meaning of the Sections 51, 52 and 54 of the Contract Act the present appellant cannot be held to have been guilty of breaching his obligation (s) on the date so fixed for performance i.e 15th March, 2004.

4. However, let me make it quite clear that this would be taken as a ground to make one 'defaulter or guilty of breach of term of contract' which would entitle a party (purchaser) to insist Specific Performance of Contract or damages etc but this will not allow the purchaser to claim it as an extension of 'fixed date' which could only be through 'writing'. Thus, even if it is established that on 'fixed date', the seller had not completed his/her title perfect yet it will have no bearing on the 'fixed date' if it is mentioned in the 'agreement'. Thus, suffice to state that this ground will not help the purchaser to claim an exception to specific meaning, purpose and object to Article 113 of the Limitation Act which provides a period of three (03) years to bring a lis for Specific Performance of Contract. Reference, if any, can be brought by the dictum of the Honourable Supreme Court of Pakistan passed in the case of 'Abdul Karim v. Florida Builders (Pvt) Ltd. (PLD 2012 SC 247) wherein it is held as:--

'E.--From the above discussion, the scope of Article 113 of the Act having been elucidated, we find that the present case was/is not covered by second part of the said Article, rather the first part thereof, is squarely and exclusively attracted and the limitation period shall commence forthwith from the date fixed by the parties, notwithstanding the alleged failure, inabilities of the respondent to perform its part of the obligations, the alleged interaction between the parties, their conduct, which all shall have no relevance in the context of the limitation of those suits covered by first part of the Article', (under lining and bolding is mine for emphasis)

1. In view of above, it becomes quite clear and obvious that plea of learned counsel to the effect of incapability of the defendants/respondents to execute register sale-deed on 'fixed date' will not absolve the plaintiff/appellant to bring his lis within stipulated period i.e upto 15th March, 2007 (as fixed date was 15th March 2004) .

2. It is also well established principle of law that if the case is falling within first clause of the Article-113 of the Limitation Act then the second clause is not to be resorted to. At this juncture, it would be advantageous to refer another operative part of the above referred judgment of Honourable Supreme Court (PLD 2012 SC 247) which reads as:

“………… In other words, as has been held in the judgments reported as Siraj Din and others v. Mst. Khurshid Begum, and others (2007 SCMR 1792) and Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) 'when the case falls within first clause the second clause is not to be resorted to'. However, the exemption, the exclusion and the enlargement from/of the period of limitation in the cases of first part is permissible, but it is restricted only if there is a change in the date fixed by the parties or such date is dispensed with by them, but through an express agreement; by resorting to the novation of the agreement or through an acknowledgment within the purview of Section 19 of the Act. And/or if the exemption etc. is provided and available under any other provision of the Act however, to claim such an exemption etc. grounds have to be clearly set out in the plaint in terms of Order VII Rule 6, C.P.C.’

1. Be as it may, the perusal of the record makes it quite obvious that the plaintiff/appellant acknowledged the receipt of notice (s) dated 22.9.2004, issued by the Defendant/Respondent Nos. 1 to 11 whereby they had claimed that the plaintiff/appellant failed to pay consideration of Rs. 400,000/- on fixed date i.e 15.3.2004 hence they (defendants/respondents) are not liable to execute the register sale-deed. Receipt of such notice (s) through which the defendants/respondents had categorically refused their liability to perform their part was sufficient to give a right to the plaintiff/appellant to file the Suit for Specific Performance of Contract but even from such date of notice the suit, filed by the appellant/plaintiff, is not within stipulated period of three (03) years Further, reference to Para-12 of the plaint of the appellant/plaintiff shall make things about 'accrual of cause of action' clear and unambiguous which, being material, is reproduced hereunder:--

`12. That the cause of action for filing the present suit accrued to the plaintiff firstly on 15.3.2004 secondly on 22.9.2004 when two notices were issued by the Defendant No. 1, thirdly on 23.11.2004 when the Defendants No. 1 to 11 filed the Rent Application No. 02/2004 before the Court of Rent Controller, Matli and lastly on 28.02.2007 when the judgment of the Court of District Judge, Badin in Rent Appeal No. 06/2005 was passed and the same cause of action is recurring day to day till today'

1. From so far discussion, it stood clear that 'cause of action' to file a suit for 'Specific Performance of Contract' accrues from the 'fixed date' or from date of notice of refusal if there is no 'fixed date'. The plaintiff/appellant admittedly not filed the suit within stipulated period with reference to 'fixed date' and even not filed the suit with reference to date of receipt of notice of respondents/defendants and even that of rent application. The rent proceedings or decision thereon have no nexus or relation with article 113 of the Limitation Act, hence from all aspects the suit of the plaintiff/appellant was rightly found to be barred by Article 113.

2. So far as to the plea of learned counsel for the appellant/ plaintiff that since the plaintiff/appellant has also sought a relief of 'damages' therefore, plaint of the plaintiff/appellant was not liable to rejection. At this juncture, a reference to Section 19 of the Specific Relief Act shall make things rather clear which reads as under:--

'19. Power to award compensation in certain cases.--Any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance.

If in any such suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly.

If in any such suit the Court decides that specific performance ought to be granted but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

1. The above provision makes it evident that even to claim `compensation/damages' one can competently bring a suit for 'compensation' as in addition or in substitution to 'specific performance of contract', therefore, right to claim compensation to plaintiff for breach of contract accrues coincidently with the right to sue for specific performance of Contract hence limitation for such right shall be the same as for Specific Performance of Contract because such right of compensation is either 'in addition or in substitution'.

2. Thus, it would be conducive to refer the para-6 of the plaint of the plaintiff/appellant which reads as under:--

`6. That the plaintiff protested before the Defendant No. 1 and asked him that the Defendants No. 1 to 11 have themselves not obtained the fotikhata badal mutation in their favour in the concerned revenue record and failed to obtain sale certificate there from upto 15.3.2004, therefore, the Defendants No. 1 to 11 have themselves violated the terms and conditions of the sale agreement and the plaintiff has not violated any terms and condition of the sale agreement. The plaintiff showed his willingness to pay the balance sale consideration of Rs. 400,000/- and demanded the execution of the sale-deed but the Defendant No. 1 again kept the plaintiff on hopes for want of the execution of the registered power of attorney from the Defendants No. 2 to 11 in his favour'

1. The above para makes it clear that 'plea of breach of contract' was taken by appellant/plaintiff on part of the defendant yet not filed the suit. The plaintiff/appellant, even, did not file the suit within three years from date of filing of rent application i.e. 23.11.2004, therefore, I am not in agreement with the learned counsel for the appellant/plaintiff that seeking relief of damages shall save the suit of plaintiff/appellant from application of law of limitation.

2. Let's examine the case of the appellant/plaintiff from another angle, which the counsel took up, during course of arguments that plaintiff/appellant had taken plea of 'ownership' in rent proceedings and even this Court while allowing C.P.No. S-118 of 2007 “Re-Muhammad Ali & 10 others vs District & Sessions Judge & Others' observed that:

“The respondent, however, would be at liberty to approach the competent Court having jurisdiction to agitate his case that the petitioners violated the terms and conditions of the agreement therefore exposing them to consequence of such violation.”

therefore, such observation can be taken to relax the limitation. I do not find any substance in such plea of the learned counsel for the appellant/plaintiff. It is not the observation of the Court or even the consent of the parties which starts 'limitation' but it is the 'law & procedure' alone which matters. It would suffice to say that tenant may take such plea but since the 'Rent Controller' is not a legal forum to grant relief of Specific Performance of Contract or even decide question relating to status of 'agreement' hence such stand, in no way, will help in extension of period of limitation to brining a 'lis' for enforcement of right of Specific Performance of Contract within meaning of Section 19 of Specific Relief Act. I am strengthened in such view with the case of 'A. Rasheed Vs. Maqbool Ahmed & Ors (2011 SCMR 320) wherein it was held by honourable Supreme Court as:

“It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of sale agreement where-after he would be given easy access to the premises in case he prevails.”

In another case, reported as '1996 SCMR 877', the Honourable Supreme Court held as:--

“Thus the learned Rent Controller decided all questions relating to execution of agreement to sell half of the property for which he had no jurisdiction.”

1. The Honourable Supreme Court of Pakistan in a judgment passed in the case of 'Abdul Karim v. Florida Builders (Pvt) Ltd. (PLD 2012 SC 247), clearly held that:--

'F' …….. Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The Courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof’ (underlining and holding is mine to emphasis).

1. It is settled principle of law that if a petition or a suit is filed beyond limitation each day's delay has to be explained and if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under R. 11 Order VII, CPC. Reliance, if any case be made to Hakim Muhammad Buta & another Vs Habib Ahmed & Ors (PLD 1985 SC 153), wherein it is held that:

“Matter of limitation is not left to pleadings of parties.--It imposes a duty in this regard upon Court itself--As such if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under R. 11 Order VII, CPC--Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves--In exceptional cases, a defendant would, however, be debarred from rising plea of limitation.--This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts”.

In case of Ahmed Khan v. Kausar Perveen (2009 CLC 759 (Lahore), it is held that:--

“This Court is conscious of the fact and it would not require detailed discussion to say that a suit filed or an appeal preferred after the limitation provided in law is without jurisdiction. It should be dismissed even if nobody has appointed out such lacuna in filing the petition or the appeal whatsoever. However, the facts of each being separate this issue shall be decided after due appreciation of the facts of this case.”

In case of Lal Khan v. Muhammad Yousaf (PLD 2011 SC 657), it is held that:--

'Aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit etc. is filed beyond limitation each day's delay has to be explained. Where vague explanation was given without even specifying the date of knowledge, nor any explanation tenable in law was provided to justify condonation, delay condoned was violative of law and, was not sustainable'

In the case of 'Abdul Karim v. Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247), it is held that:--

1. We have already noticed that the Court is bound by the use of the mandatory word 'shall' to reject a plaint if it “appears” from the statements in the plaint to be barred by any law. What is the significance of the word “appears'? It may be noted that the legislative draftsman has gone out of his way not to use the more common phraseology. For example, in the normal course, one would have expected that the language used would have been “where it is established from the statements in the plaint that the suit is barred by any law” or, alternatively,” “where it is proved from the statement in the plaint that the suit is barred by any law”. Neither of these alternatives was selected by the legislative draftsman and it must be assumed that this was a deliberate and conscious decision. An important inference can therefore be drawn from the fact that the word used is “appears”. This word, of course, imports a certain degree of uncertainty and judicial discretion in contradistinction to the more precise words 'proved' or “established”. In other words the legislative intent seems to have been that if prima facie the Court considered that it “appears” from the statements in the plaint that the suit was barred then it should be terminated forthwith.

2. In view of above discussion, I am clear in my view that both the Court(s) below have committed no illegality in finding the” “plaint of the plaintiff/appellant as barred by law of limitation hence rightly rejected the plaint. Accordingly, the appeal of the appellant is hereby dismissed with no order as to costs.

(R.A.) Appeal dismissed

PLJ 2015 Karachi 210

Present: Salahuddin Panhwar, J.

GUL HASSAN SHAH and 3 others--Applicants

versus

PROVINCE OF SINDH through Secretary, Land Utilization Board of Revenue to beServed through Deputy Commissioner and 6 others--Respondents

R.A. No. 34 of 2014, decided on 26.11.2014.

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

----O. XXXIX, Rr. 1 & 2--Specific Relief Act, (I of 1877), S. 54--Right of party to seek for perpetual injunction--Rights and title was denied--Restraining from interfering in peaceful possession and alienation and creation of third party interest--Validity--An interim injunction can be sought by defendant; when plaintiff intends to seek an 'status-quo' during pendency of suit his prayer for interim injunction is required to be controlled by main relief which he/she sets through pleading because he/she approaches Court while pleading an invasion or threat to invade his/her (plaintiffs) right to or enjoyment of property--Applicants had failed to make out a case for grant of injunction--There is no cavil in proposition of law that when a relief which is not sought as main relief by plaintiff, same cannot be extended as interim injunction and Courts are bound to proceed within prescribed limits of law. [Pp. 214 & 215] A, B & C

Mr. MuhammadHashim Bajeer, Advocate for Applicants.

Mr.Sulleman Dahri, Advocate for Respondents No. 6 and 7.

Date of hearing: 26.11.2014.

Order

Through instant Civil Revision, applicants have assailed the order dated 03.02.2014 passed by District Hudge, Tando Muhammad Khan in Civil Miscellaneous Appeal No. 04/2014, whereby maintained the order dated 09.12.2013, passed by Senior Civil Judge, Tando Muhammad Khan, consequently application U/O XXXIX Rules 1 and 2, C.P.C. of the applicants/plaintiffs, moved in F.C Suit No. 72/2012, (Re-Gul Hassan Shah and others v. Province of Sindh and others); was declined.

1. Succinctly, relevant facts are that one late Syed Muqeem Shah and Respondents No. 6 and 7 belong to Shia sect. Deceased left behind certain properties including agricultural land. Syed Muqeem Shah died on 11.07.2010, leaving his surviving legal heirs as Gul Hassan Shah (son), Mst. Fatima Bibi (daughter) and Mst. Sharifan Bibi (daughter), Mst. Ameena Bibi and Mst. Mumtaz Begum both as widows so also one Mst. Seema (daughter). Applicants approached to higher Revenue authority for the change of Foti Khata in favour of the legal heirs but failed to succeed thus applicants filed CP.No. D-1858 of 2010 before this Court and vide order dated 11.02.2011 this Court directed the applicants/petitioners to approach the competent Court of law/Civil Court. After the death of Syed Abdul Muqeem Shah, Respondents No. 6 and 7 filed F. C. Suit No. 45 of 2011 before learned District Judge but same was withdrawn vide order dated 14.03.2012 with permission to file a fresh suit; ultimately they filed F. C. Suit No. 15 of 2012 before the trial Court which is pending in which they have joined the present applicants as party; they have denied the rights of the applicants. The Respondents No. 6 and 7 in collusion with Respondents No. 4 and 5 have put clouds over the rights and interest of the applicants and have denied rights and title of the applicants. It is pleaded in plaint that the Respondents No. 6 and 7 have maliciously claimed that only they are the legal heirs of Abdul Muqeem Shah, hence applicants filed suit for declaration of the rights of applicants over the suit land before trial Court and prayed for the judgment and decree as under:--

(a) Declare Plaintiffs and Defendants No. 6 and 7 are legal heirs of Abdul Muqeem Shah are entitled to get the share as per Muhammadan Law, declare the ownership rights over the suit land, described in plaint Para No. 02 left by Abdul Muqeem Shah.

(b) To Direct the Defendants No. 04 and 05 Taluka Mukhtiarkar Tando Ghulam Hyder and Supervising Tapedar of the beat to make/affect the Foti Khata Badal, under Section 42 of Land Revenue Act 1967 in the names of the Plaintiffs and Defendants No. 06 and 07 are legal heirs of Abdul Muqeem Shah.

(c) Cost of the Suit be borne by Defendants No. 06 and 07.

(d) Any other relief which this Honourable Court deem fit and proper be awarded.

1. That applicants filed application under Order XXXIX Rules 1 & 2 r/w Section 151, CPC alongwith suit for permanent injunction, restraining the private respondents from interfering in peaceful possession of suit land, which was dismissed vide order dated 09.12.2013. Against the above order, applicants filed Miscellaneous Appeal before District & Sessions judge, which was also dismissed, hence they filed this revision.

2. Learned counsel for applicants have argued that impugned orders passed by both Courts below are opposed to law and facts; both the lower Courts have failed to consider that the applicants are lawful co-owners of the property in dispute; impugned orders of both the Courts are misconceived and misconception under the law hence liable to be set aside; that the impugned orders are based on conjectures, surmises, assumption and presumptions having no value in the eye of law. In support of his contentions, learned counsel has relied upon the cases reported as Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Rabat Khan alias Zafri v. Captain (Retd.) Tahir Naveed and 6 others (2009 S.L.J. 1062), Sahib Jan and others v. Mst. Ayesha Bibi through L.Rs. and others (2013 SCMR 1540), Abdul Razzak v. Lal Bux and another (2012 CLC 4), Islamic Republic of Pakistan through Secretary, Ministry of Commerce, Islamabad v. General Traders and ammunition manufactures Ltd. through Chief Executive (2008 CLC 1462), Messers Decemtn Marble through Registered Attorney v. Government of Sindh through Chief Secretary Karachi and 5 others (2008 CLC 737), Muhammad Iqbal v. Muhammad Irfan and 6 others (2014 YLR 1972), Muhammad Afzal through Legal Heirs and others v. Riaz Mahmood, Additional District judge, Lahore and 8 others (PLD 2004 Lahore 115) and Syed Murshad Ali v. Syed Amjad Ali and 3 others (2014 YLR 1620).

3. Conversely, learned counsel for Respondents No. 6 and 7 while supporting both impugned orders, contends that same are speaking and passed in accordance with law; applicants are not entitled for claiming their share in the suit property; applicants did not claim for permanent injunction before the trial Court and filed suit only for declaration; the instant revision has been filed only to prolong the matter hence the same may be dismissed being meritless. In support of his contentions, learned counsel has placed reliance on the cases reported as Mohar Khan and 7 other v. Sultan Khan and 5 others (1988 CLC 20), Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 Supreme Court 139), Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 Supreme Court 53), Hussain. A. Haroon and others v. Mrs. Laila Sarfraz and others (2003 CLC 771), Unichem Corporation (Pvt.) Ltd. and others v. Abdullah Ismail and others (1992 MLD 2374), Fayyaz Ali Shah v. Amir Fatima and others (1987 CLC 1960) and Messers Iftikhan and C. Ltd. v. Uzin Export-Import Enterprises for foreign trade, Baluchistan (1986 CLC 303).

4. Heard learned counsel for the parties and perused the material available on record.

5. Before dilating upon the merits of the case, let me make it clear that the provision of Order XXXIX R. 1, CPC is not meant for introduction of a new situation but is meant to preserve the interests and rights and to maintain a status-quo during pendency of the lis. Here, it is necessary to add that the provision of Section 54 of the Specific Relief Act does recognize the right of a party to seek for 'perpetual injunction'. The said section, being relevant to the controversy involved is reproduced hereunder:--

6. Perpetual injunction when granted.--Subject to the other provisions contained in, or referred to by tins Chapter a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication.

When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.

When the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely)

(a) ……

(b) ……

(c) where the invasion is such that pecuniary compensation could not afford adequate relief;

(d) where it is probable that pecuniary compensation cannot be got for the invasion;

(e) ……..

The underlining would show that whenever there is an invasion or threat to invade the plaintiff’s right to or enjoyment of property a perpetual injunction can competently be granted by the Court but subject to condition that 'invasion or threat to such right should not be capable of being compensated through pecuniary compensation or by other adequate relief’. This condition is also applicable for grant of an injunction, even if granted Under Order XXXIX R. 1, CPC because no injunction can be granted, where `irreparable loss/injury' is not established, as it is one of the most important ingredients out of three required ingredients.

1. I am quite aware of the legal position that an interim injunction can be sought by the defendant; when the plaintiff intends to seek an 'status-quo' during pendency of the suit his prayer for interim injunction is required to be controlled by the main relief which he/she sets through pleading because he/she approaches the Court while pleading an invasion or threat to invade his/her (plaintiffs) right to or enjoyment of property. This could have been the object because of which the Honourable Supreme Court in the case of 'Marghub Siddiqui v. Hamid Ahmed Khan & 2 Others(1974 SCMR 519) held that:

“C” The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case, the application for ad interim injunction should have failed on this ground alone.

1. On the above principle, the order (s) of both the Court (s) below do not appear to be result of some illegality. However, on merits, per available pleading, the applicants have failed to make out a case for grant of injunction. To make things rather easy, it would be conducive to refer the prayer clause of injunction application which is as under;--

“It is prayed that this Honourable Court may be pleased to grant ad-interim injunction against the Defendants whereby restraining the Defendants not to interfere in the peaceful physical cultivating possession of the suit land, not to alienate directly or indirectly through themselves, agents, subordinates, attorneys restrained or from creating any 3rd party interest over the suit land till the disposal of the suit on the consideration of the grounds mentioned in accompanying affidavit.”

The applicants sought restraining order against the respondents to the extent of 'interference in peaceful cultivating possession of suit land' so also 'for alienation and creation of third party interest'. The perusal of the pleading of the applicants would show that they did not claim to be in specific possession of the property in question nor claimed to have been threatened so by the respondents/defendants hence in absence of such fact (not pleaded in plaint) and prayer the applicants/plaintiffs cannot claim interim injunction beyond their own pleading because a plaintiff is required to plead all facts, including invasion or threat to invade to his/her right to enjoy property. Even otherwise, the relief (s), sought by the applicants are such that if they succeed in establishing their case there would be no issue of 'irreparable injury' because any alienation or third party interest would fall within meaning of lis pendens and even otherwise can well be compensated through adequate relief. Worth to conclude that there is no cavil in proposition of law that when a relief which is not sought as main relief by the plaintiff, the same cannot be extended as interim injunction and Courts are bound to proceed within prescribed limits of law.

1. In view of above, it is patent that this is not a case where one can take plea that impugned orders are illegal and ab-initio void. Besides, learned counsel for applicants contends that on account of this situation, he has filed application Under Order VI Rule 17, C.P.C., whereby he is seeking amendment in prayer clause by adding such relief of permanent injunction thus without prejudice of the observations made hereinabove, applicants would be at liberty to file a fresh injunction application in case application Under Order VI Rule 17, C.P.C. is allowed by the trial Court.

2. In view of above, instant revision application is dismissed.

(R.A.) Revision dismissed

PLJ 2015 Karachi 216

Present: Salahuddin Panhwar, J.

SHAMSHAIR ALI--Applicant

versus

MUKHTIARKAR (REVENUE) & CITY SURVEY OFFICER DISTT. MIRPURKHAS and 2 others--Respondents

R.A. No. 15 of 2011, decided on 5.11.2014.

Revisional Jurisdiction--

----Scope of--It is settled principle of law that while exercising revisional jurisdictional, High Court cannot disturb factual controversy resolved by subordinate Courts unless it is surfaced that impugned judgments are result of non-reading, misreading and violation of legal principles. [P. 220] A

Correction of jurisdictional defect--

----Scope--Scope of revisional jurisdiction is very limited and is confined for correction of jurisdictional defects, patent illegality/irregularity effecting merits of case and not merely for substituting its own finding with that of appellate Court. [P. 220] B

Principle of Law--

----It is well established principle of law to effect that `what one cannot get directly he cannot get same indirectly’--This principle of law is not only to give due weight to what law insists for doing a particular thing but it is also to put ill doer on a notice that things obtained through any other mode, except as provided by law, shall always remain open for action of law. [P. 221] C

Transfer of Property Act, 1882 (IV of 1882)--

----S. 41--Acquired title through fraud—Bona fide claim cannot save fraud--Benefit of law--Validity--Benefit of law would be available to a bonafide owner but benefit/protection is not available to one who acquires a title from an unauthorized and incompetent person or from person who acquired title through fraudulent mean--Even a bonafide claim cannot save 'fraud' from action of process of law as and when it comes to light--Protection of Section 41 of Transfer of Property Act, would not be available against a fraudulently obtained title or in respect of fraud committed with reference to Government property else it would be very easy for ill-doer to first arrange an entry and then to seek protection thereof by arranging a subsequent 'transfer'--To provide a legal protection to an ill-gotten or fraud is not object of law. [P. 221] D & E

Fraudulent Entry in Revenue Record--

----Principle of audi alteram partem--Mere entry in survey record, not create title--Cancellation of entry--Validity--Cancellation of such fraudulent entry was, in no way, caused any harm to applicant/plaintiff because cancellation was of rout entry who never challenged same--Principle of 'audi alteram partem' is not of universal application but would be excluded, if importing right to be heard has effect of paralyzing administrative process or need for promptitude or urgency of situation so demands. [P. 223] F & G

Cancellation of Registered Deed--

----Correction of jurisdictional defect--Mere entry in revenue record, not create title--Revenue authorities are not competent to cancel registered deed, on such proposition there is no cavil and undisputedly only Civil Court is competent to cancel registered deed but here ' question is only with regard to cancellation of mutation that was challenged by plaintiff/applicant but trial Court framed issues and discussed same on evidence produced by both parties and while reaching at conclusion, that said property was fraudulently mutated hence one cannot be entitled to derive his legal character from a fraudulent transaction--Applicant had failed to point out any illegality or irregularity in impugned judgments.

[P. 229] H

Mr. Pirbhulal U. Goklani, Advocate for Appellant.

Mr. Ashfaque Nabi Kazi, Assistant A.G. for State.

Date of hearing: 22.10.2014.

Order

Through instant Civil Revision, applicant has assailed the judgment dated 25th October 2010 passed by 1st Additional District & Sessions Judge, Mirpurkhas in Civil Appeal No. 69/2010, whereby judgment and decree dated 31.05.2010 and 05.06.2010 in F.C. Suit No. 64/2003 (Re-Shamshair Ali v. Mukhtiarkar and others) recorded by IInd Senior Civil Judge, Mirpurkhas was maintained. Consequently, civil suit filed by plaintiff/applicant was dismissed.

1. Succinctly, facts are that applicant/plaintiff filed F.C. Suit for Declaration and Mandatory Injunction, stating therein that Muhammad Hashim son of Abdul Hakeem was owner of plot bearing C.S. No. 1206 area 2560 Sq feet situated in Ward No. 5 Kot Ghulam Muhammad Town; his name was entered as owner in the Extract Form of Property Register, maintained by the Respondent/Defendant No. 1. Plaintiff/applicant purchased an area of 40 X 32=1280 Sq feet out of the said plot under registered sale-deed Bearing No. 336 dated 02.09.1997, thereby came into physical possession of it which still lies with him, without any disturbance; such mutation was effected in City Survey Record. Rest of area of above plot was purchased by Akhtar Ali through registered sale-deed. The Respondent/Defendant No. 1 at his own motion without hearing the applicant/plaintiff cancelled such mutation entry entered. Thus applicant/plaintiff approached to Respondent/Defendant No. 1 for recalling and setting aside such order but he was refused sternly. Even he was refused to have its certified true copy, in similar fashion mutation effected in favour of Akhtar Ali was cancelled hence applicant/plaintiff and Akhtar Ali moved joint application dated 02.01.2002 to Respondent/Defendant No. 2 pursuance to that Rubkari No. 704 dated 27.06.2002 was issued contending therein that the suit area and the area purchased by Akhtar Ali was a property, reserved for “Tapedarr Deera” and the same stands shown in the Map; On the site it is lying unoccupied and further that the applicant/plaintiff and said Akhtar Ali have had no concern with it; however for restoration of such mutation entry they may approach to Civil Court. It is further averred in the plaint that the respondent/Defendants No. 1 & 2 who are subordinate of the Respondent/Defendant No. 3 have transgressed their powers vested in them in unlawful and illegal manner and as such their acts are without jurisdiction and mala fide.

2. The Defendant No. 1 (respondent) in his written statement contended that entry in the name of Muhammad Hashim son of Abdul Hakeem in the property Card Register of City Survey Record of Kot Ghulam Muhammad was wrong, illegal and malafide; at the time of preparing such record by the survey Team, the suit property never belonged to any private person including Muhammad Hashim; since the original entry in the record was illegal and malafide hence the authority who passed such order had power to withdraw the same under the provision of General Clauses Act, accordingly the matter is sub-judice before the competent authority for cancellation of entry as such suit is not competent; the suit property is Government property reserved for Tapedar Dera and was not property of any private person and its sale mere on the basis of Extract Form of City Survey Record is illegal, unlawful as the original owner Muhammad Hashim had no title over the suit property. It is further contended that the purchase of suit property from one Muhammad Hashim is in violation of Transfer of Property Act and sale-deed does not create title in favour of applicant/plaintiff; plaintiff is not in possession of suit property as in the year 1990 building of Tapedari Dera has been constructed and the remaining area of suit property is to be covered by erecting boundary wall and the plaintiff as well as outgoing alleged owner Muhammad Hashim never remained in possession of suit property; that entry in the name of Muhammad Hashim in the City Survey Record was illegal, unlawful, void ab-initio and malafide. Since Muhammad Hashim had no title hence mere entry in the city survey record does not create title in favour of Muhammad Hashim; since the name of Muhammad Hashim wrongly, illegally and fraudulently entered in the City Survey Record thus the then Mukhtiarkar by his letter No. 825 dated 28.8.1998 submitted his report to the then Assistant Commissioner for cancellation of entry made in the extract in the name of Muhammad Hashim and such matter was pending adjudication and it seems that plaintiff has managed with the City Surveyor and succeeded in entering his name in the city survey record on the basis of sale-deed. When the entire facts came to the knowledge of Defendant No. 1 the Defendant No. 1 withdrawn the attestation order as provided u/S. 166 of L.R Act as the entry was attested erroneously and the entry in favour of applicant/plaintiff was illegal and malafide; that such property was never available for allotment to any private person.

3. The Defendant No. 2 in his written statement contended the same contention as contended by the Defendant No. 1. He further contended that the name of Muhammad Hashim was entered in City Survey Record without any title and grant in his favour thus entry in the name of Muhammad Hashim was illegal, unlawful, void, ab initio, without jurisdiction and malafide, and said Muhammad Hashim or his forefathers the predecessor in interest of plaintiff were never granted the suit plot any time by the competent authority; plaintiff is not entitled for the relief claimed and thus the suit of the plaintiff is liable to be dismissed.

4. Learned counsel for applicant has argued that revenue authorities cancelled the mutation affected in favour of applicant without issuing show-cause notice hence the applicant has been condemned unheard; applicant purchased suit property by registered sale-deed thus such mutation was affected in his favour; registered deed cannot be cancelled on revenue forum; learned Courts below failed to appreciate the evidence produced by applicant hence impugned judgments passed by both Courts are against the settled norms of Civil Administration of Justice. In support of his contentions, learned counsel has relied upon the cases reported as Mir Muhammad Ali Rind v. Zahoor Ahmed and another (PLD 2008 Supreme Court 412), Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 Supreme Court 663), Dr. Manoj Kumar Malani v. Returning Officer and 2 others (2006 MLD 205), Muhammad Asghar v. Member Board of Revenue and others (2009 MLD 1023), Amir Jamal and others v. Malik Zahoor-ul-Haq and others (2011 SCMR 1023) and Messers Ahmed Clinic v. Government of Sindh and others (2003 CLC 1196).

5. Learned A.A.G. while refuting the above contentions has argued that suit property was government property and one Muhammad Hashim who was Peon in revenue office fraudulently entered such property in his name, thereby he sold out same to plaintiff/applicant; revenue authorities on getting knowledge cancelled such mutation thus aggrieved person was Muhammad Hashim but he has not challenged such cancellation; purchased suit property was not relating to Muhammad Hashim thus he was not competent to sell out the same to applicant; under any law applicant/plaintiff is not entitled to agitate his legal character over the suit property; however if he has been cheated by seller Muhammad Hashim, he has right to sue him with regard to such forgery.

6. Before headfirst into the merits of the case, suffice to say that it is settled principle of law that while exercising revisional jurisdictional, this Court cannot disturb the factual controversy resolved by subordinate Courts unless it is surfaced that impugned judgments are the result of non-reading, misreading and violation of legal principles. Scope of revisional jurisdiction is very limited and is confined for correction of jurisdictional defects, patent illegality/ irregularity effecting merits of the case and not merely for substituting its own finding with that of appellate Court. Reference, if any, can well be made to the case law, reported as 2012 SCMR 508.

7. In view of above touch stone and perusal of judgments passed by both Courts, it appears that the applicant/plaintiff nowhere challenged the stand of the revenue authorities (defendants/ respondents) with regard to rout of the subject matter i.e title of Muhammad Hashim to be result of fraud but the applicant/plaintiff has challenged the concurrent findings on two counts only i.e:

(i) he remained condemned unheard as revenue authorities served no notice upon him before canceling mutation entry;

(ii) he is the bonafide owner under a register sale-deed;

Therefore, his acquired status was required to be protected.

1. At this juncture it would be pertinent to mention that it is well established principle of law to the effect that `what one cannot get directly he cannot get the same indirectly’. This principle of law is not only to give due weight to what law insists for doing a particular thing but it is also to put ill doer on a notice that things obtained through any other mode, except as provided by law, shall always remain open for action of the law. Significant to refer the case of Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others reported as PLD 2010 SC 1109 wherein it was held by honourable Supreme Court that:

“………. In the recorded judicial history such a situation attracted judicial notice in the year 1889 in case of Madden v. Nelson (1889 AC 626) and it was Lord Helsbury who declared for the first time that what was not permitted by law to be achieved directly could not be allowed to be achieved indirectly. And the said principle has been has been repeatedly acknowledged and followed by the Courts ever since then and the Courts in Pakistan are no exception in the said connection. The case of Mian Muhammad Nawaz Sharif and Haji Muhammad Boota (supra) are evidence to the said effect.”

1. Thus, germane to endorse that one can competently transfer a 'title' but he cannot transfer what he does not have. One cannot claim to have acquired a better title than the one transferor was capable of. In the instant matter the applicant/plaintiff has not sought any declaration about the title of Muhammad Hashim under whom he is claiming and which is the basic/route. This goes to mean that the foundation/route of the subject matter is not being sought to be protected by applicant/plaintiff. Even for a moment the plea of the applicant/plaintiff is allowed with regard to his own title yet his title shall fail for the well established principle of law that `where foundation is found defective the whole superstructure, raised thereon, shall collapse'. Noteworthy to add here that the benefit of law (Section 41 of Transfer of Property Act) would be available to a bonafide owner but this benefit/protection is not available to one who acquires a title from an unauthorized and incompetent person or from the person who acquired title through fraudulent mean. The position so, for simple and very logical reason that even a bonafide claim cannot save 'fraud' from action of process of law as and when it comes to light. Reference can be taken by the case Nawab khan Raisa Begum & Ors [2003 SCMR 1498), wherein it is contended that:--

2. So far as the question of benefit under Sections 41 and 53-A of Transfer of Property Act is concerned, we have given our considered, thought to the legal proposition involved and have come to the conclusion that such benefit cannot be extended to a party whose entire claim is based on fraud, intrigue and misrepresentation ……….

3. In the case of 'Talib Hussain & Ors v. Member Board of Revenue & Ors' 2003 SCMR 549, it is held that:

……… It goes without saying that as far as fraudulent transaction is concerned it has no foundation to stand and whenever such transaction is declared null and void then the whole series of such order Alongwith superstructure built upon it is bound to collapse. Reference in this behalf may be made to the case of Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC(Pak.) 104).

“c” It would also not be out of context to note that fraudulent transaction is considered to vitiate even most solemn proceedings as it has been held in the judgments (1) Ghias-ud-Din v. Iqbal Ahmed and 5 others (PLD 1975 Lahore 780), (2) Lal & another v. Muhammad Ibrahim (1993 SCMR 710) (3) Government of Sindh through Chief Secretary & others v. Khalil Ahmed & others (1994 SCMR 782), John Paul v. Irshad Ali & others (PLD 1997 Karachi 267), (5) Mst. Sarwari Begum v. Atta-ur-Rehman (1997 CLC 1500) and (6) Muhammad Yaqoob v. The State (1997 P Cr.LJ 1979).

“E” It is important to emphasis that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected.

1. In the case of Abdul Hameed through L.Rs & Ors v. Shamsuddin & Ors. PLD 2008 SC 140; it is held that:--

'C’……We are afraid, Mst. Feroza Khanum having stepped into the shoes of Abdul Hameed, who was not a lawful owner of the property, would not get a better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for interference.

1. It is germane to mention here that from the record it stood established the subject matter property, happened to be government property, and Muhammad Hashim (under whom the applicant/plaintiff is claiming) got the entry in record of the rights fraudulently without any allotment or reference to earlier outgoing seller hence in absence thereof the Muhammad Hashim was never a legal and lawful owner of the subject matter, capable to enter into any lawful transaction of transfer of property. Thus, protection of Section 41 of the Transfer of Property Act would not be available against a fraudulently obtained title or in respect of fraud committed with reference to Government property else it would be very easy for ill-doer to first arrange an entry and then to seek protection thereof by arranging a subsequent 'transfer'. To provide a legal protection to an ill-gotten or fraud is not the object of the law.

2. With regard to the stance that plaintiff has been condemned un-heard this legal plea is governed by the known principle of 'audi alteram partem' which, no doubt is followed by the Courts but it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. In the instant matter, the record shows that the concerned quarter on coming into notice about fraudulent entry in name of Muhammad Hashim exercised jurisdiction to cancel the same. In my view cancellation of such fraudulent entry was, in no way, caused any harm to the applicant/plaintiff because cancellation was of rout entry i.e in name of Muhammad Hashim who never challenged the same. The applicant/plaintiff, being transferee was/is to sail and sink with Muhammad Hashim. His claim, if any, lies against Muhammad Hashim particularly when title in name of Muhammad Hashim is no more disputed to neither be fraudulent nor even the present applicant/plaintiff sought any declaration about title of Muhammad Hashim which also means that he accepts the title of Muhammad Hashim to be fraudulent. Even otherwise, the principle of 'audi alteram partem' is not of universal application but would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands. I would like to take full advantage to make application of said principle of law clear by referring the judgment of Honourable Supreme Court of Pakistan, passed in the case of “Re-Justice Khurshid Anwar Bhinder & Ors v. Federation of Pakistan & another' (PLD 2010 SC 483). The operative and relevant portions thereof are reproduced hereunder:

……….. In Seneca's Medea, I tis said: “a judge is unjust who hears but one side of a case, even though he decides it justly'. Based on this, has been developed. 'Audi alteram partem' as a facet of natural justice'. (Seneca Medea r BC-AD 65). 'Audi alteram partem' means hear the other side; hear both sides. Under the rule, a person who is to decide must give the parties an opportunity of being heard before him and fair opportunity to those who are parties in the controversy for contradicting or correcting anything prejudicial to their view' (emphasis provided), (union ov India v. Tulsiram Patel AIR 1985 SC 1416 at p. 1460). The petitioners were admittedly not a party in the main controversy. Since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.Audi alteram partem' rule as such is not cast in a rigid mould and judicial decisions established that it may suffer situational modifications' (Emphasis provided). (Maneka Gandhi v. Union of India AIR 1978 SC 597). It may to be out of place to mention here that by now it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. Thus the rule may be discarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests' ……………… The 'audi alteram partem.' rule would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands ………….. Further is held:--

……………. A prima facie right to opportunity to be heard may be excluded by implication in the following cases:--

(a) When an authority is vested with wide discretion.

(b) When the maxim 'expressio unius est exclusion alterius' is involved

(c) Where absence of expectation of hearing exists

(d) When compulsive necessity so demands

(e) When nothing unfair can be inferred

(f) When advantage by protracting a proceeding is tried to be reaped

(g) When an order does not deprive a person of his right or liberty

(h) In case of arrest, search and seiure in criminal case

(i) In case of maintaining academic discipline

(j) In case of provisional selection to an academic course

(k) In case of enormous malpractices in selection process

(42) It must not be lost sight of that in the above mentioned 'exclusionary cases, the 'audi alteram parten' rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case ……. Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that application of said principle has its limitations. Where the person against whom an adverse is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with malafide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdrawn/cancel such order without affording an opportunity of personal hearing to the affected party. Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statue because no adverse action can be taken against a person without providing right of hearing to him. Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of a natural justice.

Thus, in view of above, plea so taken by the learned counsel for the applicant/plaintiff also appears to be of no help for the applicant/ plaintiff.

1. Even otherwise; the judgment(s) of both the Courts below appear to be well reasoned. It is pertinent to mention that learned trial Judge while deciding Issues No. 6, 7 and 8 has resolved the basic route of controversy with regard to subject mutated property hence it would be conducive to refer such answer on aforesaid issues:--

“ISSUES NOS. 6, 7 & 8:--

“These issues are very important to resolve the controversy of this suit and are also inter related with each other, as such firstly I discuss these issues together. The burden to prove these issues is upon the plaintiff. It is case of the plaintiff that sone Muhammad Hashim son of Abdul Hakeem was owner of one plot bearing city Survey No. 1206 admeasuring 2560 sq. ft. situated in Ward “B” Kot Ghulam Muhammad Town and his name was also entered in the Extract from property Register Card and the plaintiff purchased an area of 40 x 32= sq: ft: out of the said plot from said Muhammad Hashim through registered sale-deed dated 30.08.1997 and thereafter the plaintiff moved before the Defendant No. 1 for mutation of the suit plot in his name in the City Survey record and the same was allowed on 13.06.2001, but later-on the Defendant No. 1 on his own motion without hearing the plaintiff cancelled such mutation entry in the City Survey record, for which the plaintiff made application on 22.01.2002 to the Defendant No. 2, who issued Rubkari Bearing No. 704 dated 27.06.2002, intimating that the suit plot was a property reserved for “Tapedari Dera” and the same is also shown in the map. It was argued by the learned counsel for the plaintiff that the plaintiff is absolute legal owner of the suit plot under the registered sale-deed, which he had purchased from the original owner namely Muhammad Hashim and the Defendant No. 1 on his own motion cancelled the mutation entry entered into by him on the basis of said registered sale-deed in the City Survey record in the name of the plaintiff without hearing the plaintiff and as such the said act of the Defendant No. 1 is illegal and based on some malafide. On the other hand it was argued by the learned DDA for the defendants that the said Muhammad Hashim had no valid and legal title over the suit property and the entry in the name of Muhammad Hashim was entered in City Survey record without any title in his favour erroneously because the suit property is the Government property and reserved for Tapedari Dera and even the mutation entry in the city survey record does not create any valid and legal title over the suit property in favour of Muhammad Hashim, as such the purchase of suit property by the plaintiff through registered sale-deed from the said Muhammad Hashim is in violation of provisions of Transfer of Property Act. It was also argued by the learned DDA that the Defendant No. 1 withdrawn the attestation order as provided under Section 166 of Land Revenue Act, 1967, for which he had power to re-call such attestation. The plaintiff has filed this suit in which he has sought declaration that he is absolute legal owner of the suit plot under registered sale-deed and he is legally and lawfully entitled to have the mutation entry of the suit plot in the relevant city survey record. Admittedly, the plaintiff had purchased the suit plot/area from one Muhammad Hashim. through registered sale-deed only on the basis of mutation entry in the name of Muhammad Hashim in the city survey record. The only point that deserves consideration in this case is whether the said Muhammad Hashim being owner of the suit area only on the basis of mutation entry was competent to sell out the suit property to the plaintiff. It is apparent from the record that the name of Muhammad Hashim was entered in city survey record without any valid title and grant in his favour and even he or his fore-fathers were never granted the suit property at any time by the competent Government authority. This shows that the said Muhammad Hashim being peon of Revenue office fraudulently kept entry in his name in the city survey record in respect of suit plot without any legal and title documents. Thus it is clear that it was Government land and the entry entered in favour of Muhammad Hashim in respect of suit property was/is based on fraudulent. The Rubkari Bearing No. 704 dated 27.06.2002 (Ex:80/B) also speaks that the suit property was a Government land reserved for Tapedari Dera. Even the mutation does not create title but is primarily meant for fiscal purpose. Where the seller had secured a mutation of property in his name but there was no registered sale-deed, thus he had acquired no title in lands by mere mutation. Thus it is clear that the said Muhammad Hashim had no valid and legal title over the suit property and since the alleged original owner Muhammad Hashim was not lawful and true owner of the suit property, therefore., the alienation and transfer of suit property by such outgoing owner to plaintiff does not create any title right or interest in favour of plaintiff and as such the Defendant No. 1 had not acted illegally or malafide by cancelling the mutation entry in the name of the plaintiff from the city survey record, who had power to re-call such attestation order under the provision of 166 of Land Revenue Act, 1967. Even under the provisions of 22 of General Clauses Act, the authority, which passed such order, has also power to withdraw the same and for this purpose, hearing of the plaintiff was neither mandatory nor obligatory. That being so, I am of the considered view that the said Muhammad Hashim was neither lawful owner of the suit property, nor he was competent to sell out the same to the plaintiff on the basis of mutation entry because the mutation itself did not convey any title, as such the cancellation of mutation entry in favour of the plaintiff which based on registered sale-deed executed by the Muhammad Hashim in favour of plaintiff by the Defendant No. 1 is legal as mere sale of suit property on the basis of extract from city survey record by the Muhammad Hashim to the plaintiff is illegal and unlawful under the provisions of Transfer of Property Act, hence the plaintiff is not legally and lawfully entitled to have the mutation entry of suit property in the city survey record, therefore these issues are answered in negative.”

(underlining has been supplied for emphasis).

1. Moreover, perusal of judgment passed by appellate Court, it is held as under:--

“Upshot of the above discussed I am of the view that the learned trial Court has rightly held said Muhammad Hashim was neither lawful owner of the suit property nor he was competent to sell the same to plaintiff on the basis of mutation entry in his favour. The learned counsel for appellant has forcefully contended that the learned trial Court judge has relied upon the order dated. 4.5.2010 which has not been produced in the evidence. Needless to mention here that the order dated. 4.5.2010 through which the fraudulent entry in the name of Muhammad Hashim in the city survey record has been cancelled is the part of that inquiry which was initiated on knowing the fact of fraud committed by Muhammad Hashim, hence the order dated. 4.5.2010 passed on the entry is part and parcel of inquiry and the learned trial Court judge has rightly relied upon the order dated 4.5.2010. The learned trial Court judge while deciding the Issue No. 5 has rightly held that the alienation and transfer of suit property by such out-going owner to the plaintiff does not create any title, right or interest in favour of plaintiff as such the purchase of suit

property by the plaintiff through registered sale-deed from the said Muhammad Hashim is in violation of provision of Transfer of Property Act. Needless to mention here that the case laws relied by the learned counsel for appellant does not attracts to the case in hand.”

1. With regard to plea of learned counsel that revenue authorities are not competent to cancel the registered deed, on this proposition there is no cavil and undisputedly only Civil Court is competent to cancel the registered deed but here question is only with regard to the cancellation of mutation that was challenged by plaintiff/applicant but trial Court framed issues and discussed the same on evidence produced by both parties and while reaching at the conclusion, that said property was fraudulently mutated in favour of Muhammad Hashim hence one cannot be entitled to derive his legal character from a fraudulent transaction, therefore, this plea taken by learned counsel has no force. Besides, learned counsel for applicant has failed to point out any illegality or irregularity in impugned judgments.

2. These are the reasons of short order dated 22.10.2014, whereby instant Civil Revision was dismissed.

(R.A.) Revision dismissed

PLJ 2015 Karachi 229

Present: Salahuddin Panhwar, J.

SHAHZAD ALI and others--Appellants

versus

RAEES KHADIM HUSSAIN and 2 others--Respondents

Second Appeal No. 15 of 2005, decided on 4.12.2014.

Contract Act, 1872 (IX of 1872)--

----Ss. 10 & 11--Transfer of Property Act, (VI of 1882), S. 41--Cancellation of sale-deeds--Mutations were effected--Being influential persons, maneuvered agreement of sale to have been executed being an attorney of his wife--Legality of documents--Validity--One can insist enforcement of a contract but before insisting he is legally bound to establish competency of vendor because it is settled principle of law that one cannot give a better title then what he holds--Where status of executants as competent person is not established the contract cannot be said to be legal hence cannot be enforced--Registered document can only be declared to be null and void or cancelled if was established to be fraudulent or where it is established that it was either executed by incompetent person or was for without legal consideration--Unauthorized possession justified no legal right to keep a legal owner to approach Court for legal remedy hence suit was held to be maintainable by trial Court--Petition was allowed.

[Pp. 235, 236, 238 & 240] A, B, E, G & J

Contract Act, 1872 (IX of 1872)--

----S. 11--Void contract--Disqualification from contracting--Absence of legal authority always be taken as disqualification from contracting which will make contract void--No rights and liability can be attached to or arise out of void contract. [P. 236] C & D

2011 SCMR 837, ref.

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

----S. 18(d)--Failed to establish legal status as attorney--Not competent person to contract--Validity--Failure of suit because of imperfect title will not disturb remedy, provided by Section 18(d) of Specific Relief Act. [P. 237] F

Limitation Act, 1908 (IX of 1908)--

----Art. 113--Specific Relief Act, 1877--S. 41--Civil Procedure Code, (V of 1908), O. VII, R. 11--Specific performance of contract--Maintainability of suit--Limitation--Burden to prove--Limitation shall stand from fixed date or if no date is so fixed then from date of notice of refusal--If petition or suit is filed beyond limitation each day’s delay has to be explained and if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint.

[P. 239] H & I

M/s. Haq Nawaz Talpur and Naimatullah Soomro, Advocates for Appellants.

M/s. Sundardas and Wali Muhammad Khoso, Advocates for Respondents.

Mr. Ashfaque Nabi Kazi, Asstt.A.G.

Date of hearing: 30.10.2014.

Judgment

Through instant 2nd Appeal, the appellants have assailed the legality of judgment and decree dated 28th September 2005 and 3rd October 2005 passed by learned Additional District Judge, Shahdadpur in Civil Appeal. No. 04 of 2004 “Re-Rais Khadirn Hussain v. Bozai Jalaluddin and others” whereby while allowing appeal, judgment and decree dated 29.10.2003 and 04.11.2003 passed by learned trial Court (Senior Civil Judge, Shahdadpur), were set aside; consequently judgment and decree in favour of appellants were reversed whereas suit filed by Respondent No. 1 was decreed.

1. Succinctly, but relevant facts, for disposal of the instant appeal are that Respondent No. 3 was the owner of agricultural land Bearing S. No. 66 (1-29), S.No. 12; 13/1 to 3; 17/AB, 18, 20, 45, 47, 48, 49, 50, 51, 56, 57, 66 and 820 total area 7904 acres situated in Deh Jama Rayati, Taluka Shahdadpur, District Sanghar which, the Respondent No. 3, sold to the Respondent No. 5 through registered sale-deed on 24.5.1984 for a total consideration of Rs. 17250/ and possession was delivered to him. Respondent No. 3, subsequently sold the remaining property through different registered sale-deeds in the following manner:--

(i) On 04.6.1995 S. Nos. 45, 47, 48, 49, 820 area 19.37 acres to Appellant No. 4 Sajjad Ali for consideration of Rs. 239,1000/-;

(ii) On 04.6.1995 S.No. 49, 50, 51, 47 area 18-21 acres to Shehzad Ali, the Respondent No. 2 for consideration of Rs. 222,000/-;

(iii) On 04.6.1995 S.No. 50 (4-33) acres to Ali Nawaz and Niaz Ahmed, the Appellants No. 2 and 3 respectively for a consideration of Rs. 59,400/-;

(iv) On 04.6.1995 S.No. 12; 13/1 to 3 area 10-08 acres for consideration of Rs. 24,000/- to Abdul Hafeez and Moula Bux, the Respondents No. 5 and 7;

(v) On 04.6.1995 S. No. 20 (total area 9-03 acres) under sale 3.25 acres out of total area to Moula Bux, Appellant No. 7 for total consideration of Rs. 72,500/-;

(vi) On 04.6.1995 S. No. 17/B, area 6-31 acres to Abdul Hafiz, Abdul Razzak and Moula Bux (Respondents No. 5,6 and 7 respectively) for consideration of Rs. 135,500/-.

1. Accordingly, on basis of above registered sale-deeds the mutations were effected in record of the rights in names of purchasers. It was further pleaded that the Respondent No. 1, being an influential person, manoeuvred agreement of sale purporting to have been executed by Respondent No. 2, being an attorney of his wife Respondent No. 3 for above land. Sale agreement was executed on 19.7.1989 for consideration of Rs. 632,000/- out of which the-Respondent No. 1 claimed to have paid Rs. 400,000/- as earnest money to Respondent No. 2 and it was agreed that sale-deed would be completed on 01.01.1990. After about 7 years of above agreement, to sale the Respondent No. 1 filed FC Suit No. 53 of 1993 for Specific Performance of Contract in the Court of Senior Civil Judge, Shahdadpur as well as for cancellation of sale-deeds in favour of Appellants No. 1 to 7 on 21.7.1996.

2. The Respondent No. 1 to 7 also filed FC Suit No. 82 of 2001 on 05.11.2001 for Declaration, Possession and Mesne profits against the Respondent No. 1. According to them, appellants were owners of property as well as in possession but Respondent No. 1 unauthorizedly and forcibly occupied major portion of land measuring 60.4 acres out of the 79.04 acres of the property in question in Kharif 2001.

3. Parties filed their respective written statements wherein sticking with their respective stands. During proceedings of the suits, both suits were consolidated, thereby the FC Suit No. 53 of 1996 “Re-Rais Khadim Hussain Vs Bozai Jalaluddin & others was made as leading suit.

4. The trial Court framed following issues:--

(1) Whether there is any sale agreement in favour of Khadim Hussain (plaintiff in Suit No. 53/1996)?

(2) Whether Defendant No. 1 namely Bozai Jalaluddin received, part payment of Rs. 400,000/- [four lacs) towards sale consideration being attorney of Defendant No. 2 from the plaintiff Khadim Hussain?

(3) Whether the Defendant No. 1 failed to performance his part of contract?

(4) Whether plaintiff in Suit No. 82/2001 are exclusively owners of suit land?

(5) Whether registered sale-deeds in Suit No. 82/2001 are legal, valued?

(6) Whether plaintiff in FC Suit No. 82/01 are entitled for possession and mesne profits of suit land at the rate of Rs. 5000/- acres per year?

(7) Whether the Suit No. 53/1996 is maintainable?

(8) Whether the Suit No. 82/2001 is time barred?

(9) Whether plaintiff of FC Suit No. 53/1996 is entitled for relief claimed?

(10) Whether FC Suit No. 82/2001 is bad for non-joinder of the parties?

(11) What should the decree be?

1. At the trial, plaintiff Khadim Hussain examined himself and produced sale agreement in original, receipt; of Ks. 100,000/-, Bill of Abiyana, land revenue receipts of year 1995 and 1996. He also examined his witnesses Ghulam Hussain, Muhakamuddin, Muhammad Soomar who produced Khatas No. 172,174 and others and also produced land revenue/Abiyana receipt, certificate of possession, issued by Mukhtiarkar. PW Sobho was also examined while PW Muhammad Hussain filed his statement for closing the side on behalf of plaintiff.

2. Defendant Moula Bux examined himself and produced seven registered sale-deeds, Form VII (six in number) of suit property, 10 land revenue receipts, 2 Zakat receipts, and bill of Abiyana. DW Dr. Yar Muhammad was also examined who was guardian-ad-litem of Defendant No. 6 to 8. DW Ali Nawaz and Khan Muhammad were also examined and then defendants' side was dosed.

3. Thereafter, the learned trial Court judge heard arguments; recorded the judgment and decree, whereby dismissed the Suit No. 53/1996 while the Suit No. 82/2001 was decreed as prayed with direction that the plaintiffs are entitled for Mesne profits at rate of Rs. 1000/- per year per acre from the year 2000.

4. The Respondent No. 1 filed the Civil Appeal No. 4 of 2004 before the learned District Judge, Sanghar which was made over to the Court of Additional District Judge, Shahdadpur. The learned Additional District Judge, having heard the arguments, allowed the appeal of the Respondent No. 1 whereby setting aside judgment and decree of trial Court and in consequence suit of the Respondent No. 1 (Suit No. 53/1996) was decreed while that of appellants (Suit No. 82/2001) was dismissed.

5. Learned counsel for the appellants contended that learned appellate Judge failed to appreciate the evidence brought by the applicants; trial Court, while thrashing with evidence recorded finding in accordance with law; suit of the respondents was barred by limitation.

6. On other hand, the learned counsel for the respondents argued that appeal is not maintainable under the law; scope of 2nd appeal is very narrow, appellate Court has given finding on proper appreciation of evidence; respondents purchased suit property through sale agreement, possession was delivered to them; appeal is devoid of merits.

7. Both the learned lower Court (s) have disagreed with each other in respect of the conclusion (s)/consequence (s) of the framed Issues, therefore, it would be in all fairness to examine the all contested issues.

ISSUE No. 1, 2 & 3

1. These issues were crucial and the burden was upon the plaintiff/respondent Khadim Hussain to prove the same. I have examined the findings of both the Court(s) below on these issues. The discussion of the learned appellate Court towards application of the Articles 17 and 79 of the Qanun-e-Shahadat appear to be in line with the objective of these articles. However, both the learned lower Court (s) entirely failed in appreciating another very crucial legal aspect towards legality of the document. It is a matter of record that the plaintiff/respondent Khadim Hussain specifically claimed that he entered into agreement with Bozai Jalaluddin while considering him to be 'general attorney' of the principal i.e respondent Mst. Abida, particularly when he (Khadim Hussain) claimed that respondent Mst. Abida was also with Bozai Jalaluddin on the day of first meeting at house of Jalaluddin Bozai. In existence of such a claim the respondent Khadim Hussain was required under the law to have made inquiries about 'legal authority’ of Bozai Jalaluddin or should have entered into contract directly with respondent Mst. Abida, who, per claim of Khadim Hussain, was available there and was consenting to sell, as he admitted in his examination-in-chief and cross as under:--

'Such land was in name of Defendant No. 2 when I purchased, Jalaluddin sold out the suit land to me as a attorney of Defendant No. 2’

`When we reached at house of the Defendant No. 1, one Nizamuddin and Mst. Abida, Defendant No. 2 were present there’

1. Thus, it appears that the respondent Khadim Hussain did not act in good faith nor took reasonable care to ascertain that the transferor had power to make the transfer not acted personally. To take the refuge of Section 41 of the Transfer of Property Act, 1882 the Vendee must established that he inquired into title of his vendor right from point A to point Z i.e entire chain of ownership of vendor to see that there was no missing link in chain nor same was clouded by suspicious and doubtful circumstances. The Honourable Supreme Court of Pakistan in the case, reported as 2011 SCMR 837, held that:

Even otherwise the appellants cannot take refuge behind the provisions as enumerated in Section 41 of the Transfer of Property Act, 1882 as no precautionary measure has been taken to see as to whether any authentic and genuine power of attorney was ever executed on behalf of Mst. Yasmeen Khan (being minor)

1. It is germane to state that one can insist enforcement of a 'contract’ but before insisting he is legally bound to establish competency of the vendor because it is a settled principle of law that 'one cannot give a better title then what he/she holds'). Here a reference to Sections-10 & 11 of the Contract Act, being material, is reproduced hereunder:--

Sec. 10. What agreements are contracts.--All agreements are contracts it they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

1. Who are competent to contract.--Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law which he is subject.

To make an agreement a 'contract' it should be made by parties 'competent to contract'. This term should always be given due weight because in absence of competency one cannot attach 'legality' thereto else the term competent to contract shall loose its value. Further, the Transfer of Property Act only permits those `transfer' which are 'competently made' by 'legally authorized persons' hence within meaning of Section 11 of the Contract Act the absence of legal authority always be taken as 'disqualification from contracting' which will make a contract 'void'. Needless to add here that no rights and liabilities can be attached to or arise out of a void contract (2011 SCMR 837).

1. It is made clear here that it is not the blood relation which authorizes one to make other responsible for his acts/omissions and consequences thereof but the recognized authority of law and law. alone which legalize the acts/omission and consequences of one (agent), upon other (his/her principal). The respondent Khadim Hussain has been a beneficiary of the document (sale agreement) allegedly executed by Bozai Jalaluddin as general attorney; burden was upon him to have established such status of the executant but it is a matter of record that the respondent Khadim Hussain neither produced such document (attorney) nor attempted to lead any evidence to the effect that Bozai Jalaluddin was legally constituted 'attorney' of respondent Mst. Abida. Where the status of executant as, 'competent person’ is not established the contract cannot be said to be legal hence cannot be enforced. I am guided in my such view with the case laws, reported as 2010 SCMR 1066 wherein it was held by honourable Supreme Court that:

“Since the respondent was the beneficiary of the power of attorney therefore, it was the duty and obligation of beneficiary to prove execution of general power of attorney when its execution is denied by alleged executant of general power of attorney.

In another case, reported as 2012 SCMR-1, the honourable Supreme Court of Pakistan, held that:--

1. There are concurrent findings of facts reached by all three Courts below that power of attorney in favour of Sanuullah was neither produced in original nor it has been proved in accordance with law though the appellant was a beneficiary and was required to do so.

2. The respondent Khadim Hussain referred to the registered sale-deed executed by Bozai Jalauddin as attorney of respondent Mst. Abida, it would suffice to say that such attorney is dated 19.5.1994 while the agreement in favour of Khadim Hussain pertains to 19th July 1989 and even receipt, allegedly executed by Jalaluddin (not owner herself) is dated 29.19.1989 hence such subsequently executed 'attorney' would not legalize the earlier acts of Bozai Jalaluddin particularly when at no times respondent Mst. Abida (the owner of the lands) confirmed such acts to had been done under her authority.

3. In view of above discussion and legal position, I am of the clear that there could be no answer to Issue No. 1 except in 'negative' as was responded by trial Court.

4. Since in view of discussion regarding Issue No. 1, it stood established that respondent Khadim Hussain failed to establish legal status of Bozai Jalaluddin as 'attorney' of Defendant No. 2 hence this issue, needs no further discussion, and is answered as 'negative'.

5. Since from discussion regarding Issue No. 1, it stood clear that Bozai Jalaiuddin was not a 'competent person' to contract in respect of land in question at relevant time hence this issue became redundant. However, a failure of suit because of imperfect title will not disturb remedy, provided by Section 18(d) of the Specific Relief Act, 1877 which reads as under:

Sec. 18. Specific Relief' Act, 1877. Purchaser's rights' against vendor with imperfect title: Where a person contracts to sell or let certain property, having only an imperfect title “thereto, the purchaser or lessee (excepts otherwise provided, by this Chapter) has the following rights:--

(a) …

(b) …

(c) …

(d) where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereof, to his costs of the suit, and to a lien for such deposit, interest and costs, on the interest of the vendor or lessor in the property greed to be sold or let.

ISSUES NO.4, 5 & 6

1. The burden to prove these issues was upon the appellants who to prove their title produced registered sale-deed (s) which were executed either by owner herself or by her duly constituted General Attorney therefore, such a document of transfer was rightly held to be legal by the learned trial Court and findings of learned trial Court, being proper, are endorsed are correct.

2. The registered sale-deed(s) are legal document whereby a competent person can competently transfer his/her title for a legal consideration which, being legal, shall have a binding effect. A registered document can only be declared to be null and void or cancelled if the same is established to be fraudulent or where it is established that it was either executed by incompetent person or was for without legal consideration. Such relief can be sought by the executant (owner) of person, having legal character/status under owner or the person claiming an enforceable right. In the instant matter the owner Respondent No. 2 or her authorized agent did not challenge the register sale-deed (s) and since the document in favour of respondent Khadim Hussain, being not from competent person, became void hence the answer to this issue was properly concluded by trial Court as `affirmative’.

3. Since in view of discussions, made above, the legal status, of the plaintiffs of FC Suit No. 82 of 2001 stood established therefore, they are entitled for possession of their property from which they have been dispossessed. However, as regard the quantum of mesne profit the plaintiffs of FC Suit No. 82 of 2001 brought nothing on record to establish that rate of lease of the property in question would be Rs. 5000/- per acre per year, however, since it stood established that possession of the Respondent No. 1 was not authorized one therefore, the learned trial Court judge also rightly held mesne profit as Rs. 1000/- per acre per year.

ISSUE NO 7

1. I may add here that the issue of maintainability of the suit shall always consist of all aspects. Since the question of limitation is also a legal issue hence the plaintiff shall have to discharge such burden completely. It is the Article 113 of Limitation Act which specifies the limitation for specific performance of a contract as:

Article. 113. For specific performance of a contract. The date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance has been refused.

The above Article is clear in its meaning that limitation shall start from the fixed date or if no date is so fixed then from the date of notice of refusal. In the instant matter the date for registration was admittedly agreed as `1st January, 1990'. The respondent Khadim Hussain, in his examination-in-chief, that:

'On fixed date for registration of sale-deed, the defendants did not come at Shahdadpur, Thereafter, I went at Karachi but I came to know that defendants have been shifted to other place through neighbourers. Thereafter, I did not go to Karachi to defendants due to where about not known.

This clearly shows that the respondent Khadim Hussain was aware of the 'fixed date’ and even alleged shifting of the Respondent Nos. 2 and 3 but did not file any suit for enforcement of his rights till the time he acquired knowledge in year 1995 that present appellants have purchased the lands from Respondent Nos. 2 and 3. Since I am quite conscious of the legally established principle that if a petition or a suit etc. is filed beyond limitation each day's delay has to be explained and if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under R. 11 Order VII, CPC and if a petition or a suit etc. Reliance, if any case be made to the case of Hakim Muhammad Buta & another vs Habib Ahmed & others.

(PLD 1985 SC 153)

“As such if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under R. 11 Order VII, CPC.---Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves--In exceptional cases, a defendant would, however, be debarred from rising plea of limitation.---This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts”.

1. In view of above discussion, I am clear in my view that learned trial Court judge committed no illegality in holding the suit of respondent Khadim Hussain as barred by Limitation Act.

ISSUES NO.8 & 9

1. Since it stood established that the appellants legally purchased the land through registered sale-deed (s) and had claimed to have been dispossessed by force therefore, they had legally filed the suit for the relief (s) which are recognized by Specific Relief Act. Further, the evidence of Tapedar, examined by respondent Khadim Hussain also shows that possession of respondent Khadim Hussain was stated to be from last five years. Even otherwise an unauthorized possession justifies no legal right to keep a legal owner to approach Court for legal remedy hence their suit was rightly held to be maintainable by learned trial Court Judge.

2. Findings of the learned trial Court Judge on this issue are also in line with discussion in respect of the earlier issues, therefore, the respondent Khadim Hussain was rightly held to be not entitled for any relief on basis of instant suit.

ISSUE NO. 10

1. It would suffice for this issue that since no relief was sought against the Respondent Nos. 2 and 3 (Jalaluddin and Mst. Abida) hence they were not the necessary parties to the suit. Both these respondents namely jalaluddin and Mst. Abida did not deny the legality of registered sale-deed(s) in favour of appellants nor were claiming any interest therein after such sale hence they were rightly not arrayed as parties by appellants. The necessary party is one against whom a relief is sought or a judgment/decision in the suit causes an effect upon such person. Both these requisite ingredients are missing hence the findings of learned trial Court Judge on this issue were also proper.

2. In view of above discussion, I am of the clear view that that the judgment and decree of the learned trial Court were proper hence this appeal is accepted. In consequence thereof the judgment and decree of appellate Court is hereby set-aside while that of trial Court is maintained. However, there is no order as to costs.

3. With regard to CMA No. 264/2013 for production of general power of attorney and CMA No. 265/2013 for leading additional evidence, suffice to say that detail reasons on both legal aspects have been discussed in Para No. 18 and 22 hence both applications are also devoid of merits.

4. These are the detailed reasons whereby instant revision was allowed by short order dated. 30.10.2014.

(R.A.) Petition allowed

PLJ 2015 Karachi 241 (DB)

Present: Muhammad Ali Mazhar & Shahnawaz Tariq, JJ.

Mst. MARIUM TARIQ & others--Petitioners

versus

S.H.O. DEFENCE POLICE STATION,KARACHI and others--Respondents

C.P. No. D-3693 of 2013 & D-1105 of 2012, decided on 31.3.2015.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 363 & 34--Guardians and Wards Act, 1899 Ss. 12 & 25--Constitution of Pakistan, 1973, Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Quashing of FIR--Intervention of interpol or red and yellow notice--Allegations of kidnapping against real mother--Kidnapping from lawful guardianship--Accused without consent of her ex-husband fled away to america with her daughter aged about 2 ½ years--Admission in American University--Validity--Minor was in custody of mother since birth and there was no allegation that mother snatched custody from father--Mother and father both were natural guardians and one natural guardian cannot lodge F.I.R. of kidnapping against other natural guardian--Mother who was enjoying custody since birth of her daughter and whose right of hizanat or custody had been affirmed by three Courts cannot be held accused of kidnapping her own daughter--Being a natural guardian, father was also entitled for access and visitation rights to his daughter which right had been also given by Family Court and affirmed by Appellate Court as well as High Court in Constitutional Petition--Where is no absolute bar on powers of High Court to quash an F.I.R. and it is not always necessary to direct petitioner to first expend or exhaust remedy available under Section 249-A or 265-K, Cr.P.C.--Mother and father both were natural guardians and they cannot sue each other against charge of kidnapping from lawful guardianship--Despite having custody of a child by a mother, guardianship of father does not extinguish and he should have access to his children and he remains financially responsible for their maintenance and education even though they may be under care of their divorced mother--Guardianship of father does not cease while minor is in custody of mother and there is nothing in law to prevent mother to agitate her right of hizanat (custody of minor) when minor is with father--FIR was quashed.

[Pp. 248, 249, 252 & 253] C, D, E, F, I, J & L

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Pakistan Penal Code, (XLV of 1860), Ss. 363 & 34--Guardians and Wards Act, 1899, Ss. 12 & 25--Constituional petition--Quashing of FIR--Allegations of kidnapping against real mother--Lawful guardianship--Validity--High Court while exercising jurisdiction under Art. 199 of Constitution and Section 561-A Cr.P.C. can quash F.I.R. and proceedings in extenuating circumstances--Purpose of quashing F.I.R. under constitutional jurisdiction is to save a person from rigors of an unjustified investigation and proceedings and to prevent abuse of process of law or Court as ends of justice may require. [P. 252] G

Muhammadan Law--

----Custody of child is known as hizanat--Concept of hizanat in Hanafi Sect--Under Hanafi School of Mohammedan Law mother is entitled to custody of female child till age of puberty while in case of a son, period of hizanat is 7 years of age. [P. 248] A

Hizanat--

----Custody of minor--Mother is entitled in preference to father to custody during hizanat and she does not lose guardianship because she is no longer wife of her former husband. [P. 248] B

Khawaja Naveed Ahmed, Advocate for Petitioners (in C.P. No. D-3693/2013) and for Respondents No. 4 (in C.P. No. D-1105/2012).

Mr. Salahuddin Ahmed, Advocate for Petitioner (in C.P. No. D-1105/2012 and for Respondent No. 3 in C.P. No. D-3693/2013).

Mr. Ashfaq Rafiq Januja, Standing Counsel.

Mr. Sharfuddin Mangi, State Counsel.

Date of hearing: 27.10.2014.

Order

Muhammad Ali Mazhar J. This common judgment will dispose of aforementioned Constitutional petitions.

I. Brief facts of CP No. D-3693/2013.

This petition has been brought to quash FIR No. 632/2010 lodged by Syed Asad Mustufa Shafqat (Respondent No. 3) against the petitioners at P.S Defence, Karachi on 18.12.2010 under Sections 363 and 34, PPC. The Petitioner No. 1 was married to the Respondent No. 3 and out of wedlock Ayla Shafqat was born on 25.05.2008 in Huston, Texas USA. The Respondent No. 3 divorced the Petitioner No. 1 and filed an application under Section 25 of the Guardian & Ward Act in the family Court along with an application for interim custody under Section 12 of the above Act. During pendency, the Petitioner No. 1 was given admission in American university for Post-graduation in Dental Surgery with financial assistance. Since her career was at stake so she opted to join the university on the given date hence she left for USA along with her daughter who was also admitted in School where she is studying being American national by birth. Investigating Officer submitted Charge-sheet under Section 512, Cr.P.C. The learned Judicial Magistrate was pleased to acquit the parents of the petitioners under Section 249-A, Cr.P.C. The G&W case No. 59/2010 was decided by the learned Civil & Family Judge at Karachi South in favour of the Petitioner No. 1 and she was allowed to retain the custody of baby Ayla. The Respondent No. 3 preferred family Appeal but the appellate Court upheld the judgment of family Court. Being aggrieved, the Respondent No. 3 filed a Constitutional Petition No. 131/2013 and this Court was pleased to uphold the concurrent findings recorded below and the petition was disposed of with some directions to the Immigration Authority.

II. Brief facts of C.P. No. D-1105/2012.

The petitioner Syed Asad Mustufa Shafqat, ex-husband of Marium Tariq has prayed for the directions against the official respondents to issue the requisite red notice for arrest of Marium Tariq and Mir Ahmed Ali Tariq with a view to their extradition and yellow notices for search and recovery of minor Ayla Shafqat. The petitioner reiterated the same facts regarding the solemnization of marriage, divorce and filing of Guardian & Ward suit. However it was further contended that Marium Tariq denied the petitioner's access to his daughter and eventually the petitioner compelled to seek custody through Guardian and Ward Application No. 59 of 2010. The family Judge was pleased to allow visitation rights to the petitioner vide order dated 3.4.2010. The petitioner had also filed an application to restrain Marium Tariq from taking their daughter abroad and for deposit of their passports in the Family Court. During the pendency of the said application, Marium Tariq kidnapped the minor, Ayla Shafqat and took her to USA. She was assisted by her parents and her siblings. The petitioner lodged FIR No. 632/2010. Mir Tariq Yaqoob and Azra Tariq obtained bail while non-bailable warrants were issued against the absconding accused namely Marium Tariq, Najia Tariq and Mir Ahmed Ali Tariq but to no avail. It was confirmed by FIA (PISCES database) report that all three had left Pakistan therefore, intervention of the Interpol is required both for producing the accused persons before the trial Court and for retrieving the custody of the minor. On 10.05.2011, the learned IVth Judicial Magistrate was pleased to direct the Respondent No. 3 to cause the arrest of the aforementioned accused persons but no positive action was taken.

1. Khawaja Naveed Ahmed, the learned counsel for the petitioner in CP No. D-3693/2013 and for Respondent No. 4 in CP No. D-1105/2012 argued that no case could be registered under Section 363, PPC against a real mother for abducting her minor child. The FIR was lodged with mala fide intention to harass the petitioner so far as other petitioners are concerned, he argued that Petitioner No. 3 is residing in USA for last 13 years and he was not present in Pakistan at the time of divorce of his sister while the Petitioner No. 2 is elder sister of Petitioner No. 1 who has also nothing to do with matrimonial dispute or the guardianship case. The prosecution had submitted charge sheet without proper investigation. No law involves mother for abduction of her own child whom at least three Courts have granted custody. The proceedings emanating from aforesaid FIR are nothing but an abuse of process of the Court. So far as the petition 1105/2012 is concerned, he argued when the very basis of FIR is defective, illegal and abuse of process of the Court then there is no question of asking intervention of Interpol or red and yellow notice forms or the arrest of alleged accused persons. He further argued that since the petitioners are out of Pakistan hence this petition has been moved through special attorney which is maintainable and the attorney can look after and protect the interest of all the petitioners in their absence for the quashing FIR lodged illegally against the charge of kidnapping of real daughter who is in hizanat of her real mother. The copy of Special Power of Attorney executed in favour of the real father of the petitioners duly attested by Lance Jacobsen, Notary Public, State of Washington is available on record. It was further argued that Marium Tariq is very much willing to return back to Pakistan and she has no intention to deprive the Syed Asad Mustufa Shafqat from visitation rights granted by family Court but the Respondent No. 3 has complicated the matter by lodging false case of kidnapping against her with mala fide intention and ulterior motives. The learned counsel referred to the following case law:--

(1) PLD 2008 Lahore 533 (Kausar Parveen vs. State). Word “lawful guardian” in Section 361, PPC is used in wider sense including any person lawfully interested with the care or custody of the minor. Principle of dual guardianship of minor is by itself not repugnant to Islamic law or law of the land. Under such conception, guardianship of father does not cease while minor is in custody of mother and there is nothing in law to prevent mother to agitate her right of Hizanat (custody of minor) when minor is with father. Father and mother cannot prosecute each other on the charge of kidnapping of their own minor children.

(2) 2013 YLR 2716 (Yasmin Gul Khanani vs. Tariq Mehmood). No bar imposed on filing application under Section 561-A Cr.P.C. seeking quashing of FIR and proceedings emanating therefrom at any stage, provided aggrieved party was able to demonstrate by furnishing sufficient material that entire proceedings were false, frivolous, vexatious and had been initiated to abuse process of law and if such proceedings were not quashed, gross injustice, harm and injury might be caused to accused persons nominated therein.

(3) Unreported Order dated 18.12.2012 passed in CP No. D-583/2006 (Mst.Tasneem Abid Shaikh & another vs. SHO P.S Defence, Karachi & others). This petition was also filed through attorney for quashing FIR No. 135/2003 lodged by an ex-husband against his ex-wife. The learned division bench of this Court while relying upon a dictum of apex Court reported in 2008 PSC (Crl.) 959 (Abdul Hafeez vs. Usman Farooqui) found, the petition maintainable through attorney and quashed the FIR No. 135/2003.

1. Mr. Salahuddin Ahmed, the learned counsel for petitioner in CP No. D-1105/2012 and for Respondent No. 3 in CP No. D-3693/2013 argued that the Respondent No. 4 concealed the pendency of C.P. No. 1105/2012 in this Court. It was further contended that power of Attorney on the basis of which CP No. D-3693/2013 has been filed is not duly attested by the Embassy of Pakistan in USA. The petition has been filed to subvert the proceedings initiated pursuant to the orders passed in CP No. 1105 of 2012. The Respondent No. 4 Marium Tariq has also concealed that the family Court rejected her application to leave for USA and to take the minor beyond the jurisdiction but she in violation of her undertaking took the minor out of the jurisdiction of the family Court. The learned Family Judge allowed visitation rights to the father but Marium Tariq kidnapped the minor and took her to USA without the permission of petitioner Syed Asad Mustufa Shafqat. All the accused persons in the FIR assisted in this endeavor. It was further averred that this Court while dismissing the petition has directed the Petitioner No. 1 to abide by the orders of visitation and access of father to the minor child and further directed the immigration Authorities to take minor's passport at the airport as and when she reaches Pakistan and thereafter deposit the same with the Nazir of this Court for safe custody so she cannot leave Pakistan in future. Even this Court while adjudicating the custody matter recognized the unlawful act of Marium Tariq. In pursuance of orders passed in C.P. No. 1105 of 2012, FIA Interpol was directed to issue Red Warrants and Yellow Notices of the minor. The learned counsel further argued that since Marium Tariq committed an offence of kidrrapping her daughter hence Asad Mustufa Shafqat has rightly lodged the FIR and there is no lawful justification or ground available for quashing the FIR or the proceedings. The official respondents have no lawful right to refuse or delay provision of Interpol red and Yellow notice application forms to the petitioner or to the learned IVth Judicial Magistrate. In the peculiar circumstances, the petitioner is entitled to procure the issuance of Interpol red notices and yellow notices through intervention of this Court. He further argued that though this Court dismissed the petition (CP No.S-131/2013) filed by Asad Mustufa against the order dated 7.1.2013 passed by VIth Additional District Judge, Karachi South in Family Appeal No. 24/2012 but against that order CPLA No. 1606/2013 is pending in the Supreme Court.

2. The learned State counsel adopted the arguments of Mr. Salahuddin Ahmed Advocate while the learned Standing Counsel argued that the directions if any issued by this Court requiring the arrest or presence of Marium Tariq and or ward through Interpol red notices and yellow notices will be complied with.

3. All the learned counsel agreed that aforesaid petitions may be disposed of at katacha peshi stage and they argued their case extensively.

4. Heard the arguments. The preview of F.I.R. makes it obvious that the complainant Syed Asad Mustafa Shafquat in the beginning depicted the entire story of his marriage, birth of child and his divorce afterward he alleged that the petitioner Marium Tariq without his consent fled away to America with his daughter Alya Shafquat aged about 2 ½ years without his permission however in the latter part, he levelled allegations of kidnapping against a real mother and his ex-wife. The offence of kidnapping under Section 363, P.P.C. is punishable for a term which may extend to seven years. This offence has two limbs i.e. kidnapping a person from Pakistan or from lawful guardianship. In order to comprehend the compass and essence of this Section it is necessary to peep into Sections 359 to 361 P.P.C. at the beginning. For ready reference following Sections of P.P.C. are reproduced as under:--

359. Kidnapping. Kidnapping is of two kinds: Kidnapping from Pakistan and kidnapping from lawful guardianship.

360. Kidnapping form Pakistan. Whoever conveys any person beyond the limits of Pakistan without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Pakistan.

361. Kidnapping from lawful guardianship. Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship.

Explanation.The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody, of such child, unless such act is committed for an immoral or unlawful purpose.

363. Punishments for kidnapping. Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

1. If we look into Section 359, PPC it provides two kinds of kidnapping one is kidnapping from Pakistan and other is kidnapping from lawful guardianship which is in fact made punishable under Section 363, PPC. These two kinds of kidnapping have been defined separately under Section 360 and 361, PPC. Kidnapping from Pakistan means conveying any person beyond the limits of Pakistan without his consent or the consent of some other person authorized to consent on behalf of that person while kidnapping from lawful guardianship means to take or entice any minor under 14 years of age if a male or under 16 years of age if female or any person of unsound mind out of the keeping of lawful guardian without the consent of such guardian. The explanation of the word lawful guardian includes any person lawfully entrusted with the care or custody of such minor or other person. The Family Court did not disturb the custody with the mother which order was upheld by the appellate Court as well as this Court. It was contended that the Marium Tariq was given admission in American university for Post-graduation in Dental Surgery with financial assistance so under the force of circumstances, she left for USA along with her 2 ½ years daughter who could not be looked after properly in Pakistan in the absence of her real mother therefore, the element of mens rea is also missing. The Guardian Wards Case No. 59 of 2010 filed by the father of Ayla Shafqat was decided on 25.4.2012 while the F.I.R. was lodged by him on 18.12.2010. The learned Family Judge observed in the order that since birth Ayla Shafqat is in the custody of her mother. It is also a fact that while this Guardian Wards Suit was decided it was in the knowledge of Family Judge that Marium Tarique proceeded to U.S.A. along with her daughter even then the learned Family Judge is of the view that there was no cogent reason to disturb the current set-up of the minor hence the restoration of custody to the father was declined however being a father, Asad Shafqat was allowed visitation rights. Being aggrieved, this order was challenged by him in Family Appeal No. 24 of 2012 which was also dismissed vide order dated 7th January 2013, thereafter he filed C.P. No. S-131 of 2013 in this Court to challenge the concurrent findings recorded by two Courts below but vide order dated 12.8.2013, the petition was also dismissed however it was observed that in future the Respondent No. 1 (Marium Tarique) will not deny petitioner's access to his daughter. The learned judge also directed the Immigration Authorities that as and when the minor reaches to Pakistan they may take her passport at the Airport in their custody for safe deposit of the same with the Nazir of this Court so that minor will not leave Pakistan in future.

2. The custody of a child is known as “Hizanat”, the female entitlement to the custody is called “Hazina” and male entitlement is known as “Hain”. In the Guardian Ward case, the father of Ayla Shafqat (Respondent No. 3) himself stated that he belongs to Hanafi Sect, therefore the concept of Hizanat in Hanafi Sect would be quite noteworthy. Under the Hanafi School of Mohammedan Law mother is entitled to the custody of female child till the age of puberty while in the case of a son, the period of Hizanat is 7 years of age. The mother is entitled in preference to the father to the custody during Hizanat and she does not lose the guardianship because she is no longer wife of her former husband. It is an admitted fact that the minor was in the custody of mother since birth and there was no allegation that the mother snatched the custody from father. It is also an admitted fact that when the F.I.R. was lodged the age of daughter was 2½ years. The learned counsel of the complainant did not argue that Marium Tarique is disqualified from the right of Hizanat or Hizanat was terminated due to any such act committed which disentitled her from claiming or asserting her right of custody in preference of father. In the case in hand the mother and father both are natural guardians and one natural guardian cannot lodge the F.I.R. of kidnapping against the other natural guardian. In all probability, a mother who is enjoying custody since birth of her daughter and whose right of Hizanat or custody has been affirmed by three Courts cannot be held accuse of kidnapping her own daughter. However this important aspect cannot be ignored that being a natural guardian, father is also entitled for the access and visitation rights to his daughter which right has been also given by the Family Court and affirmed by the Appellate Court as well as this Court in the aforesaid Constitutional Petition. Under Section 43 of the Guardian & Wards Act a comprehensive procedure is provided for regulating, conduct or proceedings and enforcement of orders while Sections 44 and 45 of the same Act provides penalty for removal of Ward from jurisdiction and penalty for contumacy. It is an admitted fact that the Family Court passed the orders and granted visitation rights to the Respondent No. 3 but the orders were not implemented so in our view appropriate remedy is to approach Family Judge for the implementation of the orders which has not been done in this case but the father of child has filed C.P.No. D-1105 of 2012 for issuing directions against the F.I.A. an National Central Bureau and Interpol for issuing red and yellow notice forms for ensuring appearance of accused in Crime No. 632 of 2010.

3. All the juristic schools give first preference to a mother's claim to physical custody of her young child provided that she satisfies all the requirements. The father should have access to his children and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother. At this juncture we would like to put forward a judgment authored by one of us (Muhammad Ali Mazhar-J) in the case of “Muhammad Shafi alias Papan vs. State” reported in 2011 P.Cr.L.J. 1424 in which the allegation of kidnapping of a son was against a real father and he was convicted by the trial Court, however on appeal to this Court, he was acquitted of the charge. We would like to quote Paragraph (21) of the Judgment which is reproduced as under:

“21. A father cannot be held liable for kidnapping his own son being a natural guardian. Children are focus of gravity in Islamic Family tradition and law. When spouse are together, upbringing their children is paramount joint responsibility. Not only physical care and health, but emotional, educational and religious welfare and wellbeing are mutual responsibility. When spouses separate by divorce or annulment, these welfare responsibilities get also split according to best abilities of each parent. While fathers are vested with financial burden and legal guardianship roles, mothers are given role of physical care and emotive guardian of children. Inherently, Islamic system balances between multitude levels of children's need. The father should have access to his children and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother or one of her relations”.

1. Our Prophet Muhammad (peace be upon him) continually used to remind his followers of the status of the mother and the obligation of being good to one's parents. The honor which our religion Islam has given to mothers is beyond that found in any other religion, ideology or culture. All the verses of Quran and hadiths on mothers amply demonstrate the importance of this figure in Islam. The following narrations are most beautiful examples of righteous and noble position of the mother:

“A man came to the Prophet and said: O Messenger of Allah! Who from amongst mankind warrants the best companionship from me? He replied: “Your mother.” The man asked: Then who? So he replied: “Your mother.” The man then asked: Then who? So the Prophet replied again: “Your mother.” The man then asked: Then who? So he replied: “Then your father.” (Sahih Bukhari 5971 and Sahih Muslim 7/2). Commenting on this hadith, Shaykh Muhammad Ali Al-Hashimi notes: This hadith confirms that the Prophet (peace and blessings be upon him) gave precedence to kind treatment of one's mother over kind treatment of one's father (Al-Hashimi, The Ideal Muslimah, IIPH 2005, p. 165). Likewise, the late Grand Mufti of Saudi Arabia, Shaykh Abdul-Aziz Ibn Baz (d. 1999) comments on this hadith saying: So this necessitates that the mother is given three times the like of kindness and good treatment than the father. (Majmoo’ Fataawaa wa Maqalat Mutanawwi'ah). He also writes: The secret of her importance lies in the tremendous burden and responsibility that is placed upon her, and the difficulties that she has to shoulder responsibilities and difficulties some of which not even a man bears. This is why from the most important obligations upon a person is to show gratitude to the mother, and kindness and good companionship with her. And in this matter, she is to be given precedence over and above the father. The Prophet Muhammad (peace and blessings be upon him) also said in a famous narration: 'Paradise lies at the feet of your mother' [Musnad Ahmad, Sunan An-Nasa'i, Sunan Ibn Majah]. Shaykh Ibrahim Ibn Salih Al-Mahmud writes: Treat your mother with the best companionship, then your father; because paradise is under the mother's feet. It is related from Talhah ibn Mu'awiyah as-Salami who said: I came to the Prophet and said, “O Messenger of Allah, I want to perform Jihad in the way of Allah. He asked, “Is your mother alive?” I replied, “Yes.” The Prophet then said: “Cling to her feet, because paradise is there.” (at-Tabarani). Abdullah Ibn Abbas (d. 687CE), a companions of the Prophet and a great scholar of Islam, considered kind treatment of one's mother to be the best deed for strengthening or rectifying one's relation with God. He said: I know of no other deed that brings people closer to Allah than kind treatment and respect towards one's mother. [Al-Adab al-Mufrad Bukhari 1/45]. An even more powerful example is found in the statement of another one of the Prophet's companions, Abdullah Ibn 'Umar (d. 692CE), who was also a great scholar of Islam. It has been related that: Abdullah Ibn 'Umar saw a Yemeni man performing Tawaf (circumambulating the Ka'bah) while carrying his mother on his back. This man said to Abdullah Ibn 'Umar, “I am like a tame camel for her! I have carried her more than she carried me. Do you think I have paid her back, O Ibn 'Umar?” Abdullah Ibn 'Umar replied, “No, not even one contraction!”[Al-Adab al-Mufrad Bukhari 1/62]”. Reference: http:www.islamswomen.com & http:insideislam.wisc.edu

At this moment it would be most advantageous and apt to quote Verse 15, Chapter 46, Surah al-Ahqaf, (Al-Quran):

“15. And We have enjoined on man to be dutiful and kind to his parents. His mother bears him with hardship. And she brings him forth with hardship, and the bearing of him, and the weaning of him [lasts] thirty months, till when he attains full strength and reaches forty years, he says: “My Lord! Grant me the power and ability that I may be grateful for Your Favor which You have bestowed upon me and upon my parents, and that I may do righteous good deeds, such as please You, and make my offspring good. Truly, I have turned to You in repentance, and truly, I am one of the Muslims [submitting to Your Will]”.

http: / / www.al-islam.org/enlightening-commentary-light-holy-quran-vol-17/surah-al-ahqaf-chapter-46-verses-1-21

1. The High Court while exercising jurisdiction under Article 199 of the Constitution and Section 561-A، Cr.P.C. can quash the F.I.R. and proceedings in the extenuating circumstances. The purpose of quashing F.I.R. under the constitutional jurisdiction is to save a person from the rigors of an unjustified investigation and proceedings and to prevent the abuse of process of law or Court as the ends of justice may require. There is no absolute bar on the powers of High Court to quash an F.I.R. and it is not always necessary to direct the petitioner to first expend or exhaust the remedy available under Section 249-A or 265-K, Cr.P.C. It is cardinal principle of law that every criminal case should be adjudged on its own facts. The main considerations to be kept in mind would be whether the continuance of proceedings would be a futile exercise and abuse of process of Court. If the facts admitted and patent on record that no offence is made out then it would amount to abuse of process of law to allow the prosecution to continue the trial. According to the dictum laid down in the case of “M.S. Khowaja vs. State” reported in PLD 1965 SC 287, the apex Court held that to quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue that proceedings would defeat the ends of justice or in other words would either operate or perpetuate an injustice. To find an “abuse”, it would be necessary to see in the proceedings, a perversion of the purpose of law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results.

2. In the case in hand a real mother is accused of kidnapping of her own daughter during hizanat period which is a divine right. In all conscience, consent of 2½ daughter for leaving abroad with her real mother is immaterial in this case especially for the reason that since the birth, daughter was in custody of mother and the age of ward do show that neither she could be asked to offer any consent nor she could show any disagreement or displeasure on moving with her real mother. So far as the consent of father is concerned, the reply is so straightforward that the mother and father both are natural guardians and they cannot sue each other against the charge of kidnapping from lawful guardianship. In the F.I.R. the main allegation against Marium Tariq is traveling abroad with the complainant's daughter without his permission which ultimately culminated into F.I.R. with the charge of kidnapping. By the looks of it, no offence is made out under Section 363, P.P.C. The letter of law articulates that provision of Section 363 P.P.C is meant to protect and espouse the rights of parents and not to exploit it against each other as a tool of victimization, persecution and oppression after their divorce. The concept of parental kidnapping in the foreign jurisdiction is altogether different than our country. Here the concept of keep hold of custody is primarily dealt with in view of Islamic jurisprudential inferences of hizanat then the welfare of minor. At the same time an important facet cannot be disregarded that despite having custody of a child by a mother, the guardianship of father does not extinguish and he should have access to his children and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother. We also concur the view taken in the case of Kausar Parveen (supra) that the guardianship of father does not cease while minor is in custody of mother and there is nothing in law to prevent mother to agitate her right of Hizanat (custody of minor) when minor is with father.

3. The family judge has already decided the custody matter. The complainant/Respondent No. 3 has been given visitation rights and in case of non-implementation of order, the father could approach to the family Court for implementation of order and invoke the provisions highlighted above for the redress. In C.P. No. S-131 of 2013, the learned judge of this Court has already directed the Immigration Authorities that as and when the minor reaches to Pakistan they may take her passport at the Airport in their custody for safe deposit of the same with the Nazir of this Court so that minor will not leave Pakistan in future. The Assistant Registrar of this Court was also directed to send a copy of order to Immigration Authorities for necessary action. The intervention of Interpol may be achieved through family Court for implementation of visitation rights order rather than ensuring attendance through Interpol in Criminal Case No. 395/2011 arising from F.I.R No. 632/2010 which is nothing but an abuse of process of Court and law and we are sanguine that if proceedings are allowed to continue it would defeat the ends of justice and as a result would perpetuate injustice or miscarriage of justice.

4. In the wake of above discussion, both Constitutional Petitions are disposed of in the following terms:--

a. The F.I.R. No. 632/2010, lodged under Sections 363 & 34 P.P.C at P.S Defence, Karachi is quashed with all consequential proceedings initiated by IVth learned Judicial Magistrate, Karachi South in Criminal Case No. 359/2011.

b. Since we have quashed the F.I.R. with consequential proceedings hence the intervention of Interpol cannot be ordered for ensuring attendance in the criminal case. As a result, C.P.No-D-1105/2012 is disposed of in the terms

that the petitioner may first approach to the family Court for the implementation of visitations rights order and in the event of non-compliance, he may apply to the family Court for the directions to issue Interpol red and yellow notice forms for ensuring attendance of Ayla Shafqat in Court and if any such order is passed by the family judge in accordance with law, the Secretary, Ministry of Interior, Government of Pakistan, Director General F.I.A and Director National Central Bureau, International Criminal Police Organization [Interpol] F.I.A shall make sure the execution of such orders failing which, the petitioner may approach to this Court for necessary directions.

c. All pending applications are also disposed of.

(R.A.) Petitions disposed of

PLJ 2015 Karachi 254 (DB)

Present: Muhammad Ali Mazhar & Shahab Sarki, JJ.

SyedQAIM ALI SHAH--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN through Secretary,Islamabad and 3 others--Respondents

C.P. No. D-6567 of 2014, decided on 20.2.2015.

Decision of Commission--

----Difference of opinion among its members--Validity--Opinion of majority shall prevail and decision of commission shall be expressed in terms of opinion of majority. [P. 262] A

Representation of the People Act, 1976--

----Ss. 58 & 3--Constitution of Pakistan, 1973, Arts. 219(b)--Transfer application before election commission--Interim order--One of members of commission was not in attendance--No adverse effect--Power of commission--Validity--Transfer application of petitioner was placed before Election Commission of Pakistan i.e. chairman and three members who had passed interim order--Under Art. 219 of Constitution commission is charged with duty to appoint election tribunals so transfer application would have been placed before commission as it was done at time of passing of interim order by commission and in absence of other members of commission, C.E.C. could not decide transfer application single handedly--Powers of transfer also vests in election commission which are akin and or ancillary and incidental to its main powers of appointing election tribunal bearing in mind Art. 219 of Constitution--It is also a settled principle that where any orders or judgments passed by any Court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances High Courts are justified in exercising its constitutional jurisdiction to rectify same--Any error on its part in understanding law, in applying it or in laying down law can and must be corrected in constitutional jurisdiction. [Pp. 262, 263 & 264] B, C, D & I

Constitution ofPakistan, 1973--

----Art. 199--Infringement of law--It is well known that Art. 199 of Constitution casts an obligation to act in aid of law and protect rights within framework of constitution against infringement of law and constitution. [P. 264] E

Constitution ofPakistan, 1973--

----Art. 199--Constitutional power and jurisdiction--It is settled principles of constitutional interpretation that provision enshrined in constitution shall prevail notwithstanding anything contrary contained any piece of subordinate legislation. [P. 264] F

Constitutional Provision--

----In case of conflict between any provision of constitution and subordinate piece of legislation on a subject, constitutional provision will prevail over latter, subordinate legislation cannot run contrary to constitutional provision. [P. 264] G

Constitutional Instrument--

----It is an elementary rule of construction of constitutional instrument that effect should be given to every part and every word of constitution. [P. 264] H

M/s Farooq H. Naek, Asadullah Channa and Owais Abro, Advocates for Petitioner.

Mr. Muhammad Aslam Bhutta, Advocatae for Respondent No. 3.

Mr. Ainuddin, D.A.G. & Mr. Abdul Sadiq Tanoli, Standing Counsel.

Syed Rashid Hussain, Deputy Director and Abdullah Hanjrah, Law Officer, Election Commission of Pakistan.

Date of hearing: 23.1.2015.

Order

Muhammad Ali Mazhar, J.--This Constitutional Petition has been brought to challenge an order dated 18.12.2014 passed by the Respondent No. 2 on the Transfer Application No. 1/2014 filed by the petitioner under Section 58 of the Representation of the People Act, 1976.

1. The petitioner was a candidate for Provincial Assembly 29, Khairpur-1, Sindh for the Election 2013 whereas the Respondent No. 3 was also candidate for the same constituency. The petitioner was declared returned candidate by the Election Commission of Pakistan. Being aggrieved, the Respondent No. 3 challenged the result of election and filed election petition which was transferred to the election tribunal at Sukkur for adjudication and marked as Election Petition No. 149/2013 thereafter it was transferred to Respondent No. 4 and renumbered as Election Petition No. 13/2013.

2. The petitioner had filed his written statement and denied the allegations. The Respondent No. 4 reserved the judgment but instead of announcing judgment, he issued show-cause notice on its own motion to the petitioner. The petitioner filed a transfer application under Section 58 of the Representation of the People Act, 1976 and levelled allegations of biasness against the Tribunal. Vide order dated 12.12.2014, the Election Commission of Pakistan was pleased to call the comments and also directed the Election Tribunal not to pass any order in the election petition pending before him. However on 18.12.2014, the Respondent No. 2 dismissed the Transfer Application.

3. The learned counsel for the petitioner argued that after 18th amendment in the Constitution, the word “Commission” has been substituted for the word “Commissioner” under Article 219 of the Constitution and now the powers of election commissioner vests in the election commission. The impugned order is nullity in the eye of Constitution and law. So far as the grounds of transfer agitated in the transfer application before the commission, he argued that the Respondent No. 2 failed to appreciate that the Presiding Officer of the Election Tribunal has always had bias and prejudice towards the leadership of Pakistan People's Party at different times in different cases but the Respondent No. 2 failed to take note of the conduct of the Presiding Officer of the election tribunal. It was also contended that Section 58 of Representation of People Act cannot override the constitutional provisions when under the constitutional mandate only commission is empowered to hear and decide the transfer application and the learned Chief Election Commission could not pass the order alone. He further argued that earlier the same transfer application was put up before the commission when notice was issued and tribunal was directed not to pass any order but subsequently in absence of other members of commission, the Respondent No. 2 alone heard and dismissed the transfer application which order is corum non judice. In support of his contention, he referred to the following case law:--

(1) PLD 2004 SC 600 (All Pakistan Newspapers Society v. Federation of Pakistan). Needless to observe that in the administration of justice determination of the jurisdiction by the Court seized with the matter is one of the important elements because if justice has been provided basing upon corum non judice orders, it would have no legal sanction behind it.

(2) PLD 2007 S.C. 369 (Imtiaz Ahmed Lali v. Ghulam Muhamamd Lali). It may also be noted that vide amendment on 6th November, 2002, the provision of Article 8D (2) (i) of the Election Order, 2002 have been brought in consonance with the provisions of the Constitution. Essentially the subordinate Legislature cannot run contrary to the Constitutional provisions.

(3) 2011 SCMR 1084 (Dr.Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso & others). Petition under Article 199 of the Constitution before High Court for challenging the order of Election Commission was competent and maintainable in law. Order passed by Election Commission was arbitrary and result of patent misreading of record and was not open to challenge before Election Tribunal by way of remedy of election petition under Section 52 of Representation of the People Act, 176.

(4) 2012 SCMR 448 (Imran Khan & others v. Election Commission of Pakistan & others). It is matter of great concern that Bye-elections of the following Members of Senate, National Assembly and Provincial Assemblies were conducted by the Election Commissioner although after the 18th Constitutional Amendment such elections were to be organized under Article 219(b) of the Constitution of Islamic Republic of Pakistan 1973 by the Election Commission. According to Article 218(2) of the Constitution, the Election Commission shall consist of (a) Commissioner who shall be the Chairman of the Commission, and (b) four Members, each of whom has been a Judge of a High Court from each Province. There is no two opinions that the above elections were not organized by the Commission.

(5) 2014 SCMR 1524 (Abdul Majeed Khan through L.Rs v. Ms.Maheen Begum & others). Article 199. Constitutional jurisdiction of the High Court. Scope. Orders/judgments passed by a lower Court or authority without jurisdiction. Such orders/judgments were deemed to have been passed illegally and the High Court would be justified in exercising its constitutional jurisdiction to rectify the same. It is also a settled principle that where any orders or judgments passed by any Court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same, thus, in the instant case the High Court has rightly exercised its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, reliance can be placed upon the cases of Noor Muhammad Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708) and Haji Noorwar Jan v. Senior Member, Board of Revenue, NWFP Peshawar and 4 others (PLD 1991 SC 131), the relevant portions therefrom are reproduced herein below:--

“8…….It was further observed by this Court that any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law……….”

And, “19. The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it any laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law……..”

1. The learned counsel for the Respondent No. 3 argued that the petitioner has approached this Court to subvert the process of law and is seeking the premium of his own wrongs committed on the day of general election. Prior to this petition, he levelled so many allegations against the Election Tribunal Sukkur and now he levelled so many allegations against the Election Tribunal Karachi and filed the transfer petition which was dismissed. He further argued that the Respondent No. 2 can pass order according with law. This Court cannot entertain this petition to decide the election dispute in view of the bar contained under Article 225 of the Constitution. He relied upon the case reported in PLD 2013 Sindh 117 (Syeda Waheeda Shah v. Election Commission of Pakistan), in which the learned division bench of this Court held that the Chief Election Commissioner (CEC) alone had jurisdiction to pass order under Section 100 of Representation of the People Act, 1976, but not the Commission. Disqualification of a candidate would take place only by an order passed to such effect by Chief Election Commissioner. While referring to the aforesaid precedent, the learned counsel argued that the divisional bench of this Court had set aside the disqualification order of the Waheeda Shah passed by the Commission on the premise that powers under Section 100 of Representation of People Act could be exercised only by the Chief Election Commissioner. However it was left open that Chief Election Commissioner in his discretion can pass an order after providing an adequate opportunity of hearing.

2. The learned DAG argued that the petition is not maintainable. This Court has no jurisdiction to entertain the petition against the Election Commission. The Constitutional jurisdiction under Article 199 cannot be exercised in derogation of Article 225. He further argued that there was no need or presence of other Members of the Commission as Section 58 of the Representation of the Peoples Act, 1976 empowered the learned Chief Commissioner to transfer any election petition from one Tribunal to another Tribunal. He further argued that the election disputes are resolved in view of Article 225 of the Constitution and procedure for resolving the election disputes is well defined under Chapter VII of the Representation of the People Act, 1976. It was further contended that after promulgation of 18th Amendment in the Constitution, no doubt the word “Commission” has been substituted for the word “Commissioner” in Article 219 and 221 of the Constitution but the Election Disputes are still resolved under Article 225 which has not been amended yet. Even no amendment is made under Section 58 of the Representation of the People Act, 1976 in which powers of transfer are vested in the Commissioner without any change. The learned DAG referred to a judgment reported in PLD 1999 Lahore 181 (Shahid Rashid v. Nasir Siddique Alvi & others) which dealt with a constitution petition filed for seeking transfer of election petition to some other Election Tribunal. Contention of petitioner was that Election Tribunal passed number of orders which created genuine apprehension in the mind of the petitioner that he will not get fair and impartial trial of the Election petition. The Court held that nothing on record is available to indicate Election Tribunal was not proceeding impartially or he had inclination towards the respondent. Election Tribunal having dismissed earlier application of respondent by a detailed order it had to justify his order to be passed on fresh application for stay. Election Tribunal had to jealously guard his reputation. It was further held that petitioner failed to make out a case in the constitutional jurisdiction for interference therefore the petition was dismissed.

3. Due to scarcity and or to save the time, the learned counsel representing the parties had agreed that this petition may be heard and decided at Katacha Peshi stage and argued the case extensively. The bone of contention between the parties is whether the Respondent No. 2 could singly decide the transfer application moved by the petitioner or that the transfer application should have been heard and decided by the Election Commission of Pakistan and not by the Chief Election Commissioner alone. Earlier to the 18th Constitutional Amendment, Article 219 of the Constitution was germane to the duties of Commissioner. However, by virtue of 18th Amendment in the Constitution notified on 20.4.2010 the word “Commission” was substituted for the word “Commissioner”. For ready reference Article 219 of the Constitution is reproduced as under:

“219. Duties of Commissioner.--The Commission shall be charged with the duty of:--

(a) preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually;

(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and

(c) appointing Election Tribunals;

(d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and

(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament):

Provided that till such time as the members of the Commission are first appointed in accordance with the provisions of Paragraph (b) of clause (2) of Article 218 pursuant to the Constitution (Eighteenth Amendment) Act, 2010, and enter upon their office, the Commissioner shall remain charged with the duties enumerated in Paragraphs (a), (b) and (c) of this Article”.

1. It is clear from the aforesaid Article that prior to the amendment the duties enumerated under Article 219 were to be performed by the Commissioner singlehandedly and solitarily, but now the said duties are to be performed by the Commission constituted under Article 218 of the Constitution. The Election Commission is charged with the duty to organize and conduct the elections and to make such arrangement as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. Further duties of the Commission are provided under Article 219 which includes the task of preparing electoral rolls for election, organizing and conducting election to the Senate and holding of general election to the National Assembly and Provincial Assembly and local government including appointment of election tribunals. Prior to 18th Amendment the election tribunals were to be appointed by the Commissioner but after the 18th Amendment the appointment of election tribunals is now the duty of Commission. Counsel for the respondent though not disputed the constitutional amendment but they focused their arguments to the premise that under Representation of Peoples Act, 1976, chapter VII pertains to the election disputes and Section 58 confers the powers of transfer to the Commissioner as despite constitutional amendment there was no amendment made in Section 58, so the learned Election Commissioner may exercise his powers of transfer solely without the presence of other learned members of the commission. To appreciate this contention, let us examine and reproduce the procedure of the commission provided under Section 3 of the ROPA as under:--

2. Procedure of the Commission.--(1) Subject to the provisions of this section, the Commission shall regulate its procedure.

(2) If, upon any matter requiring a decision of the Commission, there is difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Commission shall be expressed in terms of the opinion of the majority.

(3) The Commission may exercise its powers and perform its functions notwithstanding that there is a vacancy in the office of any one of its members or that any one of its members is, for any reason, unable to attend its proceedings and the decision of the other two members shall have the effect of the decision of the Commission:

Provided that, in the event of a difference of opinion between the two members attending the proceedings of the Commission, the matter shall be placed for decision before the Commission.

1. The above procedure envisions that the commission shall regulate its procedure, however if upon any matter requiring a decision of the commission there is a difference of opinion among its members, the opinion of the majority shall prevail and the decision of the commission shall be expressed in terms of the opinion of the majority. It is further envisaged that the commission may exercise its powers and perform its functions notwithstanding that there is vacancy in the office of any one of its members or that any one of its members is, for any reason, unable to attend its proceedings and the decision of the other two members shall have the effect of decision of the commission and in the event of a difference of opinion between the two members attending the proceedings of the Commission, the matter shall be placed for decision before the Commission. It is matter of record that the transfer application of the petitioner was placed before the Election Commission of Pakistan i.e. the learned Chairman and three Members who had passed the following interim order:--

“ORDER

Comments of learned Election Tribunal may be sought immediately through fax, etc. and notices be issued to respondents for 15.12.2014. Meanwhile, the learned Election Tribunal is directed not to pass any order in the petition pending before him. Adjourned to 15.12.2014 at 11.30 a.m.

Sd/- (Mr. Justice Sardar Muhammad Raza) Chairman

Sd/- (Mur. Justice (R) Muhammad Roshan Eassani) Member

Sd/- (Mr. Justice (R) Riaz Kayani) Member

Sd/- (Mr. Justice (R) Fazal-ur-Rehman) Member

1. It is also a matter of record that the transfer application was filed before the election commission and not before the Commissioner however, the impugned order dated 18.12.2014 shows that the transfer application was fixed before the learned Chief Election Commissioner of Pakistan, which was dismissed. The interim order was passed by the learned Chairman along with three other learned members. May be on that date one of the learned members of the commission was not in attendance but it would have no adverse effect in view of sub-section (3) of Section 3 of Representation of People Act. In our view under Article 219 of the Constitution the commission is charged with the duty to appoint election tribunals so the transfer application should have been placed before the commission as it was done at the time of passing of interim order by the learned commission and in absence of the other learned members of the commission, the learned Chief Election Commissioner could not decide the transfer application singlehandedly. The powers of transfer the proceedings from one forum to another are somewhat administrative and supervisory in nature. At this moment in time the appointing authority of the election tribunal is the Election Commission and not the Commissioner alone therefore the powers of transfer also vests in the Election Commission which are akin and or ancillary and incidental to its main powers of appointing the election tribunal bearing in mind Article 219 of the Constitution. The determination of the jurisdiction is one of the important elements, if justice is based on corum non judice orders, it would have no legal sanction behind it.

2. It is well known that Article 199 of the Constitution casts an obligation to act in aid of law and protect the rights within the framework of the constitution against the infringement of law and constitution. All laws fall within encompass of sub-constitution legislation and they cannot claim superiority over the constitutional power and jurisdiction vested under Article 199 of the Constitution. The constitution being supreme must obviously prevail. The Courts derive powers from the constitution and function under it. It is settled principles of constitutional interpretation that provision enshrined in the constitution shall prevail notwithstanding anything contrary contained any piece of subordinate legislation. In case of conflict between any provision of constitution and the subordinate piece of legislation on a subject, the constitutional provision will prevail over the latter, subordinate legislation cannot run contrary to constitutional provision. It is an elementary rule of construction of constitutional instrument that effect should be given to every part and every word of the constitution.

3. If we look into the precedents quoted by the learned counsel for the petitioner and the ratio expounded and or deducible therefrom, the apex Court held that if justice has been provided basing upon corum non judice orders, it would have no legal sanction behind it. After the 18th Constitutional Amendment elections are to be organized under Article 219 (b) of the Constitution of Islamic Republic of Pakistan, 1973 by the Election Commission. The subordinate Legislature cannot run contrary to the Constitutional provisions. It is also a settled principle that where any orders or judgments passed by any Court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left unconnected, it will result in subverting the rule of law.

4. The precedent referred to by the learned DAG is distinguishable and not attracting to the facts and circumstances of this case so far as the case of Syeda Waheeda Shah decided by the learned division bench of this Court is concerned, the appeal is pending in the-apex Court where the leave has been granted. Even otherwise, the said case draw a parallel to the powers exercised by the commission under Section 103AA for declaring a poll void and disqualification on account of certain offences under 100 of ROPA, The commission by a common order had declared the poll void and also disqualified the said petitioner. The learned division bench upheld the order passed under Section 103AA but set aside the order to the extent of disqualification only keeping in view the minutiae of Section 100 of ROPA and held that Chief Election Commissioner (CEC) alone had jurisdiction to pass order under Section 100 of Representation of the People Act, 1976, but not the Commission. However it was left open to the learned Chief Election Commissioner in his discretion to pass an order after providing an adequate opportunity of hearing. With all humility and self-effacement, we would like distinguish that matter in issue before us is the effect of 18th .Constitutional Amendment made under Article 219 of the Constitution in connection with the duty of Election Commission viz-a-viz. the powers to transfer the election petition as envisioned under Section 58 of the ROPA and after due deliberation we have no disinclination in our mind to comprehend that niceties of Section 58 cannot predominate or disregard the constitutional amendment.

5. At this juncture, we would also like to be benefited by the dictum laid down by the apex Court in the case of Sindh High Court Bar Association reported in PLD 2009 S.C 879 that “each and every organ of the State is bound to discharge its duties within the command of the Constitution.” It was further held that “Constitution is a social binding contract. Conduct of all organs has to be in terms of constitution subject to the condition that you accept the Constitution from the core of your heart. Nobody is above the Constitution and cannot imagine to do anything in violation of the Constitution and rule of law.” In the case of Arshad Mehmood and others V.S Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others reported in PLD 2005 S.C 193, the Court held “while interpreting Constitutional provisions Courts should keep in mind, social setting of the country, growing requirements of the Society/nation, burning problems of the day and the complex issues, facing the people, which the Legislature in its wisdom through legislation seeks to solve. Judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.” While in the case of Government of Balochistan through Additional Chief Secretary VS AzizuIIah Memon and 16 others reported in PLD 1993 Supreme Court 341 it was held that “The interpretation of Constitution attracts most of the principles employed in interpreting the statutes, but care has to be taken that it is not restrictive, pedantic or limited. Unlike other enactments the Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare and amity among the citizens and the nations abroad. It is the basic structure on which the entire edifice is built and therefore it has to be interpreted in a manner to keep it alive and blossom in every atmosphere and in every situation”. In the case of Messrs Al-Raham Travels and Tours (Pvt) Ltd. And others V.S Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others reported in 2011 SCMR 1621, apex Court held “Constitution is a living organism and has to be interpreted to keep alive the traditions of past blended in the happening of present and keeping an eye on the future as well. Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious. Constitution is to be interpreted liberally and saved from cosmetic circumscription and construction. Constitution is not a document of past or present, so it is to be interpreted in a manner to meet the changing conditions of socio-religio and economic dynamics of the State”.

6. In the wake of above discussion, the petition is admitted to regular hearing and allowed. Consequently, the impugned order passed by the Respondent No. 2 on 18.12.2014 (CMA No. 1/2014 in Election Petition No. 149/2013--New Election Petition No. 13/2013) is set aside and matter is remanded back to the learned Election Commission with the directions to decide the transfer application afresh preferably within a period of 20 days. Till such time the transfer application is decided by the Election Commission, the proceedings before learned Election Tribunal will remain suspended.

(R.A.) Petition allowed

PLJ 2015 Karachi 266 (DB)

Present: Muhammad Ali Mazhar & Shaukat Ali Memon, JJ.

SHUMAIL SIKANDAR--Petitioner

versus

CHAIRMAN NAB, NATIONAL ACCOUNTABILITY BUREAU NAB HQ,ISLAMABAD and 3 others--Respondents

C.P. No. D-3984 of 2014, decided on 9.3.2015.

National Accountability Ordinance, 1999--

----Ss. 18(g) & 24(b)--Bail in reference--Commission of offence of corruption and corrupt practices/cheating public-at-large--Sufficient incriminating material was available--Different footings and no rule of consistency--Validity--Whenever reasonable doubt arises with regard to participation of an accused person in crime or about truth or probability of prosecution and evidence proposed to be produced in support of charge--Accused would not be deprived of benefit of bail and in such situation it would be better to keep him on bail than in jail during trial--In absence of the material on basis of which he was believed to be involved the Court for purpose of release accused on bail, instead of dilating upon the facts of case, can dispose of matter by holding that his detention was unjustified or unreasonable until such time when on further probe either by I.A. or Court seized of matter, some additional incriminating material was collected against him to justify rejection of bail.

[Pp. 269 & 270] A & B

PLD 1996 SC 241 & PLD 2002 SC 572, ref.

National Accountability Ordinance, 1999--

----Ss. 18(g) & 24(d)--Bail in reference--Plea bargain--Voluntarily offered to furnish security amount--Validity--Bail orders were based on different premise so petitioner cannot be given any benefit of bail orders taking into consideration incriminating material produced by petitioner including application for plea bargain--No reasonable doubt exist to truth or probability of prosecution case and evidence proposed to be produced that petitioner had not committed offence of cheating members of public-at-large--Petition was dismissed. [P. 272] C & D

Mr. Yousaf Moulvi, Advocate for Petitioner.

Mr. Noor Muhammad Dayo, ADPG NAB .

Mr. Hassan Noor, Asistant Director NAB/IO.

Date of hearing: 18.2.2015.

Judgment

Muhammad Ali Mazhar, J.--This Constitutional Petition has been preferred for seeking bail in the Reference No. 8 of 2014 filed by NAB on 18th June 2014 under Section 18 (g) read with Section 24 (b) of NAO, 1999 in the Accountability Court.

1. In the aforesaid Reference besides the petitioner, four other accused persons have also been implicated. It is inter alia contended in the Reference that 34 allotees of Iqra City Project had filed complaints against the petitioner an authorized director of Crown Construction Company (Pvt) Ltd. for illegal allotment of flats and shops in Iqra City project and despite lapse of 16 years the project has not been completed and possession of flats and shops were not given to the allotees. Against the present petitioner it is alleged in the Reference that after the death of his father, he took over both the projects Iqra City Phase-I & Phase-II and allotted and cancelled the flats and shops and executed lease deeds illegally after receiving payments/dues in connivance with his partners and directors of company, therefore, he has committed the offence of cheating public at large which is punishable under the provisions of NAO, 1999.

2. The learned counsel for the petitioner argued that the petitioner was arrested on 22.7.2014. He has no nexus with any public office or public service. No allegation has been levelled against the petitioner of abetment or connivance with the person holding public office hence his arrest is illegal. The allegation against the petitioner is non-handing over of possession and non-execution of lease. The complaints filed by the 34 allotees over a period of 30 years cannot be considered cheating and fraud within the meaning of Sections 9(a) and 10 of the NAO, 1999. The petitioner has never allotted the apartments/shops of the existing allottees to any other person. In fact he settled the grievances of a large number of allotees through his own funds. He was also not a signatory to the bank account of the company. No civil or criminal proceedings are pending against the petitioner for representing his deceased father and exercising such authority. He further argued that no purpose will be served for keeping the petitioner behind the bars. It was further averred that this Court has already granted bail to Younus Warind and Muhammad Naeem Warind in CP.No. D-3439/2014 and Muhammad Alam Khan in CP No. D-3314/2014. The learned counsel referred to 2011 MLD 602 (Muhammad Zafar Maniar Vs. Shehzad Ahmed & others). In this case bail was granted by this Court on the medical ground plus accused had given reasonable explanation for the delay in completing the development work and also ready and willing to handover the physical possession to the allotees. He further referred to 2012 YLR 2809 (Hassan Jameel Ansari Vs. NAB). The Court observed that no direct allegations levelled against the petitioners except misfeasance. Whole reference seems to revolving around other accused persons hence he was granted bail. In the case of Naseem Abdul Sattar Vs. Federation of Pakistan reported in PLD 2013 Sindh 357, this Court held that scope of Section 415, P.P.C. for the purpose of NAO, 1999 is limited. NAB has no jurisdiction to take cognizance of an offence of cheating under Section 415, PPC unless that accused had dishonestly induced members of public at large to and not in an individual case. The counsel also referred to 2004 SCJ 20 (Abdul Aziz Khan Niazi Vs. State through Chairman NAB, Islamabad) in which apex Court held that it is the fundamental principle of criminal administration of justice that unless prosecution prima facie satisfies the Court about culpability of a person the bail to him cannot be withheld merely on the basis of presumption of guilt. Unless in the light of evidence in hands of prosecution, the case is brought within parameters of expression “reasonable grounds” to believe that the offence with which a person is being charged is committed by him, the bare accusation would not be sufficient to curtail his right of bail.

3. The learned ADPG NAB argued that the petitioner has been rightly nominated in the Reference being un-authorized Director of M/s. Crown Construction Company Limited. He is principle accused in the commission of offence of corruption and corrupt practices/cheating public at large. Sufficient incriminating material is available and there appears reasonable grounds to believe that the petitioner is guilty of offence triable and punishable under NAO, 1999. The project was to be completed by the 30th November, 1997 but after lapse of 16 years the project is still incomplete. The inquiry was authorized by the competent authority which was latter on converted into investigation and resulted in filing of this reference. The role of petitioner has been highlighted in Paragraph Nos. 1, 3, 6, 8 and 9 of the Reference and also in the Investigation Report. I.O. has also recorded various statements under Section 161, Cr.P.C. After the death of Muhammad Sikandar, the petitioner took over both projects illegally and allotted/cancelled, flats/shops of Iqra City Project and executed lease deeds in favour of allottees by obtaining payments/dues in connivance with the other accused persons. He further argued that the same petitioner has already applied to the NAB for plea, bargain which application is pending. On one hand the petitioner is not pursuing his plea bargain application but on the other hand this bail petition has been filed in which the petitioner has concealed and suppressed this material fact and showing innocence. In the plea bargain application, he admitted entire liability on behalf of company. Sub-Registrar of the property also informed the I.O that various lease deeds were executed by the petitioner which fact is mentioned in the investigation report. So far as the grant of bail to three accused persons by this Court is concerned, the learned ADPG NAB argued that all are based on different footings and no rule of consistency can be claimed by the petitioner.

4. Heard the arguments. There is no quibble that whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial. Prosecution in order to make out a case for refusal of bail to an accused is primarily supposed to place on record material on the basis of which he is believed to be involved in a non-bailable offence, but in absence of such material the Court for the purpose of releasing the accused on bail, instead of dilating upon the facts of the case in detail, can dispose of the matter by holding that his detention is unjustified or unreasonable until such time when on further probe either by the Investigation Agency or the Court seized of the matter, some additional incriminating material is collected against him to justify rejection of his bail. Reference can be made to PLD 1996 S.C. 241 & PLD 2002 S.C. 572.

5. In the case in hand the role of the petitioner has been clearly defined in the Reference by the NAB that after the death of his father he took over the entire affairs of the Company and both the projects. He also received installments from the allotees of flats and shops, and also cancelled the flats and shops and also executed lease deeds after receiving amount. The prosecution has recorded at least 40 statements under Section 161, Cr.P.C. and all the complainants/ witnesses have implicated the petitioner. Even in the investigation report the excerpt from the statement recorded under Section 161, Cr.P.C. are mentioned. It is further stated that during investigation Sub-Registrar II, Gulshan-e-Iqbal Town Karachi, has reported that as per traced record, the petitioner executed about 52 lease deeds in favour of allotees of Iqra City on behalf of Crown Construction Company, though the accused was not Director of the said Company. Similarly the same petitioner along with Rukhsana Sikandar, Kanwal Saqib Jamal and Iqra Sikandar had executed 90 lease deeds though they were not the Directors of the Company but they executed the leases in the capacity of legal heirs of their deceased father (Muhammad Sikandar).

6. One more important facet cannot be ignored that the petitioner had applied for plea bargain but he concealed this fact in his petition. The learned ADPG NAB produced the application for plea bargain signed by the petitioner showing his willingness to enter into a plea bargain. When the learned counsel for the petitioner was shown and confronted this document, he replied that he has no knowledge of this application. The request of plea bargain was made to Director General NAB Sindh by the petitioner on 29.4.2013 on the letter-head of Crown Construction Company (Pvt.) Limited under Section 25 read with Section 15 of NAO, 1999. In this application the petitioner himself mentioned the names of at least 36 complainants who approached the NAB for the possession of their allocated units and the petitioner has also mentioned their paid amount in the form of a table. In this application the petitioner has incorporated various terms and conditions for accepting his plea bargain. One more application was filed on 19.5.2013 to the Director General NAB by the same petitioner in which he requested that he will settle the cases soon and refund the amount to the complainant. He further requested that sub-lease permission may be allowed to him and if any allottee will submit application with the NAB the matter will be settled as per condition of booking. Though the counsel for the petitioner robustly argued that the petitioner has nothing to do with the affairs of the Crown Construction Company as neither he is the Director nor the share holder on the contrary both the documents referred to above were signed by the same petitioner on behalf of the said company and communicated to the Director General NAB and in the plea bargain application the same petitioner has accepted all the liabilities and tabled certain conditions for accepting the offer of his plea bargain.

7. The learned counsel for the petitioner argued that Muhammad Alam Khan, Muhammad Younis Warind and Muhammad Naeem Warind have been granted bail by this Court and also attached the copies of bail orders passed in C.P. along with a separate statement. It is worthwhile to mention that the same learned counsel appeared in C.P. No. 3314 of 2014 in which one of the accused in the Reference Muhammad Alam Khan requested for bail. Mr.Yousuf Molvi, the same learned counsel appeared for the accused Muhammad Alam Khan and his arguments are integrated in Paragraph-3 of the bail order passed in C.P. No. D-3314/2014 on 18.7.2014. The relevant portion is as under:

“fictitious allegations have been levelled in the Reference and there is no solid material available with the NAB to involve him in the alleged offence as the petitioner was neither Director of Company nor executed any sub-lease in favour of allotee. He further submitted that petitioner was partner of Shumail Sikandar who was dealing with the main affairs of the project and cheques issued by Shumail Sikandar to the petitioner were dishonored.”

The present petition has been filed on 26.7.2014 after passing bail order in the case of Muhammad Alam Khan but the same learned counsel who is now espousing the cause of present petitioner argued that the petitioner (Shumail Sikandar) has nothing to do with the project while seeking bail for Muhammad Alam Khan he argued that Shumail Sikandar was dealing with the affairs of the project and cheques issued by him to Alam Khan were dishonored. No doubt this Court granted bail to Muhammad Alam Khan but one of the grounds was the abrupt withdrawal of his pardon by the Director General NAB on alleged violation of the conditions on which the pardon was initially granted to him.

1. So far as the bail order of Muhammad Younis Warind and Muhammad Naeem Warind is concerned, it was argued by their counsel that Muhammad Naeem Warind was an employee of Muhammad Younis Warind against a monthly salary of Rs. 6000 only and as such no incriminating material was produced by the NAB against him. However, for the grant of bail to Muhammad Younis Warind his advocate also argued that Shumail Sikandar (present petitioner) illegally took over the project, received payments from allotees and executed sub-leases on behalf of Crown Construction Company Limited and after having knowledge of such fraud Muhammad Younis Warind (director of company) made complaint to the Land Utilization Department on 30.6.2004 to conduct an inquiry. It was further argued that Muhammad Younis Warind was never involved in the affairs of project and received 55 million from Muhammad Sikandar as a price of his own land. It was further argued by the counsel of Muhammad Younis Warind that Shumail Sikandar has taken entire burden upon him and offered plea bargain. Since the counsel for Muhammad Younis Warind voluntarily offered to furnish security of Rs. 55 million, therefore, while considering other grounds also, the bail was granted subject to furnishing aforesaid security amount in addition to the surety. The purpose of highlighting the aforesaid bail orders is to demonstrate that the above bail orders are based on different premise so the petitioner cannot be given any benefit of above bail orders taking into consideration the incriminating material produced by the prosecution including the application moved by the present petitioner for plea bargain. In the Reference, the role of each accused is defined separately so the plea of bail viz.-a-viz. the rule of consistency whether applies or not needs to be considered in the perspective of role of each individual. The learned ADGP NAB confirmed that the application for plea bargain is still pending with the NAB which in our view should have decided much earlier so that the fate of the application could come up to record. To our mind, no reasonable doubt exist to the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge that the petitioner has not committed offence of cheating the members of public at large. The case does not seem within the parameters of expression “reasonable grounds” to believe that the offence with which petitioner is being charged has not been committed by him.

2. As a result of above discussion, this petition is dismissed. The above findings are tentative in nature which shall not prejudice the case of either party in the Accountability Court. It is expected that NAB shall decide and process the application of plea bargain submitted by the petitioner within fifteen days in accordance with law.

(R.A.) Petition dismissed

PLJ 2015 Karachi 273

Present: Aziz-ur-Rehman, J

Dr. SHAKEEL AHMED SIDDIQUI and another--Plaintiffs

versus

PAK LIBYA HOLDING Co. (Pvt.) Ltd--Defendant

Suit No. B-55 of 2008, decided on 4.8.2014.

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

----Ss. 2(a) & 9--Financial facility--Property finances agreement on mark up basis--Consumer financing repayment schedule--Question of--Whether buy back price or marked up price or repurchase price can be enhanced--Validity--Financial facility granted to and availed by plaintiffs is also exempted excluded from applicability of kibar--Plaintiffs were not bound and or liable to pay mark-up at kibar basic points or otherwise, revise every year as calimed--Subject finance was not only exempted from applicability of kibar but otherwise also plaintiff were not bound to pay and excess mark-up at KIBAR--It is established principles of law that mark-up once fixed cannot be changed--Marked-up price cannot be enhanced altered much less unilaterally and in violation of SBP circulars and or Finance Agreement--Onus of proof was on plaintiffs.

[Pp. 311 & 314] A, B & C

Contract Act, 1872 (IX of 1872)--

----S. 73--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 9--Property financing agreement on mark-up basis--Repayment schedule--Mode of financing--Damages--Claimed amount of damages--Failed to lead trustworthy evidence--Damages on account of illegal demand to pay market amount of monthly installment--Break-up quantum of damages--Demanding excess mark-up in violation of legal and contractual obligation--Validity-- According to plaintiffs' version they have suffered huge losses and damages on account of illegal demand of defendant to pay increased amount of monthly installments--Damages, it was established principle of law cannot be granted in absence of positive evidence--Indeed, for grant of damages cogent evidence was required about details of losses actually suffered which was not available in instant case--Even a fixed amount of damages under law of contract cannot be granted unless same was proved through sufficient evidence--The damages/losses even otherwise sought are also remote in view of Section 73 of Contract Act--Party claiming damages was required under law to establish contract, breach thereof and quantum/extent of damages claimed as having been suffered due to breach of contract--A party claiming damages under law, firstly have to plead and thereafter to prove same by leading cogent evidence--Needless to say, regarding damages and quantum of damages burden of proof lies on claimant thereof--Plaintiffs nonetheless, had failed to discharge onus of proof satisfactorily--Alleged default and its' reporting over due 90 days besides being illegal, void ab-initio was outcome of defendants' bias and antagonized attitude towards plaintiffs. [Pp. 315 & 316] D, E & F

Mr. Zeeshan Abdullah and Mr. Saalim Salam Ansari, Advocates for Plaintiffs.

Mr. Abdul Sattar Lakhani, Advocate for Defendant.

Date of hearing: 30.5.2014.

Judgment

The Plaintiffs have filed the instant suit against the Defendant for Declaration, Permanent Injunction, Rendition of Accounts, Redemption of the Mortgaged Property, Cancellation of Cheques, Documents, Deletion of the name of Plaintiffs from CIB of SBP, Set-off of Counter claim in the sum of PKR 392,353/- plus award of Damages in the sum of PKR 60 Million[s] and other Consequential Relief[s] under Section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [In short FIO, 2001] with following prayers:--

“(i) Declaration[s] that the defendant is not entitled to increase the amount of monthly installment[s] on subject suit’s property bearing House No. 7/11, 22nd Street, Off Khayaban-e-Tanzeem, Phase V, DHA, Karachi admeasuring 500 square yards and/or that the plaintiffs property is liable to be released/redeemed upon payment of schedule amount.

(ii) Declaration that the increased monthly installment’s amount of a sum of PKR 86601/- only per month as demanded by the defendant/bank towards alleged liability is illegal exaggerated, exorbitant un-warranted, hence not liable to be paid by the plaintiffs.

(iii) Declaration[s] that Suit’s Financing is based on Marked-up Price' [orBuy Back Price’ or `Repurchased Price’] as per Article 4.1 of the Agreement which cannot be changed/enhanced as per law.

(iv) Declaration[s] that according to the Demand Promissory Notes and Personal Guarantees and other documents in which the amount mentioned is blank, the liability arising from the instant Documents is Nil’ orBlank’ or `Zero’ under the law.

(v) Declaration[s] that the defendant/Bank has violated the SBP’s BPD’s Circular No. 1 of 2004 and Section 18 Sub-Sections 1 & 2 of FIO, 2001.

(vi) Declaration[s] that the plaintiffs have paid excess amount of PKR 392,353/- in addition to the amount of monthly installments to the defendant bank which should be adjusted towards the future installments of August, September, October, November and December 2008 and January 2009. Hence the Cheque Nos.5677494, 5677495, 5677496, 5677497, 5677498 and 5677499 dated 15th of every above months have been stopped and/or cancelled with immediate effect as the excess payment[s] has already been made.

(vii) Award a decree of accounts with the direction[s] to the defendant/bank to render the proper accounts and/or statement of accounts to determine `Outstanding Mortgaged Money’ with documentary evidence, and other statement including all related documents.

(viii) To direct the defendant to the plaintiff to settle the account accordingly to the repayment schedule of finance agreement dated 12.03.2005 and allow the plaintiff to deposit remaining installment from February, 2009 in the Court and in view of above decree of cancellation of cheques, which are the subject matter of the suit be awarded especially the Cheque Nos.5677494, 5677495, 5677496, 5677497, 5677498 and 5677499 in view of Para VI of the Prayers.

(ix) Grant Permanent Injunction[s]to restrain the defendant, their Agents, Representatives, Attorneys, Workers, Managements, Officers, acting for and on their behalf, from charging increased amount of monthly installment on the subject mortgaged property bearing House No. 7/II, 22nd Street, Off Khayaban-e-Tanzeem, Phase V, DHA, Karachi, admeasuring 500 square yards and/or restrain them from harassing, torturing and humiliating the plaintiffs permanently, and at the first instance interim order[s] are solicited.

(x) Award decree of accounts.

(xi) A decree for damages[s] in favour of the plaintiffs against the defendant/bank of PKR 60 Million[s] only on account of damages and/or compensation as per the break-up stated in the instant plaint.

(xii) Decree of redemption of Names of the Plaintiffs from the SBP’s CIB as defaulters.

(xiv) Award cost of the suit to the plaintiffs.

(xv) Any other further relief[s] and/or order[s] and/or decree[s] and/or declaration[s] as may be just and appropriate in the facts of the instant case in favour of the plaintiffs.

1. The relevant brief facts in the background are as follows:--

2. The Plaintiffs No. 1 & 2 besides brothers are Doctors and running their clinic. Both in terms of Section 2[d] of FIO, 2001, are also customers of the Defendant Financial Institution, as they have availed financial facility from the Defendant Financial Institution as defined under Section 2[a] of FIO, 2001.

3. The defendant, is a Holding Company [Pvt] Ltd incorporated under the laws of Pakistan and falls within the meaning of Section 2[a] of FIO, 2001 and having its principal place of business at 5th Floor, Block 'C’ Finance & Trade Centre, Shahrah-e-Faisal, Karachi.

4. The Plaintiff No. 1, as averred, is the sole owner of the 'mortgaged property', bearing House No. 7/11, 22nd Street, Off Khayaban-e-Tanzeem, Phase V [G+1], measuring 500 sq.yds, DHA, Karachi [hereinafter means 'mortgaged property'].

5. Per averments, the Plaintiffs entered into a 'PROPERTY FINANCING AGREEMENT ON MARK-UP BASIS' dated 12th March, 2005 with the Defendant Holding Company [Pvt] Ltd. for availing a finance facility in the sum of Rs. 7 Million only for the purchase of house costing to PKR 16.4 Millions with the 'debt equity ratio' of 49/51%.

6. The financial facility so availed was/is payable within 15 years and 2 months comprising of 182 equal monthly installments in the sum of Rs. 58,551/- plus Mortgage Insurance Premium of Rs. 2100/- and Property Insurance Premium of PKR 875/- which on summing up comes to Rs. 61,526/- for the first year. The 2nd last installment per the 'REPAYMENT SCHEDULE' to the, property financing agreement on mark-up basis of 12th March, 2005 comes to Rs. 58,576/- and the last one comes to Rs. 25,184/- on account of gradual decrease in the insurance premium.

7. Under Article 4.1 of the Property Finance Agreement on marked-up basis dated 12.3.2005, the Plaintiffs were/are bound to pay the 'marked-up price' to Defendant company viz. PAK Libya in monthly installments in accordance with the 're-payment schedule' as contained in Schedule 'B' of the aforesaid agreement. According to the Plaintiffs' assertions, the monthly installments are being regularly paid through post-dated cheques quite in accordance with the `REPAYMENT SCHEDULE’ alongwith 'BALLOON PAYMENTS' of Rs. 50,000/- [Rupees Fifty Thousand only] every 6 months [i.e. in March and September every year] till date. The Plaintiffs, per averments, did not commit any default in payment of any monthly installment. Rather, the plaintiffs have paid Rs. 392,353/- in addition to the amount of monthly installments which amount nonetheless, is adjustable against and towards the future installments. The six cheques [i.e. Cheque Nos.5677494, 5677495, 5677496, 5677497, 5677498 and 5677499, already handed over to the Defendant towards monthly installments of August, September, October, November, December, 2008 & January, 2009], in view of the already excess payment of Rs. 392,353/-, need not be encashed by the Defendant financial institution.

8. Towards and for securing the financial facility, the Defendant No. 1 also mortgaged his immovable property Bearing No. 7/II, 22nd Street, Phase V, [G+1], admeasuring 500 sq.yds [per layout map] with Defendant Company/Financial Institution.

9. In consideration of the aforesaid facility, the documents executed by the Plaintiffs either jointly and/or severally in favour of the Defendant are as follows:--

a. Property Financing Agreement on Mark-up Basis.

b. Memorandum of Deposit of Title Deeds

c. Irrevocable General Power of Attorney

d. Guarantee, e. Personal Guarantee, f. Undertaking

g. Affidavit

h. Promissory Notes [undated]

All the aforesaid documents are dated 12.03.2005.

1. Per assertion, some of the documents were got signed in blank in clear cut violation of the Section 18[1] of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [Ordinance No. XLVI of 2001]. According to the Plaintiffs version, the sanction Letter dated 12.3.2005 is not only contradictory to the Schedule 'B' [Repayment Schedule] of the 'PROPERTY FINANCING AGREEMENT ON MARK-UP BASIS' dated 12.03.2005 but also interalia is in violation of the State Bank's Circulars i.e:--

a. BPD Circular No. 1 dated 21st January 2004, b. Circular No. 13 dated 20.08.1984

c. Circular No. 32 dated 26.11.1984.

1. The 'Marked-up Price', per Plaintiffs stand, once settled cannot be varied/modified much-less unilaterally and without execution of fresh agreement[s] between the parties. The same otherwise would be against the very concept of Islamic Banking 'buy back’ system. Under law, no mark-up over mark-up can be charged. In the plaint, it was also averred that the letter dated 07.03.2007 for increasing the monthly installment[s] from Rs. 61526/- to Rs. 86601/- by linking the same to KIBOR is not only contrary to the Article 22.1 of the Finance Agreement dated 12.03.2005 but as well of the circulars issued by the State Bank of Pakistan from time to time. Moreover, the Defendant also failed to consider and/or properly reply, the Plaintiff’s protest regarding and against the increase of monthly installments from Rs. 61,526/- Pak Rs. 86,601/-. In response of letter dated 7th March, 2001, the Plaintiffs beside raising several objections had also requested for the provision of the following documents:--

(i) Account statement for the years [2005, 2006 and 2007 to date], (ii) Letter of outstanding balance [pay-off].

1. The Plaintiffs, per their commitments were/are no doubt, paying the monthly installments regularly. Rather to say, the Defendant Company received 'EXCESS AMOUNT’ under the garb of un-warranted increase of the monthly installment[s]. The Defendant in its' own wisdom is continuously demanding increased amount of monthly installments from the Plaintiffs, of course, without any justification and/or in violation of 'REPAYMENT SCHEDULE' dated 12.03.2005. The Defendant FINANCIAL INSTITUTION has also failed and/or ignored to render proper accounts to the Plaintiffs. On account of the Defendant's failure to honour its contractual obligations/commitments, the Plaintiffs, have thus suffered heavy losses and damages.

2. The Defendant, indeed, with mala fide intention has not only reported the Plaintiffs' names to State Bank of Pakistan as “defaulters” but also became source of placing their names on the defaulters list, of SBP [CIB]. On account of such illegality, the Plaintiffs could not avail any finance facility from other banks to increase their business. As such, on this ground as well, the Plaintiffs suffered huge losses and damages, which, no doubt, the Defendant is liable to pay the same to the Plaintiffs. On account of illegal demand of the increased amount of monthly installments [i.e. in clear violation of the 'FINANCE AGREEMENT’ & `REPAYMENT SCHEDULE’], the Plaintiffs have not only suffered mental torture but also lost their physical health and reputation.

3. The break-up/quantum of damages as claimed in the suit is as under:--

| | | | | | --- | --- | --- | --- | | (a) | Loss/damages on account of Mental torture/agony suffered by the plaintiffs | -- | PKR 24 Millions | | (b) | Loss of reputation due to defendant/bank | -- | PKR 10 Millions | | (c) | Financial losses due to non-professional attitude of bank | -- | PKR 25 Millions | | (d) | Cost accrued on litigation paid by the plaintiffs | -- | PKR 01 Millions | | | Total damages | -- | PKR 60 Million |

1. The cause[s] of action, per averments, has/have been arisen against the Defendant on various dates as stated in paras 24 to 26 of the plaint. Hence this suit.

2. Upon filing of the suit on 27.03.2008, process under Section 9[5] of the FIO, 2001 was issued to the Defendant by all modes. In response, the Defendant filed their `Leave to Defend Application-cum-written statement’ [CMA No. 9275 of 2008] on 01.09.2008 under Section 10 of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [XLVI of 2001], wherein the contents of the plaint were denied to some extent categorically.

3. On 10.10.2008, the Addl, Registrar [O.S.], issued notice on Leave to Defend Application bearing CMA No. 9275 of 2008 to the Plaintiffs, who on service, filed their replication to Leave to Defend Application. Interalia in the Leave to Defend Application [CMA No. 9275 of 2008],” the following objections were also raised:--

a. The suit is not maintainable.

b. The Plaintiffs have no cause of action against the Defendant.

c. The suit is barred under Section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001.

d. The prayers for declaration and injunction are not tenable and legally hit by the provisions of Sections 48 and 56 of the Specific Relief Act.

e. The Plaintiffs have not come to the Court with clean hands. It has suppressed true facts and made misrepresentation with mala fide intentions.

f. The suit is not maintainable as the Plaintiffs have not alleged any default by the Defendant in fulfillment of any obligation with regard to the finance.

g. The suit is deliberately false, frivolous and vexatious. The Plaintiffs have not provided an iota of evidence for the damages or any damages whatsoever. As such, the suit is liable to be dismissed with compensatory costs.

h. The Plaintiffs themselves are defaulters and have filed this mala fide suit to avoid payment and pre-empt recovery proceedings.

1. In the Leave to Defend Application [CMA No. 9275 of 2008] regarding paras 5, 6 & 7 it was averred, that the Plaintiffs in fact, have accepted the execution of mortgage of immovable property Bearing No. House No. 7/11, 22nd Street, Off Khayaban-e-Tanzeem, Phase V, DHA, Karachi as security against the FINANCIAL FACILITY; availed by the Plaintiffs from the Defendant. Per Defendant's stand, the documents were, no doubt, got executed by the Plaintiffs voluntarily. The allegation of forcing the Plaintiff to sigh in blanks is nothing but a blatant lie. All the documents were properly filled-in and witnessed as well. The SANCTION LETTER [Annex `D’ to the plaint] and terms & conditions thereof, are binding on the Plaintiffs as the SANCTION LETTER is/was a part of CONTRACTUAL ARRANGEMENT between the parties.

2. The Defendant has not violated any circular [s] of SBP as alleged or otherwise. The Plaintiffs are 'willful defaulter’ and want to shield their `default’ by way of filing the present frivolous suit. The Plaintiffs are not required to pay mark-up at the rate as being linked with KIBOR. The statement of account, no doubt, was provided to the Plaintiff as per prevailing procedure.

3. Per averments, the Defendant immediately reported the matter of 'OVER-DUES’ to CIB in accordance with law and directions/guidelines issued by the State Bank of Pakistan. The Defendant, has thus acted in accordance with law and procedure. The plaintiffs have not provided any evidence regarding damages as claimed. It was denied that the Plaintiffs have suffered any damages in the sum of Rs. 60 Million or otherwise. It is preposterous to claim damages particularly when the Plaintiffs are themselves 'willful defaulters'. The Plaintiffs, under the Finance Agreement, beside bound are liable to pay monthly installments at the greed rate of mark-up. It is denied that any 'cause of action' as alleged or otherwise, has been arisen in favour of the Plaintiffs. The Plaintiffs besides having wasted money on 'Court fee' have also abused the 'due process' of Court. The suit besides being false and frivolous has been filed with a mala fide intention to avoid repayment of just legal dues payable by the Plaintiffs to Defendant Financial Institution.

4. In the Leave to Defend Application [CMA No. 9275 of 2008], it was denied that the plaintiffs are entitled to any of relief[s] as claimed. The declaration sought is legally barred. The prayers for accounts is only a camouflage to preempt the recovery suit. The plaintiffs are liable to be proceeded in the Banking Court for payment of loan and issuing of the cheques dishonestly. The plaintiffs are not entitled to seek any cancellation of the cheques having been given against the payment of the 'FINANCIAL FACILITY'. Regarding redemption of the mortgage property, it was asserted that the Plaintiffs in the first place are required to deposit the outstanding amounts. The prayers for permanent injunction and deletion of the plaintiffs’ names from the defaulters' list of State Bank of Pakistan [CIB] being not tenable in law as such cannot be granted.

5. Finally, the Defendant has prayed for rejection of the plaint under Order VII Rule 11, CPC with cost/compensatory cost. According to the Defendant, the suit as framed and filed is without any 'cause of actions' and also barred under the provisions of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [Ordinance No. XLVI of 2001], Banking Companies Ordinance, 1962 as well as under Sections 42 & 56 of the Specific Relief Act, 1877 [1 of 1877].

6. On 20.10.2008 when the aforesaid Leave to Defend Application [CMA No. 9275 of 2008] came-up before the Court then, the following order was passed:--

“20.10.2008

The learned counsel for the Plaintiff states that this application for grant of leave to defend is barred by eight days. The learned counsel for the Defendant on the other hand states that he has calculated time from the date of publication and according to him the application is within time. In fact there are four different dates upon which the Defendant was served and the period in between do not run in months, but in days therefore this issue can also be framed because the Plaintiff either could not lay hands on any judgment in either way except the judgment of Hon'ble Supreme Court reported in 2002 SCMR Page 476 relevant at Page 478-A. Additionally in the suit, damages have been claimed, which are required to be quantified by leading evidence. There are other questions, which are raised in the leave to defend application. Since the parties have to lead evidence on the question inclusive of the issue of buy back price I therefore, allow this application for the aforesaid reasons. Matter is pasted for issues. [Emphasis & underlining are mine].

1. Subsequently, on 06.02.2008, when again the case came-up before the Court then, upon hearing the following issues were settled:--

2. Whether the instant suit is maintainable?

3. Whether the Application for Leave to Defend/Written Statement filed by the Defendant is time barred and/or whether defence taken by the Defendant in application for Leave to Defend/Written Statement can be taken into consideration in view of time barred Written Statement/Application for Leave to Defend?

4. Whether the Plaintiffs have duly paid the outstanding dues of the Defendant upto date in accordance with the agreement of the finance?

5. Whether the Plaintiffs have filed the suit mala fide to shield their own default?

6. Whether the Plaintiffs were not bound to pay markup at KIBOR+350 basic points revisable every year in accordance with the sanction letter annexure `D’ to the plaint duly accepted by them?

7. Whether the 'Buy Back Price' or 'Marked-up Price' or 'Repurchase Price' can be enhanced?

8. What damages the Plaintiffs' have suffered at the hands of Defendant?

9. Whether the Defendant bank is responsible or the State Bank of Pakistan for circulation of the CIB list of defaulters?

10. What should the decree be?

11. On 08.04.2009 at the joint request, Mr. Asghar N. Faruqui, Advocate was appointed as commissioner for recording evidence of the parties. Order dated 08.04.2009 being relevant reads as follows:--

“At joint request Mr. Asghar Farooqui, advocate is appointed commissioner for recoding evidence of the respective parties. Both the counsel are allowed to lead evidence, by filing affidavit-in-evidence with the right to cross-examine and to file documents before the commissioner. Commissioner is expected to conclude recording of evidence within 4 months from today. Fee of the commissioner in the sum of Rs. 10,000/- per witness shall be borne by the parties who produce such witnesses. Office is directed to issue notice to Mr. Farooqui. Mr. Lakhani undertakes to inform he Commissioner.”

1. In 'pro’ and 'contra' of the aforesaid issues, the Plaintiffs and Defendant led their evidence. DR. BULAND IQBAL SIDDIQUI S/O H. A. SIDDIQUI’ [Plaintiff No. 2] in support of the Plaintiffs' contentions examined' himself. The said witness [PW-1’] besides producing his 'affidavit-in-evidence' as Exh.'P/1’ also produced in his 'examination-in-chief' other documents as Exh. P/1’ to Exh. 'P/17’. The said witness [PW-1’] was duly 'cross-examined' by Mr. Abdul Sattar Lakhani, learned counsel for Defendant Company.

2. On behalf of Defendant, Mr. Minhaj Farooqui s/o Muhammad Jamil-ur-Rehman farooqui, [DW-1’] filed his 'affidavit-in-evidence' before the learned Commissioner. The same was produced in his 'examination-in-chief’ as Exh.D’ Besides, other documents produced in his 'examination-in-chief' are as Exh. D/1’ to 'D-7/1’ The said witness [DW-1’] was also 'cross-examined' by Mr. Saalim Salam Ansari, learned counsel for the Plaintiffs on two occasions.

3. Upon conclusion of evidence, the learned commissioner [viz. Mr. Asghar Faruqui] submitted his 'REPORT' dated 06.08.2010, which thereafter was taken on record vide order dated 06.12.2010.

4. On 14.05.2014 and 30.05.2014 I heard Mr. Zeeshan Abdullah alongwith Mr. Saalim Salam Ansari, learned counsel for the Plaintiffs and Mr. Abdul Sattar Lakhani, teamed counsel for the Defendant and with their valuable assistance also gone through the record of the case minutely. My finding on the issues are as follows:--

5. ISSUE No. 1: Whether the instant suit is maintainable? The burden of proof of this issue is on the Plaintiffs. Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs argued that admittedly the Plaintiffs are 'customers' and Defendant is a 'financial institution' as such falls within the meanings of clauses (c)&(a) of Section (2) of FIO, 2001 respectively. The facility granted to and availed by the Plaintiffs under the 'PROPERTY FINANCING AGREEMENT ON MARKUP BASIS' [Exh. `P/1’] is also a 'finance' within the meaning of Section 2[d] of FIO, 2001 [XLVI of 2001]. Per learned counsel, in view of this position the relationship between the parties is that of 'customers' and 'financial institution'. Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs while, continuing his arguments next contended that if, a 'customer' or a 'financial institution' commits default in fulfillment of any obligation with regard to the 'finance’ then in such eventuality any of them, as the case may be, of course, can competently institute a suit under Section 9 of FIO, 2001 in a Banking Court as defined under Section 2 [b] of FIO, 2001 [XLVI of 2001]. The Defendant as far as the case in hand is concerned, is demanding/has charged mark-up over mark-up which, per learned counsel, besides being illegal, tantamounts to default of legal and contractual OBLIGATIONS as such has been competently challenged through the present suit.

6. Conversely, Mr. Abdul Sattar Lakhani, learned counsel for the Defendant without disputing the existence of the relationship of a 'customer', 'financial institution' and 'finance', contended that since the Plaintiffs interalia are seeking enforceability or violation of the SBP's Circulars and Prudential Regulation but the State Bank of Pakistan as being necessary party has not been joined in the suit. As such the instant suit, in the present form, is not maintainable. He further contended that the present suit besides incompetent in law, is without any 'cause of action'. Moreover, the prayers for declaration and injunction, as sought, are not permissible/tenable under the provisions of Sections 48 & 56 of the Specific Relief Act, 1877 [I of 1877]. Mr. Lakhani next contended that the suit as framed and filed is also barred under Section 9 of FIO, 2001 [XLVI of 2001].

7. For proper appreciation of the contentions of the learned counsel for the parties, I would like to reproduce herein Section 9[1] of the Ordinance, 2001 which reads as follows:--

“9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise.” [Underlining is mine].

1. From the bare reading of Section 9 [1] of FIO, 2001, it transpires that for filing of a suit in Banking Court under Section 9 of FIO, 2001 the foremost necessary ingredients are; [i] customer [ii] financial institution [iii] default in fulfillment of any obligation [iv] with regard to any finance.

2. The words `financial institution', 'customer', 'default', 'obligation' and 'finance' and the 'Banking Courts’ have been defined in Section 2 of FIO, 2001 [XLVI of 2001]. For ready and convenience purposes Section 2 of FIO, 2001 [XLVI of 2001] is reproduced herein below:--

3. Definitions.--In this Ordinance, unless there is anything repugnant in the subject or context--

(a) “financial, institution” means and includes--

(i) any company whether incorporated within or outside Pakistan which transacts the business of banking or any associated or ancillary business in Pakistan through its branches within or outside Pakistan and includes a Government savings bank, but excludes the State Bank of Pakistan;

(ii) a modaraba or modaraba management company, leasing company, investment bank, venture capital company, financing company, unit trust or mutual fund of any kind and credit or investment institution, corporation or company, and

(iii) any company authorised by law to carry on any similar business, as the Federal Government may by notification in the official Gazette, specify;

b. “Banking Court” means--

(i) in respect of a case in which the claim does not exceed fifty million rupees or for the trial of offences under this Ordinance, the Court established under Section 5; and

(ii) in respect, of any other case, the High Court.

(c) “customer” means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifies;

(d) “finance” includes--

(i) any accommodation or facility provided on the basis of participation in profit and loss, mark-up or markdown in price, hire-purchase, equity support, lease, rent sharing licensing charge, or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without arrangement by a seller participation term, musharika, morabaha, musawama, istisnah or certificate, term finance certificate;

(ii) facility of credit or charge cards;

(iii) facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institution;

(iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer;

(v) a benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;

(vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution.

(e) “obligation” includes--

(i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or:renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and

(ii) any and all representations, warranties and covenants made by or on behalf of the customer to a financial institution at any stage, including representations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on assets or properties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfilment of a promise; and

(iii) all duties imposed on the customer under this Ordinance; and

(f) “rules” means rules made under this Ordinance. [Emphasis & Underlining are mine].

1. As is evident, the word Obligation' is followed by wordincludes' which means that the definition of the word 'obligation' is not confined to what has been mentioned in the definition clauses i.e. 2[e(i)(ii)(iii)] of FIO, 2001. By using the word 'includes' instead of word 'means’ has in fact enlarged the scope of the word 'obligation'. The use of word 'means' otherwise, would have made the scope of the word 'obligation' exhaustive to the extent of what has been defined in the definition clauses i.e. Section 2[e(i)(ii)(iii)] of FIO, 2001. In the case of Soneri Travel and Tours Ltd. Through Chief Executive/Director/ Secretary v. Soneri Bank Limited [2011 CLD 193] while, dilating upon the use of words 'means' & 'includes', it was observed as follows:--

“28. ...Definition clauses usually use either the word “means” or the word “includes”. When the former is used, the definition is exhaustive and is confined to what is stated in the statute. When the latter is used, the definition is expansive; the word bears not merely its ordinary, dictionary meaning but also carries the extended meaning given in the statute. If the definition clause uses both “means” and “includes”, the definition is exhaustive as to what follows the word “means”, but this exhaustive definition also incorporates what follows the word “includes”.

1. Likewise, from the case of Imayzone Pak International v. Additional Secretary, Government Of Pakistan [2002 CLC 388], the relevant observation reads as follows:--

“27. ...we would only like to add that it is admitted principle of the interpretation of statutes that whenever a definition is given using the expression “means”, it is exhaustive and wherever, the expression used is “included” or “including”, or “means and includes”, the definition is not exhaustive but it is inclusive which is always supposed to extend the meanings/ items/things/acts of similar nature and can be legitimately included in the definition, if the circumstances so warrant”.

1. In the 6th Edition of Black's Law Dictionary the word 'obligation' has been defined as follows:--

“A generic word, derived from the latin substantive `obligation’ having many, wide, and varied meanings, according to the context in which it is used. That which a person is bound to do or forbear; any duty imposed by law, promise, contract, relations of society etc.”

1. The phrase 'any obligation with regard to finance', as used in Section 9[1] of FIO, 2001, no doubt, enlarges the scope, wide enough to include in its ambit; [i] Legal obligations [ii] Contractual obligations [iii] Absolute obligations. Keeping in view this position now if, a 'Customer' or 'Financial Institution' commits default in fulfillment of any obligation [i.e. by not following or violating the law(s), rules, regulations and/or SBP's instructions/circulars etc.] with regard to finance [i.e. legal obligation & contractual obligations], then, of course, in such eventuality any of the aggrieved parties, may competently institute a suit interalia for declaration, injunction, damages and specific performance of contract under Section 9 of FIO, 2001 [XLVI of 2001]. Moreover, under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is also significant to note, that every individual is to be treated in accordance with law and shall not be compelled to do that, which the law does not require him to do that thing. In the case in hand, the Defendant is demanding excess mark-up in violation of legal and contractual obligations. Under the aforesaid scenario, the suit as framed and filed is maintainable. I am also fortified in this view by the case of Tri-Star Industries (Pvt.) Ltd. v. State Bank of Pakistan and another [SBLR 2003 Sindh 1591] wherein it was held as follows:--

.... Admittedly the Petitioner and Respondent No. 2 have a Banker and Customer relationship and Petitioner had availed financial facilities from Respondent No. 2. Law regulating the relationship between customer and financial institution is contained in Financial Institutions (Recovery of Finances) Ordinance, 2001 [In short FIO, 2001], Section 9(1) whereof provides:

''Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise.”

Definition of finance’ and 'obligation’ as provided for under Section 2(d) and (3) respectively of the Ordinance ibid are wide enough to cover the dispute urged in this petition. In case either customer or financial institution commits default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by filing a plaint. The obligations in terms of State Bank of Pakistan Circular and Instructions of HBL sought to be enforced through this petition come within the purview of “Obligation” envisaged under Section 9 of the Ordinance, 2001 as discussed above. Even otherwise, whether the Petitioner fulfills the criteria and conditions to avail the benefit of the scheme are disputed questions on fact. Therefore, we are of the opinion that the enforcement of the scheme as sought by the Petitioner comes within the definition ofObligation’ which controversy raised in this petitioner could only be thrashed out by adducing evidence. Such exercise as observed above, is not undertaken in exercise of extraordinary writ jurisdiction by this Court. The petition may avail of the remedy as may be provided under the law. [Underlining is mine].

1. The arguments of Mr. Lakhani regarding non-joining of State Bank of Pakistan in the suit besides mis-conceived is mis-leading interalia in view of Section 2(a)(i) of FIO, 2001 whereby the State Bank of Pakistan has been excluded from the definition of a Financial Institution.

2. With regard to the next contention of Mr. Abdul Sattar Lakhani, that the prayer sought for declaration and injunction is not tenable or otherwise, hit by the provisions of Sections 48 & 56 of the Specific Relief Act, 1877 [I of 1877], Mr. Zeeshan Abdullah, learned Counsel, in response, forcefully argued that this Court, no doubt, under law can grant interalia the relief for declaration and injunction. The relief sought by the Plaintiffs, per learned counsel, is not barred under Sections 48 & 56 of the Specific Relief Act, 1877. According to Mr. Zeeshan, the contention of Mr. Lakhani to this extent is also mis-conceived. In support of his contentions, Mr. Mr. Zeeshan, placed reliance on the case of Mst. Jan Ara and others v. Muhammad Zubair and others [2012 CLC 1630] wherein it was held as under:--

“11 …… As far as the claim of negative declaration is concerned, the objection is not tenable for the reason that the rule is not of universal application, however, where in a plaint the relief sought for in negative form of declaration, its refusal has not been justified. As there is no absolute bar contained anywhere in law, because in order to overcome, the various complexities of law and procedure, the Courts are bestowed with the unbridled authority to do away with all those impediments, hampering with the fair dispensation of justice. In this respect, the observation made in case Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113), can be relied upon:--

“Negative declaration can be granted on principle that what can be done directly can also be justified if is done indirectly. Such declaration must, however, also be one affecting Home threatened injury or infringement of plaintiffs right” [Underlining is mine].

1. Likewise, in the case of U Arzeina v. M a Kijni Shave and another [1987 AIR 1940 Rangoon 298] the Court while, dilating upon and dealing with an identical situation held as follows:--

“The learned Judge went on to hold that the Plaintiff was seeking for bare declaration as to his status of paternity or non-paternity, and that declaration would not affect either the Plaintiff’s legal character or his right to any property. The plain answer to that of course is that the declaration affects the Plaintiff’s liability to pay the amount of maintenance in question, which is property, and, as remained in 55. All 7202 at page 703, the provision of law under which the declaration is used for properly covers not only a declaration to assert a positive right but a declaration to negative the right asserted by the defendant against the plaintiff which affect the plaintiff’s property that is to say the liabilities to the plaintiff’s estate. Two Burma cases on the subject have not been referred to by the learned Assistant District Judge. In 4 U B R 120, which was a case exactly on all fours with the present one, it was held that such a suit would lie, and indeed we do not know that it has ever been questioned in this province that such a suit would lie any more than the common form of suit by a husband against a woman claiming to be his wife for a declaration that she is not his legal wife in both cases not merely a legal character but a right to property or earnings in involved. “[Underlining is mine].

1. In further rebuttal of Mr. Lakhani's contention, Mr. Zeeshan Abdullah also placed reliance on the case of Dr. Mohomed Aqeel Khan & Ors v. Mst. Dr. Shaharyar & 2 others [1987 MLD 2809] wherein it was observed as follows:--

“... I am of the view that even if I agree with the learned 1st Appellate Court that the declaration sought by the applicant was not permissible under the law in the circumstances of the case, the learned 1st appellate Court clearly overlooked the fact that in the suit the applicant/plaintiff in addition to the relief of declaration had also sought the relief of permanent injunction which was quite independent of the relief of declaration claimed in the suit. The learned counsel or the respondents were unable to satisfy me that the relief of injunction claimed by the applicant/Plaintiff in his suit could not be granted without granting relief of declaration claimed in the suit. As the relief of injunction claimed by the applicant/Plaintiff was distinct, separate and independent relief, the learned first appellate Court could not throw out the whole suit on the consideration that the relief of declaration could not be granted in favour of applicant under the law. As this important aspect of the case was completely overlooked by the learned 1st appellate Court while allowing the appeal of Respondent No. 1, it amounted to an order in excess of jurisdiction. I accordingly accept this revision application set aside the judgment and decree”... [Underlining is mine].

1. Mr. Zeeshan Abdullah while, repelling the arguments of Mr. Lakhani regarding his contention viz-a-viz. non-tenability of prayers of the Plaintiffs for grant of declaration and injunction strenuously argued that prayers sought by the Plaintiffs are not only proper but also justified in circumstances of the case. Besides the same deserve to be granted in view of the fact that the Defendant in violation of Finance Agreement [Exh, `P/7’] and SBP's Circulars are charging/demanding mark-up over mark-up which act of the Defendant is absolutely illegal. On grant of permanent injunction and declaration Mr. Zeeshan Abdullah placed reliance on the case of Investmemnt Corporation Of Pakistan v. S. Ahmed Sarwana, Advocate [1987 MLD 2442], wherein it was observed as follows:--

“... That the relief for permanent injunction flows from the declaration and unless it is granted permanent injunction cannot be granted. Grant of permanent injunction is governed by Sections 54 & 56 of the Specific Relief Act if there is an application, even under a contract, arising between the parties and if a breach is committed or apprehended the aggrieved party is entitled to seek a permanent injunction. In the present case, as the appellant has filed an application under Order VII Rule 11, CPC, one has to restrict to the averments made in the plaint which for the purposes of this application would be taken to be correct. The averments made in the plaint have been set out alleging breach of agreement in respect of amount deposited or advanced. The appellant is debating certain amounts which it is not authorized under the contract or under the law.” [Underlining is mine].

1. The case-laws cited by Mr. Lakhani i.e. [i] PLD 1968 Kar 222 [ii] PLD 1982 Kar 313 [iii] 1999 CLC 1719 [iv] PLJ 1977 Kar 460 besides distinguishable are not applicable to the facts and circumstances of the present case which has been filed under a special statute i.e. FIO, 2001 [XLVI of 2001].

2. Moreover, there is another aspect of the matter which can properly be appreciated in the light and upon consideration of Section 7 of FIO, 2001. Section 7 of FIO, 2001 reads as follows:--

“7. Powers of Banking Courts.--(1) Subject to the provisions of this Ordinance, a Banking Court shall--

(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);

(b) in the exercise of its criminal jurisdiction, try offences punishable under this Ordinance and shall, for this purpose, have the same powers as are vested in a Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898):

Provided that a Banking Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorised in this behalf by the Financial Institution in respect of which the offence was committed.

(4) Subject to sub-section (5) no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Act, including a decision as to the existence or otherwise of a loan or finance and the execution of a decree Passed by a Banking Court. [Underlining is mine].

1. From the bare perusal and reading of Section 7 [4] of the Financial Institutions (Recovery of Finances) Ordinance, 2001 [XLVI of 2001], it reveals that no Court other than a banking Court shall have or exercise any jurisdiction with regard to any matter to which the jurisdiction of a Banking Court extends under FIO, 2001. Even, a decision as to the “existence” or “otherwise” of a `loan’ or 'finance' and the execution of a decree passed by the Banking Court comes/falls within the jurisdiction of the Banking Court as defined in Section 2 [b(i)&(ii)] of the FIO, 2001. Sub-section [4] of Section 7 of FIO, 2001, no doubt, is subject to Sub-section [5] of Section 7 but in no manner it affects the jurisdiction of Banking Court as far as the case in hand is concerned. Sub-section (5) of Section 7 of FIO, 2001 [XLVI of 2001] reads as follows:--

“(5) Nothing in sub-section (4) shall be deemed to affect--

(a) the right of a banking company to seek any remedy before any Court or otherwise that may be available to it under the law by which the banking company may have been established; or

(b) the power-of the banking company or jurisdiction of any Court such as is referred to in clause (a); or

require the transfer to a Banking Court of any proceedings pending before any banking company or such Court immediately before coming into force of this Act.”

1. The words, a decision as to the 'existence' or 'otherwise' of a loan or finance as implied in sub-section (4) of Section 7 of FIO, 2001 need not to be given restricted meanings. The word used 'otherwise' in my view, not only extends to the question of 'existence', 'non-existence', of a 'loan' and/or 'finance' but also embraces within its' ambit a 'decision' viz-a-viz all other relevant issues. In the case of Lalchand and 2 others v. Officer on Special Duty, Federal Land Commission & 3 others [1984 CLC 2396], the Court while, dilating upon the word 'otherwise', made the following observations:--

“3...In our view, also the word “otherwise” in the proviso in question embraces not only transactions in the nature of gifts but also any other transaction whereby right or interest in land is transferred or created. A transfer of land through exchange will also be covered by the word “otherwise”.”

1. Further in the case of Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commission, Islamabad [PLD 1979 Lahore 375] the word 'Otherwise' has been defined in the following words:--

“3 ... The word “otherwise” according to its dictionary meaning connotes “in any other way” or “any other ways”. Its plain ordinary meaning has therefore the effect of enlarging the category of the transactions described by the preceding word or phrase. It is a word of the widest amplitude.”

1. Moreover, FIO, 2001 is a special law which overrides all other laws in terms of Section 4 of FIO, 2001 which reads as follows:--

“4. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

1. Upon due consideration of the above, I have come to the conclusion that the Plaintiffs' prayer for reliefs of declaration and injunction, under the facts and circumstances of the case, are not prohibited/barred under any of the provisions of Section 48 and/or 56 of the Specific Relief Act, 1877 [I of 1877]. In view of the above discussion, I am of the considered opinion that the Plaintiffs' suit against the Defendant is maintainable. Accordingly, Issue No. 1 is answered in `POSITTVE’.

2. ISSUE NO. 2: Whether the Application for Leave to Defend/Written Statement filed by the Defendant is time barred and/or whether defence taken by the Defendant in application for Leave to Defend/Written Statement can be taken into consideration in view of time barred Written Statement/Application for Leave to Defend? As far as this issue is concerned, the burden of proof is partly on the Plaintiffs and partly on the Defendant. Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs and Mr. Abdul Sattar Lakhani, learned counsel for the Defendant jointly submitted that since the Defendant's Leave to Defend Application [CMA No. 9275 of 2008] has already been granted vide order dated 20.10.2008 and parties thereafter have also led their evidence in 'pro' and 'contra' of the issues settled by the Court on 06.02.2008 as such they do not wish to advance any argument as far as the point of limitation regarding filing of the Leave to Defend Application [CMA No. 9275 of 2008] is concerned. Both the learned counsel further submitted that the fate of the instant suit be decided on merits. Under these circumstances, no specific finding is required to be given on Issue No. 2. Consequently, I proceeded to decide the suit on its' own merits upon due consideration of the 'pro' and 'contra' pleas raised by the parties and the evidence led by both the parties in support thereof. In view of this position, Issue No. 2 stands answered accordingly.

3. ISSUES NO. 3 & 4: Whether the Plaintiffs have duly paid the outstanding dues of the Defendant upto date in accordance with the agreement of the finance - Whether the Plaintiffs have filed the suit mala fide to shield their own default? Both these issues are interconnected and the answer of Issue No. 3 in positive renders the answer of Issue No. 4 in negative. Therefore, I proceeded to decide these issues jointly. The 'onus of proof’ of Issue No. 3 lies on the Plaintiffs shoulders while the 'burden of proof of Issue No. 4 is on the Defendant. Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs while, advancing his arguments on these issues forcefully contended that admittedly the Plaintiffs have availed the subject financial facility' under the 'PROPERTY PURCHASE AGREEMENT ON MARK-UP BASIS' dated 12th March, 2005 [Exh.P/1’]. The purchase price, per the aforesaid agreement, was fixed at Rs. 7,000,000/- [Seven Million only]. The 'Marked-up price' calculated in advance is payable in accordance with the 'REPAYMENT SCHEDULE’ [Exh.'P/2'] and debt equity ratio is 49/51% per. [See Page 2 of Exh.`P/1’].

4. The 'Marked-up price' calculated in advance, per Mr. Zeeshan is/was payable in 182 monthly installments [i.e. 15 years and 2 months] in accordance with the 'REPAYMENT SCHEDULE' [Exh. `P/2’]. For the first year, as is evident from the 'REPAYMENT SCHEDULE', the monthly installment was in the sum of Rs. 61,526/- [i.e. monthly installment of Rs. 58,551/-

5. mortgaged insurance premium of Rs. 21,00/- + property insurance premium of Rs. 875/-]. For subsequent years, per Mr. Zeeshan Abdullah, the INSURANCE PREMIUM was gradually decreased. The last installment thus stands decreased to Rs. 25,182/-. Besides, 'BALLOON PAYMENT’ of Rs. 50,000/- being payable every six months [i.e. in March & September of each year] was paid/being paid without any failure on the part of the Plaintiffs.

6. From the record, it is evident that the Plaintiffs have already handed over 182 cheques in respect of the monthly installments of Marked-up price’ etc. to the Defendant Financial Institution. None of the cheques was ever dis-honoured. Apart from the above cheques the Defendant has also received Rs. 3,221,410/-, admittedly on account of the “disputed excess mark-up' illegally charged by the Defendant over and above of 182 monthly installments] in violation of theREPAYMENT SCHEDULE’ [Exh. `P/2’]. Neither any suit nor any criminal complaint under Section 9 or 20 of FIO, 2001 has ever been filed against the Plaintiffs as there was/is no default in repayment of monthly installments. Rather on account of illegal demand and/or charging mark-up over mark-up in violation of 'REPAYMENT SCHEDULE' [Exh. 'P/2'] the Plaintiffs were compelled/constrained to file the instant suit for declaration etc. against the illegal charging of excess mark-up over and above 182 mutually agreed monthly installments which were/are being paid regularly in terms of the 'REPAYMENT SCHEDULE’ [Exh.P/2]

7. Conversely, Mr. Lakhani, learned counsel for the Defendant is very' much entitled to charge mark-up over mark-up [excess mark-up] on the strength of LETTER OF SANCTION dated 12th March, 2005 [Exh. P/11’]. As far as the default is concerned, Mr. Lakhani found himself unable to pin-point/establish that either the suit has been filed with mala fide intention or otherwise, with an aim, as alleged to shield the so-calleddefault’. Resultantly, Issues No. 3&4 stand answered in 'YES’ and `NO’ respectively.

8. ISSUE NO. 5: Whether the Plaintiffs were not bound to pay markup at KIBOR+350 basic points revisable every year in accordance with the sanction letter annexure D’ to the plaint duly accepted by them? The burden of proof of this core issue is on the Plaintiffs. Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs strenuously argued that under theMARKED-UP PRICE SYSTEM’/PURCHASE PRICE SYSTEM' OF FINANCING, THE 'MARKED-UP PRICE’/PURCHASE PRICE', cannot be changed and/or enhanced much-less unilaterally. In support of this argument, Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs placed reliance on BCD Circular No. 13 dated 20.06.1984 and BCD Circular 32 of 26.11.1984. Being relevant the same are reproduced herein below:--

A.

“STATE BANK OF PAKISTAN

Banking Control Department Central Directorate Karachi

BCD Circular No. 13 20th June, 1984.

All Banks, Dear Sirs, Elimination of 'RIBA' from the Banking System

As has been announced by the Finance Minister, it is the intention of Government that the Banking System should shift over to Islamic modes of financing during the course of the next financial year. These modes of financing have been described in Annexure 1. This shift will take place according to the following programme.

(i) As from the 1st July, 1984, all banking companies will be free to make finance available in any of the modes of financing listed in Annexure 1. However, as a transitional arrangement, they will also be free to lend on the basis of interest, provided that no accommodation for working capital will be provided or renewed on interest basis for a period of more than six months.

(ii) As from the 1st January. 1985, all finances provided by a banking company to the Federal Government. Provincial Governments, public sector corporations, and public or private joint stock companies shall be only in any one of the modes Indicated in Annexure 1 [Emphasis & Underline are mine].

(iii) As from the 1st April, 1985, all finances provided by a banking company to all entities, including individuals, shall be on the same basis as mentioned in (ii) above.

(iv) The appropriate mode of financing to be adopted in any particular case will be settled by agreement between the banking company and the client. Some possible modes of financing for various transactions have been shown in Annexure II.

(v) As from the 1st July, 1985, no banking company shall accept any interest-bearing deposits As from that date, all deposits accepted by a banking company shall be on the basis of participation in profit and loss of the banking company, except deposits received in Current Account on which no interest or profit shall be given by the banking company.

1. The instructions contained in items (i), (ii) and (iii) above shall, however, not apply to on-lending of foreign loans which will continue to be governed by the terms of the loans. Likewise, the instructions contained in item (v) above shall not apply to foreign currency deposits.

2. The above instructions are being issued under the Banking Companies Ordinance, 1962. Further instructions, where necessary, will follow.

Please acknowledge receipt.

Yours faithfully, (SIBGHATULLAH) Director”

ANNEXURE--I

Permissible Modes of Financing

(A) Financing by lending:--

(i) Loans not carrying any interest on which the banks may recover a service charge not exceeding the proportionate cost of the operation, excluding the cost of funds and provision for bad and doubtful debts. The maximum service charge permissible to each bank will be determined by the State Bank from time to time.

(ii) Qard-e-Hasana loans given on compassionate ground free of any interest or service charge and repayable if and when the borrower is able to pay.

4(B) Trade-related modes of financing including the following.--

(i) Purchase of goods by banks and their sale to clients at appropriate mark-up in price on deferred payment basis. In case of default, there should be no mark-up on mark-up.

(ii) Purchase of trade bills

(iii) Purchase of movable or immoveable property by the banks from their clients with Buy-Back Agreement or otherwise. [Underlining is mine].

(iv) Leasing.

(v) Hire-purchase.

(vi) Financing for development of property on the basis of a development charge.

The maximum and the minimum rates of return to be derived by the Banks from these modes of financing will be as may be determined by the State Bank from time to time.

(C) Trade-related modes of financing including; the following:--

(i) Musharika or profit and loss sharing.

(ii) Equity participation and purchase of shares.

(iii) Purchase of participation term certificates and Modaraba Certificates.

(iv) Rent-sharing.

The maximum and minimum rates of profit to be derived by the banks from such transactions will be as may be prescribed by the State Bank from time to time. However, should any losses occur, they will have to be proportionately shared among all the financiers.

ANNEXURE-II

Permissible modes of financing: for Various Transactions

| | | | | --- | --- | --- | | Nature of Business | | Basis of Financing: | | I. Trade and Commerce | | Fixed investment | | (a) Commodity operations of the Federal and Provincial Governments and their agencies | | Mark-up in price. | | (b) Export Bills purchased/negotiated under Letters of Credit (other than those under reserve). | | (i) Exchange Rate differential in the case of foreign currency bills. (ii) Commission or mark-down in the case of Rupee bills. | | (c) Documentary Inland Bills drawn against Letters of Credit purchased/discounted. | | Mark-down in price. | | (d) Import Bills drawn under Letters of Credit | | Mark-up in price. | | (e) Financing of exports under the State Bank's Export Finance charge. Scheme and The Scheme for Financing Locally Manufactured Machinery. | | Service charge/Concessional Service | | (f) Other items of trade and commerce. | | Fixed investment. Equity participation, P.T.Cs., Leasing or hire-purchase. Working Capital Profit and loss sharing or mark-up. | | II. Industry | | Fixed investment Equity participation, P.T.Cs., Modaraba Certificates, leasing, Hire purchase or mark-up. Working Capital | | III. Agriculture and Fisheries | | Profit and loss sharing or mark-up. | | (a) Short-term Finance. | | Mark-up. In the case of small farmers and small fishermen who are at present eligible for interest free loans finances for the specified inputs etc., upto the prescribed amount may be on mark-up basis. The mark-up amount may however, be waived in the case of those who re-pay the finance within the stipulated period and payment of the mark-up made by the State Bank to banks by debit to Federal Government Account. | | (b) Medium and long-term Finance. | | Leasing or hire-purchase. In addition | | (i) Tubewells and other wells | | to ownership of machinery, banks wells may create charge on the land in their favour as in the case of other loan to the farmers under the Passbook System. | | (ii) Tractors, traitors and other farm machinery and transport (including fishing boats, solar energy plants etc.) | | Hire-purchase or leasing. | | (iii) Plough-cattle, Milch Cattle and other livestock. | | Mark-up, | | (iv) Fairy and Poultry. | | PLS/Mark-up/hire-purchase/leasing. | | (v) Storage and other farm construction (viz. Sheds for | | Leasing or rent sharing basis with flexible weightage to the bank's funds. | | (vi) Land Development. | | Development charge. | | (vii) Orchards, including nurseries. | | Mark-up, development charge or PLS basis. | | (viii) Forestry. | | Mark-up, development charge or PLS. | | (ix) Watercourse improvement. | | Development charge. | | IV. Housing | | Rent sharing with flexible weightage to bank's funds or buy-back cum mark-up. | | V. Personal Advances (other than those for business purposes and housing | | | | (a) Consumer durables (cars, motor-cycles, scooters and household goods). | | Hire-purchase. | | (b) For consumption purposes. | | Against tangible security with buy back arrangement. |

B.

“STATE BANK OF PAKISTAN

Banking Control Department Central Directorate Karachi.

BCD Circular No. 32 26th November, 1984.

All Hanks and Development Finance Institutions.

Dear Sirs, Elimination of 'RIBA' from the Banking System Hank Charges.

Please refer to BCD Circular No. 13, dated the 20th June, 1984.

1. Vide BCD Circular No. 7, dated the 28th March, 1984 bank charges except charges for home remittances, have been deregulated. The schedules of bank charges received from the banks show that the following items of bank charges are based on interest:--

(i) Mark-up in the case of import bills under import letters of credit

(ii) Mark-down in the case of documentary bills drawn against inland letters of credit.

1. The schedules also provide for levy of overdue/penal interest in case of non-retirement/non-payment .of inland cheques, bills etc., purchased.

2. In exercise of the powers vested in it under the Banking Companies Ordinance, 1962, the State Bank of Pakistan is phased to direct that as from the 1st January 1985, interest, wherever charged by a banking company/development finance institution in any of the, items of bank charges, shall be replaced by a non-interest mode considered appropriate by it. Moreover, overdue/penal interest or mark-up on mark-up shall not be charged by a banking company/DFI as from that date. Instead, it may take legal steps for recovery of the overdue finance. [Underlining is mine].

3. Please acknowledge receipt.

Yours faithfully, (SIBGHAWLLAH) Director”

1. Significantly, the purpose behind the aforesaid circulars, it appears, was to shift over the interest based banking system to the Islamic modes of financing. Annexure 'A’ to BCD Circular No. 13 dated 20.06.1984 mentions/describes the various Islamic modes of financing. In terms of the aforesaid circulars interest based financing was somehow replaced with the non-interest based financing [i.e. Islamic modes of financing]. Besides, 'PENAL INTEREST’/`MARK-UP OVER MARK-UP' as being charged by Banking Companies/DFIs by then was absolutely also prohibited with effect from 1st July, 1984.

2. Mr. Zeeshan Abdullah, learned Counsel for the Plaintiffs next submitted that the “SUBJECT FINANCE” of the present suit, is based on sub-clause (iii) of clause 4 (B) of ANNEXURE-I of BPD Circular No. 13 of 30th June, 1982, which reads as under:--

“Purchase of movable or immovable' property by the banks from their clients with the Buy-Back Agreement or otherwise.”

1. Mr. Zeeshan Abdullah, next urged that the 'subject finance’ since is based on Islamic mode of financing, thus the Defendant cannot charge mark-up upon mark-up [excess mark-up] in violation of BPD Circular 32 of 1984. Needless to say that SBP’s Circulars are binding on Banks/DFI’s.

2. Plus BPD Circular No. 01 of 2004, specifically exempts the consumer financing from the applicability of KIBOR [Karachi Interbank Offered Rate] as benchmark rate. In view of this position as well the subject finance cannot be linked with KIBOR. The demand of excess mark-up i.e. mark-up over mark-up is nothing but a crystal clear violation of the legal as well as contractual obligations. It is needless to say that no one could alter or amend the law or its effects even by a mutual agreement. Indeed this amounts to an act of default in fulfillment of the obligations by the Defendant financial institution with regard to the finance. Under circumstances, the proper and appropriate remedy under the law is the filing of the suit as Defendant in no event can be permitted to charge/demand excess mark-up under the garb of KIBOR.

3. The Consumer Financing, it is worth to note, has been defined in the PRUDENTIAL REGULATION FOR CONSUMER FINANCING [UPDATED ON JANUARY 31, 2011] in the following words:--

4. Consumer Financing means any financing allowed to individuals for meeting their personal, family or household needs. The facilities categorized as Consumer Financing are given as under:

(i) Credit Cards mean cards which allow a customer to make payments on credit. Supplementary credit cards shall be considered part of the principal borrower for the purposes of these regulations. Corporate Cards will not fall under this category and shall be regulated by Prudential Regulations for Corporate/Commercial Banking or Prudential Regulations for SMEs Financing as the case may be. The regulations for credit cards shall also be applicable on charge cards, debit cards, stored value cards and BTF (Balance Transfer Facility).

(ii) Auto Loans mean the loans to purchase the vehicle for personal use.

(iii) Housing Finance means loan provided to individuals for the purchase of residential house/apartment/land. The loans availed for the purpose of making improvements in house/apartment/land shall also fall under this category. [Underlining is mine].

(iv) Personal Loans mean the loans to individuals for the payment of goods, services and expenses and include Running Finance/Revolving Credit to individuals.

All concerned are encouraged to report the instances where the lending facilities are not extended by the banks in the light of foregoing, instructions for appropriate regulatory actions by the State Bank.

Yours faithfully (MUHAMMAD KAMRAN SHEHZAD) DIRECTOR”

1. Manifestly, the 'subject finance’ as being 'consumer finance' has not been disputed by the Defendant. This factum is also evident from the 'cross-examination' of the Defendant witness viz. MINHAJ FAROOQUI s/o MUHAMMAD JALIL-UR-REHMAN FAROOQUI [DW-1]. The said witness [DW-1] in his 'cross-examination' has categorically admitted the nature of 'subject finance’ as “Consumer Finance”. The relevant portion of 'deposition' from the 'cross-examination' of aforesaid witness ['DW-1'] reads as follows:-

“It is correct to suggest that the loan which is subject matter of this suit is a consumer finance. It is correct that Defendant company follows the regulations and circulars as laid down by State Bank of Pakistan. It is correct that the default as alleged by Defendant company against the Plaintiff is due to the fact that they have linked the markup with Kibor as bench mark rate.” [Underlining is mine].

1. Conversely, Mr. Abdul Sattar Lakhani, learned counsel for Defendant argued that Defendant is within its rights not only link the charging of mark-up with KIBOR but also can charge the same in terms of the sanction letter dated 12th March, 2005 [Exh. '5/11']. Moreover, the instant suit is against the financial institution as such merits no consideration and liable to be dismissed with cost.

2. BEFORE ANSWERING ISSUE NO.5, I WOULD LIKE TO REPRODUCE HEREIN SOME OF THE RELEVANT DEFINITIONS/CLAUSES FROM 'PROPERTY FINANCING AGREEMENT ON MARK-UP BASIS' DATED 12th MARCH, 2005 [EXH. `P/1’] AS FOLLOWS:--

“Marked-up Price” means the aggregate of the amounts set out in the schedule - “B”, hereto, as modified or substituted from time to time, payable by the customer to the Pak-Libya on the payment dates and as more particularly describe in Article 21.1, here in below.

“Purchase Price” means the sum of Rs. 7.000,000/- (Rupees Seven Million Only) being the price at which PAK LIBYA has agreed to purchase the Assets and Property form the Customer in accordance with the terms and conditions of this Agreement.

“Special Conditions” shall mean special conditions, if any, attached to this Agreement, before Schedule A and B which shall be integral part of this Agreement.

2.1 The Customer confirms having sold the Assets of PAK LIBYA for the Purchase Price to be disbursed by PAK LIBYA to the Customer of his/her nominee upon satisfaction of the conditions of disbursements hereinafter contained. Having sold the Assets to PAK LIBYA, the Customer confirms having immediately repurchased the Assets from PAK LIBYA at the Marked-up Price.

4.1 The Marked-up Price shall be paid by the Customer to PAK LIBYA in monthly installments in accordance with the payment schedule contained in Schedule `B' hereto (the “Payment Schedule”).

4.3. If at any time when any part of the Purchase Price is outstanding hereunder the State Bank of Pakistan Discount Rate is discontinued by the State Bank of Pakistan or such rate exceeds 8% per annum, then PAK LIBYA shall serve a notice upon the Customer and the parties hereto agree to negotiate in good faith an alternate pricing structure. In the event that no agreement is reached between the parties hereto within fifteen (15) days of the receipt of notice by the Customer from PAK LIBYA, the Customer shall prepay the outstanding Purchase Price.

19.1 This Agreement shall be binding upon and inure to the benefit of each party hereto and its or any subsequent successors.

21.1 This Agreement represents the entire agreement and understanding between parties in relation to the subject matter hereof and supersedes all previous agreements and/or understandings between the parties in relation hereto:

Provided that the Pak - Libya, in its sole discretion and without assigning any reason, shall have the right to modify or substitute the marked up price, the repayments and its dates set in schedule “B” on annual basis or at any time or from time to time, by a written notice to the customer to that effect.

Further provided that the marked up price so modified and or substituted shall be calculated on the basis of yield of selected financial instrument, offered by State Bank of Pakistan, from time to time and in the sole discretion of Pak-Libya.

22.1 No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (and writing shall include a facsimile transmission) and executed by each of the parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system. [Underlining is mine].

1. In terms of clause 4.3, the State Bank of Pakistan [In short SBP], somehow, if, discontinue the DISCOUNT RATE or such rate EXCEEDS 8% per annum, then in such eventuality, the Defendant [PAK LIBYA] was/is required to SERVE NOTICE upon the customer [Plaintiff] for negotiating the alternate structure in good faith. Thereupon if, no agreement is reached between the parties to FINANCE AGREEMENT [i.e. Exh. `P/1’ herein] within fifteen (15) days of the receipt of notice by the Customer from PAK LIBYA, the Customer shall consequently PREPAY THE OUTSTANDING PURCHASE PRICE. Manifestly, the only consequences under the aforesaid clause 4.3 of Exh. 'P/1’ is PRE-PAYMENT of the outstanding 'PURCHASE PRICE’ and nothing else. The 'PURCHASE PRICE' under Exh. 'P/1’ is Rs. 7,000,000/- [Rupees Seven Million only].

2. So also from perusal and reading of clause 4.1, it appears that 'marked-up price' is payable by the Plaintiff to the Defendant in monthly installments in accordance with the 'REPAYMENT SCHEDULE' contained in Schedule 'B' hereto [The 'Payment Schedule']. The word 'hereto' only refers to the 'REPAYMENT SCHEDULE' [i.e. Exh. `P/2’] and none of any other documents. The Finance Agreement [Exh.'P/1'] besides being binding upon the parties hereto [i.e. Plaintiffs & Defendant] is also runs for the benefit of both the parties means thereby that none of the terms and conditions of the finance can be changed/varied mala fidely unilaterally and without service of Written Notice on the Customer [Plaintiffs herein].

3. Upon reading the definition of 'Consumer Financing' in juxtaposition of BPD Circular No. 01 of 21st January, 2004, I am of the considered opinion that the 'Consumer Financing’ remains exempted/ excluded from the applicability of KIBOR [Karachi Interbank Offered Rate].

4. Needless to say, that the instructions issued by the State Bank of Pakistan [SBP] in the shape of Circulars and Regulations are binding upon all the commercial BANKS and DFIs’ as they are having the force of law. Regarding this aspect of the matter reliance can be placed on the case of Federation of Pakistan & others v. Shoukat Ali Mian and others [PLD 1999 SC 1026] wherein it was observed as follows:--

“19. Mr. Salman Akram Raja has candidly conceded that notwithstanding the above solemn commitment given by the Parliament in Act XII of 1992, the Parliament was competent to enact Section 2 of the Act imposing temporary F restrictions on the withdrawal of the amounts from the foreign currency accounts. However, his submission was that the State Bank of Pakistan had no power under Section 25 or 41 of the Ordinance of 1962 to direct the foreign currency account holders whose foreign currency deposits were accepted as a collateral security against the local loans by the various banks to provide fresh G security in place of foreign currency deposit or to liquidate the liability. The above contention seems to be correct. In this behalf, it may be pertinent to refer to Section 25 of the Ordinance of 1962 which reads as under:

“25. Power of State Bank to control advances by banking companies.--(1) Whenever the, State Bank is satisfied that it is necessary or expedient in the public interest so to do, it may determine the policy in relation to advances to be followed by banking companies generally or by any banking company in particular, and, when the policy has been so determined, all banking companies or the banking company concerned, as the case may be, shall be bound to follow the policy, as so determined.

(2) Without prejudice to the generality of the power conferred by sub-section (1), the State Bank may give directions to banking companies either generally or to any banking company or group of banking companies in particular,--

(a) as to the credit ceiling to be maintained, credit targets to be achieved or different purposes, sectors and regions, the purposes for which advances may or may not he made, the margins to be maintained in respect of advances, the rates of interest, charges or mark-up to be applied on advances and the maximum or minimum profit sharing ratios; and

(b) prohibiting the giving of loans, advances and credit to any borrower or group of borrowers, on the basis of interest, either for a specific purpose or for any purpose whatsoever; and each banking company shall be bound to comply with any direction so given.

(3) If any default is made by a banking company in complying with the policy determined under sub-section (1) or direction given under sub-section (2), every director and other officer of the banking company and every other person who is knowingly a party to such default shall, by order of the State Bank, be liable to a penalty of any amount which may extend to twenty thousand rupees and, where the default is a continuing one, of a further amount which may extend to one thousand rupees for every day after the first during which the default continues.

(4) Without prejudice to the provisions of sub-section (3), the State Bank may, for the purposes of securing implementation of any special credit schemes or monetary policy or observance of credit ceilings by a banking company, by order in writing require banking companies generally, or any banking company in particular, to make special deposits with it for such amount and on such terms and conditions as may be laid down by the State Bank in this behalf

(5) The amount deposited with the State Bank under sub-section (4) or any part thereof may, at the discretion of the State Bank, be released by it to the banking company which deposited it as and when the State Bank deems fit either unconditionally or on such terms and subject to such conditions as the State Bank may, by order in writing, determining from time to time.

(6) Any penalty imposed under sub-section (3) shall be payable on demand made by the State Bank and, in the event of refusal or failure by the Director, officer or other person concerned to pay on such demand, shall be recoverable as arrear of land revenue.”

The perusal of the above quoted section indicates that the above section empowers the State Bank of Pakistan to control advances by banking companies by laying down the policy in respect of matters referred to in its sub-section (2) i.e. as to the credit ceiling, credit targets, the purposes for which advances may or may not be made, the margins to be maintained in respect of advances, the rates of interest, charges or mark-up to be applied on advances and the maximum or minimum profit sharing ratios, and prohibiting the giving of loans, advances and credit to any borrower or group of borrowers on the basis of interest, either for a specific purpose or for any purpose whatsoever, but had no power to alter' the terms and conditions of an agreement of loan already entered into and acted upon between a bank and its customers through a circular. It may be stated that it is a welt-settled proposition of law that a notification or an executive order which may adversely affect the rights of any person cannot be given retrospective effect. In this regard reference may be made to the case of Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315, in which this Court while construing the State Bank Circular held as under:

“16. Reverting to the question, whether such a direction can affect the loan agreement which were already concluded prior to such direction, it may be observed that it is a well-settled principle of interpretation of a notification and/or an executive order that the same can operate prospectively and not retrospectively. This principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it.”

1. Likewise, in the case of United Bank Ltd. v. Kashmir Textile Mills Ltd. [2013 CLD 1325 LAH], it was held that after 20th June, 1984 no Financial Institution in Pakistan can transact banking business on interest based system or MARK-UP ON MARK-UP basis. The relevant observation made in the aforementioned case reads as follows:--

“25. After 20-6-1984, no Financial Institution in Pakistan can transact banking business on interest based system or mark up on mark up basis, the Financial Institutions in Pakistan after 1st July, 1984 are bound to transact banking business on Non-Interest based banking except where the foreign loan is involved. Under NIB system the financing is based on sale and purchase of commodity on deferred payment basis, Lender Institution is entitled to recover the buy back price only within the agreed period. The State Bank of Pakistan has issued Circulars Nos. 13 and 32 on 20-6-1984 and 26-11-1984 for regulating Non-interest based financing, the circulars are, having the force of law and are binding on all financial institutions, thus plaintiff is not entitled to recover any mark up after the agreed period, the said eventuality is protected under Section 3(2) of FIO which provides that customer is bound to pay the costs of funds from the date of default till realization. [Underlining is mine].

1. Upon going through the various clauses of the PROPERTY FINANCE AGREEMENT ON MARK UP BASIS dated 12th March, 1985 [Exh.P/1], BPD Circulars referred to and reproduced hereinabove and definition of the CONSUMER FINANCING REPAYMENT SCHEDULE [Exh. P/2’], I have reached the conclusion that thefinancial facility' granted to and availed by the Plaintiffs is also exempted/excluded from the applicability of KIBOR. The Plaintiffs as such, are not bound and/or liable to pay mark-up at KIBOR + 350 basic points or otherwise, revise the same every year as claimed per LETTER OF SANCTION dated 12th March, 2005 [Exh. `P/11’]. The stand taken by the Defendant is not only mis-conceived but also mis-leading under the facts and circumstances of the case thus cannot be accepted.

2. The contention of Mr. Lakhani, that the Defendant is not only within its, rights to link the 'subject finance' with KIBOR but also can charge mark-up over mark-up [excess mark-up] over and above the already fixed installments amounts having been mentioned/detailed in the 'REPAYMENT SCHEDULE' [Exh. P/2’] on the strength of LETTER OF SANCTION [Exh.P/11’] is Without any substance and force thus repelled. In support of this aspect of the matter, from the case of United Bank Ltd. v. M/s Gravure Packaging (Pvt.) Ltd. & 4 others [2001 YLR 1549 KAR] the following important and relevant portions are reproduced herein below:--

3. ...The only document shown is a Sanction Advice, which is an internal document of the bank. The document could be seen only to what was approved by the bank. The agreement overrides all arrangements. The sanction advice, in the presence of the agreement, vis-a-vis the customer cannot be construed to be adverse disadvantage to the customer. The agreement is the document signed by both, the contents of which have to be seen. The question whether where a law categorically disallows mark-up on mark-up, can an agreement cause it to be charged, or could any act be done by the parties to the agreement by which mark-up is added, or mark-up on mark-up is included to a marked-up price.”…..

4. ...In fact, BCD Circular No. 13, the preamble also states that the banking system was to shift over to the Islamic Modes of Financing, such is the public policy. After the law has been brought in conformity with the Holy Qur'an and Sunnah, way and methods are being employed by the Bank to continue the previous usurious Banking Practice, despite the fact that the law has been Islamised in accordance with the Constitution of the Islamic Republic of Pakistan. Such a practice that is sought to be developed by the banks is a fraud on the Islamic provisions. No one can be allowed to play a fraud on the existing law by trying to avert the existence of such law that prescribes that mark-up on mark-up cannot be charged. The act of entering into a future transaction admittedly is in respect of renewal of financing and does not contain any aspect of actual disbursement or payment. Such contracts are contracts that are against the public policy. “

5. ...A perusal of Section 23 of the Contract Act categorically states that consideration or object of an agreement is lawful unless it is of such a nature that if permitted, would defeat to provision of any law. A subsequent agreement whereby, there is a settlement of previous debt or is renewal thereof shall in fact amount to defeating the provision of the specific law available. Such will not be novation but an independent agreement contemplating an actual sale and purchase. Such an agreement entered into only for renewing the previous debt shall be a void agreement. The position in law is absolutely clear. I had also referred to the clear instructions of the State Bank in Regulation XVI above. Such renewal will only be Window Dressing and that all profits shown will be nothing but added markup. Mark-up cannot be allowed to be added on an existing debt’, as there can be no agreement between the parties in respect of thatspecific debt’ except that there could be enlargement of time, and that too without increase in the debt payable.”

84. ... It is well-settled principle of law that parties cannot contract out of the provisions of the Act. See in the case of Woman Shriniwas Kini v. Ratilal Bhagwandas & Co. AIR 1959 SC 689 it has been held that an agreement to waive an illegality is void on the ground of public policy. Similar views have been taken in the case of Anayat Ali Shah v. Anwar Hussain 1995 MLD 1714.

1. We now come to another question, i.e. whether an agreement without consideration is a valid agreement. Section 25 of Contract Act reads as under:--

“25. An agreement made without consideration is void unless:-

(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless

(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless

(3) it is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases such an agreement is a contract.”

The subsequent agreements of finance are not covered by the exception to the general principle, that an agreement without consideration is void. Section 24 of the Contract Act reads as under:--

“24. If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.”

It will be seen that if any part of a single consideration is unlawful the agreement is void.

1. The position is that BCD Circulars Nos. 13 and 32 are the consequences of the reports of the Council of Islamic Ideology provided for the furtherance of Islamic financing where mark-up on mark-up has been stated to be un-Islamic and usurious. Riba was disallowed and that because of such disallowance it was in the line with the arguments put forward for the purposes of Islamic financing.

2. In view of the above, I am of the considered opinion that once the agreement has been entered into and the re-purchase price determined there can be no renewals by increase the debt. If there is a renewal or re-structuring nothing can be added to arrive at extended figure.

3. In view of the aforesaid discussion/legal position and case-laws cited at bar, I have reached the conclusion that subject finance is not only exempted from the applicability of KIBOR but otherwise also the Plaintiffs are not bound to pay any excess mark-up/mark-up at KIBOR to the Defendant. Resultantly, Issue No. 5 is answered in `NEGATIVE’.

4. ISSUE NO. 6: Whether the 'Buy Back Price' or Marked-up Price' or 'Repurchase Price’ can be enhanced? The burden of proof of this issue is on the Defendant. In the present case admittedly the Plaintiffs were extended finance facility under the 'PROPERTY FINANCING AGREEMENT ON MARKUP BASIS dated 12.03.2005 [Exh.P/1’] by the Defendant on mark-up basis. The total financed amount was in the sum of Rs. 7,000,000/- [Seven Million] which as evident from the record, was payable in 182 installments in accordance with the 'Repayment Schedule' [Exh.'P/2'] [attached as Annexure 'B' to the aforesaid agreement of 12.03.2005]. The Defendant admittedly had also obtained POST-DATED CHEQUES for all the agreed monthly installments of the financial facility in accordance with the repayment schedule [Exh. P/2']. The Defendant however, from time to time in their own wisdom increased/tried to increase the monthly installments and that too without serving of any NOTICE on the Plaintiffs. From the evidence, the Defendant has failed to justify the charging of the mark-up at the increased rate ranging between 12.84% to 24% per annum. In view of detailed discussion on Issue No. 5 'Marked-up Price/Buy Back Price’ cannot be enhanced. It is established principles of law that mark-up once fixed cannot be changed. The Marked-up Price as the case in hand cannot be enhanced/altered much-less unilaterally and in violation of SBP's Circulars and/or Finance Agreement. Issue No. 6 thus answered in NEGATIVE.

5. ISSUE NO. 7: What damages the Plaintiffs have suffered at the hands of Defendant? The onus of proof of this issue is on the Plaintiffs. According to the Plaintiffs' version they have suffered huge losses and damages on account of the illegal demand of the Defendant to pay increased amount of monthly installments. The break-up of quantum of damages as given/detailed in the plaint is as under:--

| | | | | | --- | --- | --- | --- | | (a) | Loss/damages on account of Mental torture/agony suffered by the plaintiffs | -- | PKR 24 Millions | | (b) | Loss of reputation due to defendant/bank | -- | PKR 10 Millions | | (c) | Financial losses due to non-professional attitude of bank | -- | PKR 25 Millions | | (d) | Cost accrued on litigation paid by the plaintiffs | -- | PKR 01 Millions | | | Total damages | -- | PKR 60 Million |

1. In support of the aforesaid claimed amount of damages, however, the Plaintiffs have failed to lead any trustworthy evidence. Damages, it is established principle of law cannot be granted in absence of positive evidence. Indeed, for grant of damages cogent evidence is required about details of losses actually suffered which is not available in the instant case. Even a fixed amount of damages under law of contract cannot be granted unless the same is proved through sufficient evidence. The damages/losses even otherwise sought are also remote in view of Section 73 of the Contract Act. A party claiming damages is required under law to establish the contract, the breach thereof and quantum/extent of damages claimed as having been suffered due to breach of contract. A party claiming damages under law, firstly have to plead and thereafter to prove the same by leading cogent evidence. Needless to say, regarding damages and quantum of damages the burden of proof lies on the claimant thereof. In the present case, the Plaintiffs nonetheless, have failed to discharge the onus of proof satisfactorily. In the case of Ahmed Nadeem Kirmani v. M/s. Muslim Commercial Bank Ltd., Islamabad[1993 SCMR 441] on this aspect of the matter, it was observed as under:

“... A party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it he cannot succeed. Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract. Only such damages can be recovered which naturally arise in the usual course of things from such breach or the parties at the time of making the contract knew that loss or damage in likely to result from the breach. Another principle which is to be kept in mind while assessing damages is that whether the plaintiff was in a position to mitigate the damages and has neglected to avail of it. As discussed above the appellant has failed to prove the agreement with the Egyptian Embassy, the rate of rent and the date of occupation ....”

1. In the case in hand, the Plaintiffs have failed to discharge the onus of proof properly and satisfactorily viz-a-viz. the claim of damages having been suffered due to breach of contract through evidence. Under circumstances Issue No. 7 is answered in NEGATIVE.

2. ISSUE NO. 8: Whether the Defendant bank is responsible or the State Bank of Pakistan for circulation of the CIB list of defaulters? Regarding this issue, Mr. Zeeshan Abdullah submitted in vehemence that the 'Credit Information Bureau' is an organization that collects information from its members financing institutions and collates credit exit date on borrowers. Per learned counsel, those financial institutions who report to SBP on overdue 90 days. Mr. Zeeshan Abdullah, learned Counsel argued that the Defendant Bank repotted 90 days over-due of the Plaintiff alleged default obviously due to non-payment of the increased/excess amount of mark-up. The so-called default based on the illegal demand of bank besides being unlawful, un-satisfied, in fact was/is, an attempt to harass the Plaintiffs. The Defendant in their own wisdom/in a calculated manner reported the so-called over-due 90 days of the Plaintiff alleged default. Such reporting, indeed, became the source of circulating the Plaintiffs names in CIB as defaulters. Per Mr. Zeeshan Abdullah, the post-dated cheques issued by the Plaintiffs are being regularly encashed by the Defendant. In view of this position, the alleged default and its' reporting over due 90 days besides being illegal, void ab-initio is the outcome of Defendants' bias and antagonized attitude towards the Plaintiffs.

3. In response, Mr. Lakhani did not dispute the reporting, by the Defendant, however, he contended that the Plaintiffs are/were defaulters in respect of the increased/excess amount of mark-up. As such their names were reported to State Bank of Pakistan [CIB]. Being relevant para 15 of /LD-cum-Written Statement of the Defendant is reproduced herein below:--

“15. That the contents of para 20 are denied as farmed. The defendants are required to report the matter of overdues to CIB which they did in accordance with requirements of law and directions/guidelines given by the State Bank of Pakistan.”

1. From the above, it is clear that, on the Defendant's reporting the names of the Plaintiffs were placed on the defaulters list of SBP [CIB]. Accordingly, Issue No. 8 stands 'answered'.

2. ISSUE NO. 9: What should the decree be? In view of above discussion, arguments, advanced by learned counsel for the parties at bar and my issues-wise findings as above, the Plaintiffs suit is decreed in the following terms:--

(i) The Defendant under the facts and circumstances of the case is not entitled to increase the amount[s] of 182 monthly installment[s] or any of them in respect of the subject finance facility granted to and availed by the Plaintiffs. Rather the Defendant is only entitled to receive the installment amounts in accordance with the RE-PAYMENT SCHEDULE [Exh. `P/2’]

(ii) The excess amount of Rs. 3,92,352/- already paid to and received by the Defendant is declared as refundable to the Plaintiffs. The Defendant, however, if wish so, may adjust the same against the future installment[s].

(iii) The Defendant in the event of adjustment if, made is restrained from encashing the cheque[s] lying with the Defendant to the extent of Rs. 3,52,352/- only.

(iv) The Defendant is also permanently restrained from charging any increased amount over and above of the monthly installment as given/detailed in the initially prepared REPAYMENT SCHEDULE [i.e.Exh.P/2].

(v) Besides, the Defendant is directed to take necessary and appropriate steps for the removal of the names of the Plaintiffs from the list of defaulters of State Bank of Pakistan [CIB] promptly.

1. The suit stand decreed in the above terms with costs.

(R.A.) Suit decreed

PLJ 2015 Karachi 318

Present: Salahuddin Panhwar, J.

JAFFAR ALI--Petitioner

versus

SHO, AIRPORT POLICE STATION, LATIFABAD HYDERABAD and another--Respondents

C.P. No. S-878 of 2014, decided on 25.2.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Illegal encroachment--Rights of minorities--Allotment of Govt. land--Open auction--Essential--Ban over allotment of state land was continuing and relaxation was allowed only for specific projects--Lodgment of FIR--Validity--Grant/allotment of government land, if made for housing scheme (s), shall not equate term ‘public interest’ particularly when it is being made without ‘open auction’ because ‘housing scheme’ may, undoubtedly, be under plea to provide shelter to some-one but patently term ‘some-one’ cannot equate term ‘public-at-large’ hence interest of ‘public-at-large’ could only be protected if maximum ‘revenue’ is generated which, undoubtedly, is believed to be used for interest and betterment of ‘public-at-large’--It is not a disputed position that ‘ban’ over allotment of government state land is continuing and relaxation has been allowed by Supreme Court only for specific ‘projects’ and a housing scheme does not, prima facie, appear to be one falling in such exception, therefore, allotment in name of ‘housing scheme’, in existence of ban and of directive (s) of Court, seems to be a deliberate, pejorative and intentional attempt to deceive purpose and objective of such ‘ban’ and ‘directives’--Any such attempt shall create no binding effect upon sub-ordinate officials who, being custodian of public rights and interests, are believed to resist same or least make position clear to such an ‘authority’--Petitioner was not entitled to seek direction of lodgment of FIR against encroacher, however, such encroachment, shall be removed by quarter in accordance with law under intimation to High Court. [Pp. 323, 324, 326 & 326] A, B & F

Lease--

----Leasing authority--Lease standing will with purpose and object of lease/grant--Validity--Lease only creates those rights which contract permits and, in no way, dress ‘lessee’ up with status of ‘absolute owner’ who is entitled legally to enjoy property as per his wishes--It is not status of ‘lessee’ which may be company, person or department even, but it is object of lease/grant which matters.

[P. 325] C

Breach--

----Illegal order--Equity--Legality--A breach or an illegality always continues to be a ‘breach/illegality’ and a mere lapse of time shall, in no way, be sufficient to convert an ‘illegality’ into a ‘legality’--No breach or illegality of grant/lease goes unchecked particularly when ‘contract’ permits penal action, including cancellation of lease/grant, against ‘lessee’. [P. 325] D

Bogus Entry--

----Remarks regarding entry--Entry in record of right--Bogus entry is not to be kept in record nor should be allowed to be used to exploit right, title and interest of government land hence where revenue authorities themselves claimed an ‘entry in record of rights’ as ‘bogus’ then same should always be processed to give it its natural fate. [P. 325] E

Mr. Shaikh Muhammad Yousuf Khatri, Advocate for Petitioner.

Mr. Ishrat Lohar, Advocate for Deputy Commissioner Hyderabad.

SyedGhulam Nabi Shah, Advocate for Secretary LUD.

Mr. Ashfaque Nabi Kazi, AAG a/w Mrs. Anita Shah, D.S.C.U. Department.

Mr. Attaullah,Addl. Deputy Commissioner-I on behalf of D.C. Hyderabad.

Date of hearing: 23.1.2015.

Order

The back-ground of the instant matter has been that present petitioner, in fact, had approached this Court for issuance of direction for lodgment of FIR regarding illegal encroachment/occupation over subject matter i.e a religious place “Kali Maai ka Phera” and grave yard situated within the limits of Police Station Airport, thus in order to preserve the rights of minorities in view of dictum laid down by the apex Court in Suo-moto Case No. 1/2014, the Deputy Commissioner Hyderabad was directed to inspect the site and submit his report. The report was taken on record which pointed out availability of government land measuring 32253-09 acres out of which allotments stood made leaving an area of 20000 acres only. Therefore, the matter was converted into petition for determination of following questions:--

(i) determination of ‘Kali Maai ka Phera’ & that of grave-yard;

(ii) determination of said to be one falling within meaning of ancient & monument;

(iii) disposal of available government land for ‘public purpose’ within directive (s) issued by Honourable Apex Court;

(iv) whether allotment of more than 12000 acres land, out of such Government land, had been within parameters for such grant or otherwise;

1. Notice(s) were issued to Secretary Land Utilization Department so also to archeology department. The report submitted by the Secretary to Government of Sindh, Land Utilization Department, speaks that an area of 10260-20 acres was allotted for different housing scheme(s) of Societies or cooperative societies so also to others. In addition to this, a letter of the Land Utilization Department dated 11.9.2014, attached, also reflects that an area of 100 acres was allotted to Mr. Amanullah Siyal, Chairman M.S Mehran Co-operative Housing Society Ltd. Hyderabad. The perusal of the letter contains Para-3 which reads as under:

‘It may be stated that the Honourable Supreme Court of Pakistan has imposed complete ban on further transactions in Suo-Moto Case No. 16 of 2011 passed on 28.11.2012. However, after lifting of ban of Honourable Supreme Court of Pakistan, till then the same letter may be treated as allotment order and as per also legal opinion of Chairman, Sindh Government Lands Committee vide No. CSGLC/083/2013, dated 28.08.2013 (copy enclosed)’

The above para makes it clear that the Land Utilization Department has been in active knowledge and notice of the pending proceeding before the Honourable Supreme Court of Pakistan and even that of order dated 23.6.2014 passed in Suo Moto Case No. 16 of 2011 which, for convenience, is reproduced hereunder:--

“We may at this stage clarify that this order staying the allotment/grant of long leases was meant to ensure that the land is not either leased out or allotted for reasons other than bona fide and to land grabbers and this would not prevent the competent authority in the Federal or Government of Sindh to allot or lease out land for a project approved by the concerned authority which directed towards establishment of any industry or automotive plant or power generating plant or any other initiative in public interest and in accordance with law and the relevant rules. The learned Advocate General Sindh shall convey this order to the Chief Secretary and all the provincial secretaries to ensure that the earlier order is not misconstrued and no such project is held up on that account’.”

1. What appears from the above order of the Honourable Supreme Court of Pakistan that stay order regarding allotment/grant was not lifted but through the above order the Honourable Supreme Court of Pakistan made it clear that ‘the earlier order is not misconstrued’ and earlier order (stay-order) should not be ‘misconstrued’ to delay or refuse legal grant/allotment of ‘no such project’. In other words, the stay order was relaxed for a project approved by the concerned authority, falling within meaning of:

(i) establishment of any industry or automotive plant or power generating plant; or

(ii) any other initiative in public interest:--

The terms ‘industry’, ‘automotive plant’ or even ‘power generating plant’ need no explanation so does the term ‘public interest’.

1. At this juncture, to show the importance of the term ‘public interest’ and the fact that how jealously the same is to be guarded, I would like to refer the order dated 11.9.2009, passed by the honourable Supreme Court of Pakistan in Suo Moto Case No. 14 of 2009 that:

“This Court rejected the petition for leave to appeal observing that he acquired these lands by virtue of the said leases. After the rejection of the Petitions for Leave to Appeal that the Court also made another important observation that the petitioner obtained the land grants against all the rules, conditions of allotment under the law, existing ban and also rules of business.”

Thus, it shows that this was meant to make it clear that ‘grants’ were/are made by the ‘authority’ while departing from rules and procedure, therefore, in same order it was further held that:

“No one in authority, whosoever high office such person in authority may be holding, has any power, jurisdiction or discretion to distribute any public property or asset and in these cases extremely valuable lands, on nominal consideration, which land or asset essentially belong to the People of Pakistan. It was patently mala fide exercise of power. This Court further ordered that the grants of lands to the petitioner specially in the manner, the same was done are prima facie violative of Article 3 (elimination of exploitation) Article 25 (equality clause) and Article 31 of the Constitution of Islamic Republic of Pakistan which requires the State to endeavour to promote observance of Islamic moral standards and Article 38 of the Constitution which interalia requires the State to secure the well being of the people by preventing concentration of wealth in the hands of a few to the detriment of general interest. The grant of lands to the petitioner in these cases were reprehensible acts on the part of the highest executive authority in the province, totally alien to the concepts of Islam.”

In another case, reported as 2014 SCMR 1611, it was held with regard to manner of exercise of powers by an authority regardless of its status that:

1. Looking at the powers of the Chief Minister for allotment of public property, here a reference to the case of Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning Karachi and others (2008 SCMR 105) will be useful wherein this Court has observed as under:--

“3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned’ would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907 and (ii) Taj Muhammad v. Town Committee (1994 CLC 2214).”

(Underlining has been supplied for emphasis)

From above, following should, no more, be disputed:--

(i) State land is the public property, which can’t be disposed by Chief Executive of province being custodian, at his wishes.

(ii) The authority is meant and believed to act to protect such property which includes disposal of such property at proper market rate/price;

(iii) an illegal order, regardless of status of person, passing/issuing it shall not have binding effect upon subordinate.

The above proposition of law, permits me to say that the ‘authority’ is competent to create and generate ‘revenue’ through different modes, including disposal of the ‘State land’, so provided by the Law but such competence and jurisdiction should never be used nor should be allowed to be exercised in an arbitrary manner but must be shown to have been exercised bona-fidely in its true sense, keeping the “public interest’ at its place which is nothing but supreme to all other interests. A disposal of the State land shall not equate the term ‘public interest’ unless a mechanism is resorted to create a competition so as to generate maximum ‘revenue’ which, undoubtedly is expected from every owner (in case of State land the citizens of Pakistan are always believed to be acquiring such ‘status’). The power of the disposal of the government land should remain with competent authority but subject to a mechanism ensuring guarantee to ‘public interest’ and same should not be allowed to be preyed only on joining of hands by two.

1. In above back-ground, pertinent to say that a grant/allotment of government land, if made for housing scheme (s), shall not equate the term ‘public interest’ particularly when it is being made without ‘open auction’ because the ‘housing scheme’ may, undoubtedly, be under the plea to provide shelter to someone but patently the term ‘someone’ cannot equate the term ‘public-at-large’ hence interest of the ‘public-at-large’ could only be protected if the maximum ‘revenue’ is generated which, undoubtedly, is believed to be used for interest and betterment of ‘public-at-large’. The developer may earn money but not at the cost of ‘public interest’ i.e. getting value of the government land fixed much less than its due (as was the object of order of Suo Moto Case No. 14/2009). Thus, the process of allotment of the government land should not start by making an application but should start from wide publication as is mentioned in the Para-2 of Condition-3 for grant of State Land for non-agricultural purpose, so published vide Notification No. 09-294-03/SO-I/336 Karachi 25th February, 2006 i.e:--

No land shall be disposed of--

(a) for commercial purpose except by open auction at a price not less than the market price;

1. Whereas, the requirement of ‘open auction’ is not attached for disposal of the State Land for other purposes including ‘incremental housing’ or ‘project’, so defined in above referred notification of ‘statement of conditions’ which is completely in negation of dictum laid down by honourable Supreme Court of Pakistan in Suo Moto Case No. 14 of 2009 at para-2 with regard to the object of ‘Sindh Urban Land, (Cancellation of Allotment, conversions and Exchanges) Ordinance, 2001’ as:

‘In the year 2001, the Sindh Urban Land (Cancellation of Allotment, Conversions and Exchanges) Ordinance, 2001 was promulgated, the purpose of which was to provide for cancellation of certain allotments, conversions or exchanges of urban state land obtained or granted for residential, commercial or industrial purposes at rates lower than the market value, in violation of law or ban from 1st January 1985 and to provide for matters connected therewith are ancillary thereto.’

1. It is germane to state that the requirement of ‘open auction’ should have been in all cases of disposal of Government/State Land else the directive(s) of Honourable Supreme Court, issued in above referred case and Articles of the Constitution, dealing with rights of people and equal treatment shall fail. It is not a disputed position that ‘ban’ over allotment of Government/State Land is continuing and relaxation has been allowed by Honourable Supreme Court of Pakistan only for specific ‘projects’ and a housing scheme does not, prima facie, appear to be one falling in such exception, therefore, allotment in name of ‘housing scheme’, in existence of ban and of directive (s) of Honourable Apex Court, seems to be a deliberate, pejorative and intentional attempt to deceive the purpose and objective of such ‘ban’ and ‘directives’. Needless to add that any such attempt shall create no binding effect upon the subordinate officials who, being custodian of public rights and interests, are believed to resist the same or least make the position clear to such an ‘authority’ as has been held by Honourable Apex Courts.

2. Let me add a little more that the work of the ‘leasing authority’ does not come to an end by passing on ‘lease or grant’ but since such grant/lease is always in shape of a ‘contract’ hence the authority continues with full and complete responsibility to have a continuous watch to examine whether ‘lessee’ standing well with the purpose and object of the ‘lease/grant’ or otherwise?. This is so, for simple reason that a lease only creates those rights which the contract permits and, in no way, dress the ‘lessee’ up with status of ‘absolute owner’ who is entitled legally to enjoy property as per his wishes. It is not the status of the ‘lessee’ which may be company, person or department even, but it is the object of the lease/grant which matters. The ‘lessee’, regardless of its status, may have a right to create a sub-title but cannot change the object and purpose for which the lease/grant was made, which is to be protected by the ‘lesser’ under all circumstances. The ‘lesser’ (government authority, being custodian of rights and interest of the public) is not supposed to be a silent spectator but is believed to knit a blanket, assuring the subject (people), the guarantees of their rights, interests and claims, under it. This can never be achieved unless the officials starts treating all cases on scale of ‘equity’ and start daring to resist an illegal order, even if, it is passed by the superiors. A breach or an illegality always continues to be a ‘breach/illegality’ and a mere lapse of time shall, in no way, be sufficient to convert an ‘illegality’ into a ‘legality’ hence the Land Utilization Department was/is believed to make it sure that no breach or illegality of grant/lease goes unchecked particularly when the ‘contract’ permits penal action, including cancellation of lease/grant, against the ‘lessee’.

3. Further, report of the Utilization Department, submitted, reveals that there have been made number of allotments/grants, even after 28.11.2012 i.e order passed by honourable Supreme Court of Pakistan in Suo Moto Case No. 16 of 2011 and most of them for ‘housing schemes’ and even to individual. Such act shows that such allotments are in negation of order passed by apex Court in Suo Moto No. 14/2009, which, otherwise, is of binding effect upon all organs of the State.

4. Accordingly, the Land Utilization Department is directed to enquire in the matters of allotments and un-do all the illegal allotments in respect of State land including the allotments mentioned in report submitted before this Court with compliance report. Such report shall also indicate the steps taken in case of breach/violation of the lease. Compliance report should be placed within two months through Additional Registrar of this Court.

5. Further, the report submitted by Secretary Land Utilization, also shows the ‘remarks’ regarding Entry No. 8 of VF VII-A (at Sr.No. 9 of list of allotted/granted lands, prepared by Mukhtiarkar & Assistant Commissioner Latifabad Taluka) to be ‘Bogus entry’. A Bogus entry is not to be kept in record nor should be allowed to be used to exploit right, title and interest of government land hence where revenue authorities themselves claimed an ‘entry in record of rights’ as ‘bogus’ then same should always be processed to give it its natural fate. Therefore the Deputy Commissioner is directed to initiate legal process in this respect with further direction to submit the details whether there has been any breach of the allotment or statement of conditions by the ‘lessees’. Such report should reach to this office within a period of one month.

6. The Utilization Department is also directed to strictly follow the directions of honourable Apex Court so also factum of ‘ban’ over allotment of the State Land which be not deceived by disposing of State land even by colouring it as conditional allotment for housing schemes etc, so it appears from allotment of 100 acres to Mr. Amanullah Siyal, Chairman M.S. Mehran Co-operative Housing Society Ltd. Hyderabad despite ‘ban’ and pendency of Suo Moto Case No. 16 of 2011. The Land Utilization Department is supposed and believed to strictly work within directives of Honourable Supreme Court of Pakistan hence should not attempt to create its own new room with an object to over-steps such binding directives of Honourable Apex Court.

7. Regarding Points No. (i) & (ii), the archeology department reported that ‘Kali Maai Ka Phera’ does not enlisted in protected Heritage/Antiquity under the Antiquities Act, 1975 or Sindh Culture Heritage (Preservation) Act-1994 and further reported that no traces of ‘grave-yard’ were found. Here, it is necessary to make clear that Antiquity Act, 1975 or Ancient Monument Preservation Act, 1904 are not meant to protect only those which are so declared under the relevant law but shall also include other thing, so defined as ‘Ancient’ or ‘Antiquity’, therefore, the archeology department shall revisit the site to find out existence of ‘Kali Maai Ka Phera’ or to report non-existence of any such claimed thing.

8. Since the SHO, PS Airport has submitted the report wherein categorically mentioning that present petitioner had no legal document of ownership hence the petitioner is not entitled to seek direction of lodgment of FIR against encroacher, however, such encroachment, shall be removed by the quarter concerned in accordance with law under intimation to this Court. The Deputy Commissioner shall ensure proper legal measure to remove encroacher (s) from Government land but strictly in accordance with law.

9. Office shall send facsimile copy of this judgment to Chief Secretary, Member Board of Revenue, Secretary Land Utilization, Commissioner(s), and Deputy Commissioner(s), all over the Province, for compliance.

The petition stands disposed of in above terms

(R.A.) Petition disposed

PLJ 2015 Karachi 327

Present: Shahnawaz Tariq, J.

KHUDA BUX and another--Petitioners

versus

SHO, P.S. GARHI KHUDA BUX, DISTRICT LARKANA and 5 others--Respondents

C.P. No. S-558 of 2015, decided on 15.6.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Pressurizing and compelling to pay outstanding amount--Acts tantamount to cause harassment--Undue harassment and unjustified demands--Challenge to--Restraining from causing harassment with direction not to compel or pressurize for recovery of amount without due process of law--Validity--Petitioners had invoked Constitutional jurisdiction of High Court with mala fide intention and they not only wasted time of Court but also caused harassment and mental agony to respondent by dragging him in Court--Consequently, to curb such evil elements and discourage mal-practice, instant petition being frivolous stands dismissed. [P. 329] A

Petitioner present in person.

Mr. Naimatullah Bhurghri, State Counsel for Respondents.

Date of hearing: 15.6.2015.

Order

Through the captioned Constitution Petition, petitioners namely Khuda Bux Kourejo and Shamshad Ali Kourejo have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution. Petitioners have sought following reliefs:--

(a) That this Hon’ble Court may be pleased to call upon Respondents No. 1 to 3. so also private Respondents No. 4 restraining them from causing harassment to petitioners in any manner, with further directions to them not to compel or pressurize petitioners for recovery of amount outstanding against them without due process of law;

(b) Direct the official respondents to provide adequate protection of law to the life, liberty, property and honour of the petitioners as guaranteed under the Constitution;

(c) To direct official respondents not to register any deliberate false F.I.R/cases against the petitioner’s at instance of private respondent;

1. Relevant facts spelt out from the instant petition are that there are some outstanding amounts of Respondent No. 5 against the petitioners which were received by them in connection of government service but appointment letters issued in the name of Respondent No. 5 were found fake. It further stated that petitioners are ready and willing to pay the said amounts, but within some span of time and in easy installments, but the Respondent No. 5 has been demanding payment of said huge amount instantly. It is further averred that petitioners many times clarified to the Respondent No. 5 that they are unable to pay such huge amount promptly, whereupon he became annoyed and has been extending threats of dire consequences to the petitioners to implicate them falsely in criminal cases, as he is an influential person of the locality. It is also stated that official Respondents No. 1 to 3, at the instance and behest of private respondent, have been calling petitioners at police station and pressurizing and compelling them to pay the outstanding amounts immediately, while the matter between the parties is of a civil nature and petitioners intend to avail appropriate remedy by approaching the competent Court of law but the official respondents with mala fide intention and ulterior motives, have been interfering into their dispute and their acts tantamount to cause harassment which has created panic not only for petitioners but also for their family members. It is further asserted that due to undue harassment and unjustified demands, petitioners approached Respondent No. 4, SSP Larkana and requested him to intervene into the matter and provide protection to them but of no avail.

2. Petitioner Khuda Bux present in person submits that petitioners received amount from Respondent No. 5 for issuance of appointment letters for government job and they are ready to repay the outstanding amount to Respondent No. 5 but he has been compelling them to refund the outstanding amount instantly, which is purely illegal and respondent may be restrained from causing the harassment.

3. Learned State counsel files comments on behalf of Respondent No. 1 to 4 which are taken on record and copies supplied to the petitioners. He further contended that neither petitioners had approached to the official respondents nor they had called them to pay the outstanding dues and petitioners have levelled the false allegations with ulterior motives.

4. Mr. Inayatullah G. Morio, advocate fees vakalatnama on behalf of Respondent No. 5, which is taken on record. He contended that petitioners had provided fake and bogus photocopies of appointment letters, offer letter, posting letter and service book; he filed photocopies of all the referred documents which are taken on record. He further submitted that petitioners had received Rs. 5,00,000/- against the first appointment letter and Rs. 3,00,000/- against second appointment letter and in all they received Rs. 8,00,000/-. He further emphasized that on demand of return of said amounts by Respondent No. 5, petitioners instead of repaying the said amount, have caused the harassment and mental agony to them by filing the instant petition.

5. Perusal of the material available on the record and consideration of arguments advanced by the parties emanate that indeed petitioners had received an amount of Rs. 5,00,000/- from Respondent No. 5 and handed over appointment letter dated 10.02.2012, in the name of respondent, in PTDC Motels (N) as clerk which was found fake. Subsequently, petitioners again provided Respondent No. 5, another offer letter dated 18.12.2012, in his name for the appointment to the post of JST, order dated 01.01.2013 issued by Directorate of School Education, Karachi Region, posting order dated 16.07.2013, service book as JST and undertaking executed by Petitioner No. 1 on a stamp paper but all said documents were also bogus.

6. Considering the above facts and circumstances, it is crystal clear that the petitioners had received Rs. 8,00,000/- from Respondent No. 5 and twicely provided him fake and bogus appointment orders and said facts have been candidly admitted by the Petitioner No. 1. Conversely, the official respondents have vehemently denied the allegations levelled by the petitioners and took stance that none of the parties had approached them for intervening in the dispute going on between them. In the purview of the admission of facts by the petitioners, I am clear in my mind that petitioners have invoked the Constitutional jurisdiction of this Court with mala fide intention and they not only wasted the time of the Court but also caused harassment and mental agony to the Respondent No. 5 by dragging him in Court. Consequently, to curb such evil elements and discourage the mal-

practice, instant petition being frivolous stands dismissed with a cost of Rs. 10,000/- each to be deposited within 15 days in dispensary fund of this Court at Larkana, and in case of failure to deposit the cost within the stipulated period, the SSP Larkana, be directed to recover the same amount and deposit it with Additional Registrar of this Court, who will deposit the same in relevant account referred supra.

(R.A.) Petition dismissed

PLJ 2015 Karachi 330 (DB)

Present: Aqeel Ahmed Abbasi & Muhammad Junaid Ghaffar, JJ.

M/s. STANDARD CHARTERED LEASING LTD., KARACHI through Authorized Attorney--Petitioner

versus

FEDERATION OF PAKISTAN through Office of Deputy Attorney General and 4 others--Respondents

C.P. No. D-722 of 2012 & Misc. No. 3987 of 2012, decided on 16.1.2015.

Constitutional of Pakistan, 1973--

----Art. 199--Constitutional petition against interlocutory orders--Maintainability--Petitioners are not authorized in law and fact to impugn the order passed by Banking Court as it is in nature of an interlocutory order whereby, an opportunity has been provided to parties to explain their position with regard to discrepancy in statement of accounts submitted by them. [P. 332] A

2004 CLD 587, 2013 CLD 2033, 2012 CLD1858, 2002 CLD 137, 2007 CLD 1365, 2004 CLD 7 & 2008 CLD 1252, ref.

Mr. Asad Rizvi, Advocate for Petitioners.

Mr. Azizullah DAG.

Mr. Mukhtar Ahmed Kuber, Advocate for Respondent No. 3.

Date of hearing: 16.1.2015.

Order

Aqeel Ahmed Abbasi, J.--Through instant petition the petitioner bank has impugned the order passed by the Banking Court-IV at Karachi in Suit No. 164/2008 whereby before passing the final judgment and decree the Banking Court has formulated the following issue:

“Whether the sale of repossessed buses so adjusted was legal and in accordance with the than prevailing value of the said buses?

1. Learned Counsel for the petitioner submits that the petitioner filed Suit for Recovery of Amount against the respondent after complying with the provisions of Section 9 of the Recovery Ordinance, 2001, whereafter, the respondent filed leave to defend, application which was dismissed by the Banking Court vide order dated 11.1.2010 and thereafter the matter was being fixed for announcement of judgment. However, per learned Counsel, instead of passing the final judgment and decree the Banking Court has formulated the aforesaid issue which could not be done once the leave to defend application has been dismissed on merits. It is further contended by the learned Counsel that instead of framing the issue, the learned Banking Court could have passed the final judgment and decree wherein such aspect regarding valuation of the buses and adjustment of amount could be considered and decided.

2. Conversely learned Counsel for the respondent has raised on objection as to maintainability of the instant petition which according to the learned Counsel, is not maintainable as it has been filed against an interlocutory order, which does not suffer from any error or illegality. It is contended by the learned Counsel for the respondent that reference to dismissal of the leave to defend application in the instant case by learned Counsel for the petitioner is misconceived as it has no bearing on the impugned order which has been passed by the Banking Court while examining the statement of accounts filed by the parties as per directions of the Court. Per learned Counsel, since there was a clear discrepancy with regard to the amount which has been shown by the respondent in the statement of accounts amounting to Rs. 1,90,00,000/- being the forced value of the buses, which were repossessed by the Bank illegally before filing the suit, and the amount as shown by the petitioner bank i.e. Rs. 1,01,00,000/- the amount adjusted towards outstanding liability, instead of Rs. 1,90,00,000/- which was duly assessed and shown as forced value by the bank itself. Per learned Counsel it is the duty of the Banking Court that before passing the final, judgment, and decree, to examine and determine all such disputes, including the reconciliation of the statement of accounts filed by the parties, whereas, in case of any discrepancy or dispute between the parties they are, to be confronted before passing the final judgment and decree in this regard. Learned Counsel further submits that the Banking Court has acted strictly in, accordance with law and has provided an opportunity to the petitioner to explain such position to avoid any further litigation in this regard whereas, the petitioner is at liberty to explain their position in respect of the discrepancy and the issue which has been raised by the Banking Court vide impugned order. Learned Counsel further argued that; without prejudice to hereinabove, the petitioners are not authorized in law and fact to impugn the order passed by the Banking Court in the instant matter as it is in the nature of an interlocutory order whereby, an opportunity has been provided to both the parties to explain their position with regard to discrepancy in the statement of accounts submitted by them. In support of his contentions learned Counsel for the respondent has placed reliance in the following case law:--

(1) C.M. Textile Mills (Pvt.) Limited vs. Investment Corporation of Pakistan (2004 CLD 587)

(2) Bank of Punjab vs. M/s. AMZ Ventures Ltd. (2013 CLD 2033)

(3) Sajid Brother vs. Manager ABL (2012 CLD 1858)

(4) Ms. Afshan Ahmed v. HBL (2002 CLD 137).

(5) Bashir Seikh vs. State (2007 CLD 1365)

(6) Muhammad Farooq Ahmed v. HBL (2004 CLD 07)

(7) 2008 CLD 1252

1. While confronted with the above factual and legal position learned Counsel for the petitioner could not satisfactorily controvert the submission of the learned counsel for the respondent, however submits that such aspect of the matter could have been taken cognizance by the learned Banking Court while passing the order on leave to defend application.

2. We have heard learned Counsel for the parties, perused the record. From perusal of the record and the order passed by the learned Banking Court while dismissing the leave to defend application it appears that at the time of filing such application the respondent had shown an amount of Rs. 1,90,00,000/-being the value of the buses which were repossessed by the Bank prior to filing the instant suit for the recovery of remaining amount. However, no such dispute was agitated by either party with regard to discrepancy in the statement of accounts filed by the parties. We may observe that the parameters to decide the leave to defend application are well established, whereas, it is the duty of the respondent to raise all such factual and legal objections against the claim of the plaintiff which are to be taken into consideration and to be decided by the Banking Court while passing

the order on such leave to defend application. However, the dispute relating to any discrepancy in the statement of accounts or adjustment of accounts paid or recovered, can be examined and decided after rejection or acceptance of leave to defend application however, before announcement of final judgment and decree. Since, in the instant matter, the final judgment and decree has not been passed so far, whereas and before, passing such judgment and decree the Banking Court has taken cognizance of the discrepancy in the statement of accounts filed by the petitioner and the respondent therefore, we are of the opinion that the Banking Court has committed no illegality or error while confronting the parties with such discrepancy and dispute with regard to adjustment of the amount by the petitioner in respect of sale of repossessed buses even before filing the suit.

1. In view of herein above, we do not find any error in the impugned order passed by the Banking Court, whereas, petition, filed against an interlocutory order, is otherwise misconceived in law and facts which is accordingly dismissed. However, parties may raise all such objections, before the Banking Court and may explain their position on issue as framed by Baking Court, through impugned Order, whereafter, the learned Banking Court may pass well reasoned judgment and decree in accordance with law within a reasonable period of time.

Petition stands dismissed along with listed application in the above terms.

(R.A.) Petition dismissed

PLJ 2015 Karachi 333 (DB)

Present: Syed Hassan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ.

AAMIR MALIK--Petitioner

versus

BANKING COURT NO. II at Karachi through its Nazir and 3 others--Respondents

C.P. No. D-377 of 2014, decided on 10.6.2014.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code (V of 1908), O. XXI, Rr. 66, 89 & 90--Knowledge of execution proceedings as well as filing of amended execution application after passing of modified decree--Issuance of writ of possession as cause of action--Valuation report--Non compliance of provisions--It is an admitted position that petitioner had not filed any application under Order XXI Rule 89 or 90, CPC for setting aside of auction/sale of property--Merely on premises that valuation had not been properly carried out and notice under Order XXI Rule 66 had not been served upon--Such factual assertion of petitioner was not supported by record of Banking Court and petitioner had failed to bring on record anything to contrary--Conduct of petitioner before Banking Court had been such that any indulgence at that stage of proceedings could not be given by High Court, on basis of objections as raised on behalf of Petitioner. [P. 341] C

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code (V of 1908), O. XXI, R. 66--Conduct before Banking Court--Proceedings on basis of objection--Sanctity and presumption of correctness is attached to judicial record.

[P. 342] D

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

----O. XXI, R. 66--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Auction on basis of valuation is not correct as subsequences report of valuation--Validity--Hence objection is misconceived and cannot he appreciated by High Court on basis of material available on record--No notice under Order XXI Rule 66, CPC was served upon petitioner--Amended/modified terms of sale of mortgaged property is required to be done and for such modification and amended sale of terms matter was adjourned.

[Pp. 340 & 341] A & B

M/s. Zeeshan Abdullah & Saalim Salam Ansari, Advocates for Petitioner.

M/s. Ijaz Ahmed Zahid, Waqar Ahmed and Aijaz Ahmed Shirazi, Advocates for Respondent No. 2.

Mr. S.M. Kazim, Advocate for Auction Purchaser.

Date of hearing: 20.3.2014.

Judgment

Muhammad Junaid Ghaffar, J.--Through instant petition, the petitioner has sought the following relief(s):--

“(1) To set aside the impugned order dated 23.10.2013, Sale Certificate dated 7.1.2014.

(2) To set aside letter to vacate possession of the property.

(3) To Direct the respondent to postpone/suspend execution proceedings No. 47/2009 for vacating the suit property dated 9.1.2014 in respect of the suit property till final decision of this Hon’ble Court.

(4) To declare null & void sale/auction proceeding with the bidder.

(5) To restrain the respondents, decree holders, anyone acting on their behalf not to disturb the petitioner, disposes the petitioner from the mortgaged property/suit property i.e. bearing Flat No. 705, 7th Floor admeasuring 1858.95 Square Feets Sea Breeze Condominium Clifton, Block 2, Karachi till Finalization of this Constitution Petition.

(6) Any other relief or reliefs which this Hon’ble Court may deem fit and proper in circumstances of the Constitution Petition.”

1. Briefly stated facts as per the memo of petition are, that the petitioner is one of the legal heirs of deceased Malik Khuda Muhammad who expired in 2007 and had during his lifetime had mortgaged the suit properly bearing Flat No. 705, 7th Floor admeasuring 1858.95 Sq.Ft. Sea Breeze Condominium Clifton, Block 2, Karachi (“property”) with Respondent No. 2 and had obtained a finance facility. Subsequently, Respondent. No. 2 filed a recovery Suit Bearing No. 184 of 2008 before the Banking Court No. II at Karachi. (“Banking Court”) which was decreed in favor of Respondent No. 2 for a sum of Rs. 33,11,762/- along with cost of funds. Thereafter an Execution Application Bearing No. 47 of 2009 was filed by the Respondent No. 2, and on 22.2.2010 auction proceeding for the sale of the said property was conducted and one offer was received in the sum of Rs. 3.6 million, however the offer was not accepted by the learned Banking Court. Subsequently, valuation of the said property was ordered to be conducted and the Valuator submitted its Valuation report dated 08.08.2011 after which on 2.9.2011, second auction was conducted for the sale of the said property but no bids were received. It is further stated that the petitioner filed objections to the auction proceedings on 26.9.2011 and contended that valuation of the said property was on the lower side and must be revised. Thereafter no further proceedings took place till 28.11.2013 when the third auction was carried out and one offer of Rs. 3.7 million was made by auction purchaser (“auction purchaser”) which was accepted by the learned Banking Court and a sale certificate dated 7.1.2014 was issued in favor of the auction purchaser, after which a writ of possession “ was issued on 9.1.2014 which has been challenged in the instant petition by the petitioner.

2. Mr. Zeeshan Abdullah learned Counsel for the petitioner contended that the impugned orders dated 7.1.2014 and 9.1.2014 were illegal and against the mandatory requirements as prescribed under Order XXI Rule 66, CPC. It was further contended that the property was sold at a much less price on the basis of valuation report dated 08.08.2011; whereas the auction was conducted in the year 2013 and the price of the property had appreciated, therefore the auction was not sustainable and liable to be set-aside. Learned Counsel further contended that in fact the petitioner had challenged the judgment dated 23.02.2009 and decree dated 26.02.2009 passed in Suit No. 184 of 2008 by the learned Banking Court through First Appeal No. 17 of 2009 before this Court which was partly allowed vide Order dated 22.11.2011 and subsequent to passing of the said order, the Respondent No. 2 was required to file an amended Execution Application as the decree already passed by the learned Banking Court was no more in field, rather stood modified to the extent of judgment dated 22.11.2011 and decree dated 18.6.2013. Per learned Counsel, hence all such proceedings which had been acted upon by the learned Banking Court were corum-non-judice and fresh Execution proceedings were required to be initialed after passing of such decree and judgment in appeal. Learned Counsel further contended that no notice was served on the petitioner (who is the judgment debtor as well) under Order XXI Rule 66, CPC, and therefore the entire auction proceedings were illegal and liable to be set aside. Learned Counsel also contended that the said property was also mortgaged in another case and such encumbrance has not stated in the proclamation of sale, therefore the impugned auction was liable to be set aside on this ground as well. Learned Counsel next submitted that though the petitioner was being represented before the learned Banking Court, but after passing of judgment dated 22.11.2011 and decree dated 18.6.2013 by this Court, the petitioner was not served with any fresh notice and it was not in the knowledge of the petitioner, that any auction proceedings were being carried on by the learned Banking Court. With regard to the objection raised on behalf of the respondents, that the instant petition was not maintainable as a remedy by way of appeal is provided under the Financial Institution Recovery Ordinance, 2001 (“Ordinance, 2001), the learned Counsel contended that this Court has vide discretionary and inherent powers to convert the instant petition into an appeal under the Ordinance, 2001. In support of his contention the learned Counsel has relied upon the case of Khursheed Begum and others vs. Inam-ur-Rehman Khan and others (PLD 2009 SC 552), Brig. (Retd) Mazhar-ul-Haq and another vs. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), Mst. Zainab Bibi vs. Allied Bank of Pakistan Limited and others (2003 YLR 3274), Mirza Munawar Baig and 5 others vs. Bank Al-Falah Limited and 2 others (2007 YLR 126), M/s. Ripple Jewelers (Pvt.) Limited vs. First Women Bank Limited (2003 CLD 1318), Muhammad Attique vs. Jami Limited and others (PLD 2010 SC 993), Mrs. Shahida Saleem and another vs. Habib Credit and Exchange Bank Limited and 4 others (2001 CLC 126), Messrs Lanvin Traders, Karachi vs. Presiding Officer, Banking Court No. 2, Karachi and others (2013 CLD 1581), Syed Ghazanfar Hussain through Legal heirs others vs. Nooruddin and others (2011 CLC 1303), Muhammad Hashim vs. Presiding Officer, Special Banking Court, Karachi (Offences, in Banks) and 7 others (2007 YLR 2651), Ms. Rahim Iqbal vs. Banking Court No. II & others (2008 CLD 338) and Mst. Ghulam Sakeena vs. Bashir Ahmed and others (2000 CLC 334)

3. On the other hand Mr. Ijaz Ahmed Zahid learned Counsel for Respondent No. 2 (“Bank”) contended that the petitioner was all along on notice before the Banking Court, therefore the objection that no notice was served upon the petitioner is baseless and without any supporting material on record. Learned Counsel further contended that an amended Execution Application was filed by Respondent No. 2, after passing of the Order in appeal by this Court, which has been placed on record through statement dated 20.3.2014. Learned Counsel also referred to diary sheet of the Banking Court dated 21.8.2013 in which the presence of the junior Counsel/Associate of the Counsel for the judgment debtor is recorded and the adjournment sought by the petitioner’s Counsel was granted till 27.8.2013 for hearing of application under Order XXI Rule 66, CPC. Learned Counsel further contended that the proclamation of sale was duly carried out by the learned Banking Court and was served upon all the relevant and necessary parties as per the record of the Banking Court, therefore the objection of the petitioner in this regard is uncalled for. Learned Counsel further contended that the presence of the petitioner’s Counsel is reflected in the diary sheet dated 21.8.2013 which is a matter of judicial record and a presumption lies in favor of the correctness of such judicial record. Learned Counsel also contended that previously the terms and conditions of the sale stood settled in all respects, and it was to be modified only to the extent of the judgment dated 20.11.2011 and decree dated 8.6.2013 by this Court in appeal. Per learned Counsel the same was accordingly done by filing of the amended Execution Application, whereafter notice to all concerned was issued, however the petitioner itself chose not to appear and seek adjournments after adjournments, therefore the objection with regard to notice not being served upon the petitioner is totally misconceived. Learned Counsel also referred to order dated 23.10.2013 passed by the Banking Court wherein the terms of sale under Order XXI Rule 66, CPC were settled in terms of the modified decree dated 18.6.2013 passed by this Court. Learned Counsel next contended that since the petitioner was in knowledge of the pending execution proceedings, therefore the learned Banking Court was not required to issue notice of each and every date to the petitioner, as the petitioner was already being represented through an Advocate, and instead they should have proceeded with the matter, rather than expecting a fresh notice by the learned Banking Court. Learned Counsel further submitted that at least four valuations were carried out in respect of said property and since the said property was also mortgaged in Suit No. 43 of 2003 (Execution No. 22 of 2006) before the learned Banking Court No. III, at Karachi, a valuation was carried out valuation on 18.12.2012, wherein the forced sale value was prescribed as Rs. 3.2 million by M/s. Joseph Lobo (Pvt.) Limited and such valuation was never objected to by the petitioner, therefore the contention of the learned Counsel for petitioner that the auction was carried out on the basis of a valuation dated 8.8.2011 is not correct. Learned Counsel further contended that in the valuation report dated 18.12.2012, the evaluator has observed that the condition of the property is in a very bad shape and more over access to the said property is also not easily approachable at present, and cannot be compared with other properties in the vicinity, therefore the forced sale value of Rs. 3.4, Million was justified which is also reflected from the fact that only one bid was received in respect of the said property. Learned Counsel vehemently argued that the instant petition was neither maintainable, nor it could be converted into an appeal as the same was not also available in the first place. Learned Counsel submitted that no objections to application under Order XXI Rule 66, CPC were filed by the petitioner, therefore no appeal is provided to the petitioner as such question of conversion of the instant petition into an appeal does not arise. Learned Counsel lastly contended that even otherwise the alternate remedy of appeal had become time barred and the instant petition is entirely based on ascertainment of facts for which this Court had no jurisdiction under Article 199 of the Constitution to resolve such factual aspects of the case, therefore the instant petition is liable to be dismissed.

4. Mr. S. M. Kazim Hussain learned Counsel for auction purchaser in addition to adopting the arguments put forth by the learned Counsel for Respondent No. 2, contended that the auction purchaser had lawfully purchased the property in auction and the petitioners are misrepresenting certain facts before this Court, as they have all along appeared before the learned Banking Court and in fact had failed to avail the alternate remedy of appeal and have not come with before this Court with clean hands, therefore no indulgence could be given to them. Learned Counsel submitted that the auction was carried out on 28.11.2013, whereas the instant petition has been filed on 28.1.2014, which is hopelessly barred by time, as the limitation starts from the date the hammer falls and not from the date of confirmation of sale. In support of his contention learned Counsel relied upon the case of Azam Wazir Khan vs. M/s. Industrial Development Bank of Pakistan and others (2013 CLD 974), Nazir Cotton Mills vs. State Bank of Pakistan and others (2007 CLD 1642), Mumtaz-ud-Din Feroze vs. Shaikh Iftikhar Adil & others (2009 CLD 594), M/s. Chawla International vs. Habib Bank Ltd. and others (2003 CLD 956), Mst. Noor Khatoon and others vs. Habib Bank Ltd. and another (2013 CLC 702), M/s. Irisma International & 3 others vs. United Bank Limited and another (2006 CLD 832), Mukhtar Ahmed vs. M/s. United Bank Limited and another (2013 CLD 841), M/s. Ashraf Agro and others vs. Habib Bank Limited (2008 CLD 449), M/s. United Bank Ltd. vs. Mst. Asma Zafarul Hassan (1980 CLC 565), M/s. Kayjay Industries Ltd vs M/s. Asnew Drums (Pvt.) Ltd. and others (AIR 1974 SC 1331 Bombay), Muhammad Ikhlaq Memon vs Zakaria Ghani and others (PLD 2005 SC 819), Pakistan Industrial Credit & Investment Corporation Ltd vs Shahdin Limited (2001 CLC 1267), Mst. Asma Zafarul Hassan vs. United Bank Ltd and another (1981 SCMR 108), Lilaram vs Ghulam Ali @ Essa through legal heirs and others (1991 SCMR 932), Bandu Hari vs Bhagya Laxman and others (AIR 1954 Bombay 114), Narayan Purushottan Bansod vs Ramchandra Mudgalji Choudharkar and others (AIR (35) 1984 Nagpur 177), P.Q. Chemicals vs A.W Brothers and others (2005 CLD 169), Habib Bank Ltd vs M/s. Ajma Corporation and others (2000 CLC 1425), Muhammad Moin vs State Bank of Pakistan and others (2009 CLD 899), M/s. Unicom Enterprises vs Banking Court No. 5 and 2 others (2004 CLD 1452), Muhammad Rafiq vs Federation of Pakistan and 2 others (2013 CLD 1679), Ghulam Mustafa Bughio and another vs Judge Banking Court No. 4, Karachi (2006 CLD 528), Ghulam Rasool Bhatti vs Judge Banking Court No. 4, Karachi (2007 CLD 1578), M/s. UBL vs Banking Court No. IV, Lahore and others (2004 CLD 1114), Muhammad Rafi and another vs Muhammad Ashfaq, Civil Judge, Hasilpur & others (1994 SCMR 2301), Muhammad Abbasi vs SHO Bhara Kahu & 7 others (PLD 2010 SC 969).

5. We have heard all the learned Counsel and have perused the record with their assistance. By consent the instant petition is being finally disposed of at Katcha Peshi stage.

6. It appears that primarily the petitioner has challenged the notice for writ of possession dated 09.01.2014 and has based the issuance of said writ of possession as the cause of action for filing the instant petition. The case of the petitioner appears to be that after passing of the amended decree dated 18.6.2013 in appeal by this Court; the petitioner was not in knowledge of any proceedings of execution being proceeded with, by the learned Banking Court, therefore the mandatory requirement of Order XXI Rules 64 & 66, CPC has been violated, hence the entire proceedings of auction and confirmation of sale are illegal and liable to be set aside. The other contention which has been raised on behalf of the petitioner is, that the property has been auctioned on the basis of a valuation report which was carried out in August 2011, whereas the auction was conducted in November 2013, and in between this period the prices of the property have appreciated to an alarming extent, therefore the reserved price fixed by the learned Banking Court was not correct and the auction carried out on the basis of such valuation cannot be sustained. Though several grounds have been raised by the learned Counsel for the petitioner while arguing the instant petition, however from the perusal of the pleadings, it appears that the learned Counsel for petitioner has argued its case much beyond such pleadings as none of these objections, except with regard to the valuation report and the alleged non-compliance of the provisions of Order XXI Rule 66, CPC were raised through the instant petition. In fact at the time of passing of the interim order in this matter, these two contentions were raised on behalf of the petitioner which have also been recorded in the said order dated 28.1.2014.

7. Insofar as the issue of valuation is concerned, we have been assisted by the learned Counsel for Respondent No. 2, and with which we tend to agree, that a comprehensive valuation was carried out in December 2012 as against the earlier valuation carried out in August 2011. The forced sale value in both these valuations are more or less the same, rather the forced sale value in the year 2011 was Rs. 3.6 Million, whereas the forced sale value in December 2012 was Rs. 3.2 Million, therefore the objection raised by the learned Counsel for the petitioner, that the auction has been carried out on the basis of a valuation conducted in August, 2011 is not correct as subsequent to such report of valuation, another valuation was on record before the learned Banking Court on the basis of which the auction of the said property has been carried out. Hence the said objection is misconceived and cannot be appreciated by this Court on the basis of the material available on record. Insofar as the contention to the effect that no notice under Order XXI Rule 66, CPC was served upon the petitioner is concerned, we have gone through the diary sheet of the learned Baking Court available at page 189 of the file, and have noticed that on 21.8.2013 the associate of the petitioner’s Counsel was present and had received copy of the amended Execution Application filed by Respondent No. 2 in compliance of the decree dated 18.06.2013 passed in appeal by this Court. It has been also observed by the learned Banking Court in the said diary sheet that amended/modified terms of sale of the mortgaged property is required to be done and for such modification and amended sale of terms the matter was adjourned to 12.9.2013. On 12.9.2013 none was present on behalf of the petitioner and in the interest of justice the matter was adjourned to 3.10.2013. On 3.10.2013 again none was present on behalf of the petitioner and once again in the interest of justice one more chance was given to the petitioner and the matter was adjourned to 23.10.2013 for the same purpose. On 23.10.2013 again none was present for the petitioner and the following order was passed by the learned Banking Court:

“Advocate for Decree Holder is present. None present from Defendant/Judgment Debtor side. Terms and conditions are settled. Issue sale proclamation of mortgaged properties. Put off to 28.11.2013 for Nazir report.”

1. Thereafter, the learned Banking Court proceeded with the auction proceedings and on 28.11.2013 the bid filed by auction purchaser was received and on 6.1.2014 the sale was confirmed by the learned Banking Court. From the perusal of the diary sheet it appears that the petitioner was all along in the knowledge of the Execution proceedings as well as filing of amended execution application by the Respondent No. 2 after passing of modified decree dated 18.6.2013 by this Court and in fact had received the copy of the amended Execution application on 21.8.2013. Thereafter the petitioner had chosen by himself not to proceed or participate in the proceedings or to have filed any objections or any other application before the learned Banking Court, with, regard to the sale and auction of the said property. It is an admitted position that the petitioner had not filed any application under Order XXI Rule 89 or 90, CPC for setting aside of the auction/sale of the said property. The case of the petitioner it appears is not of setting aside of sale, but merely on the premise that the valuation has not been properly carried out and notice under Order XXI Rule 66 has not been served upon. Such factual assertion of the petitioner is not supported by the record of the Banking Court placed before us and the petitioner has failed to bring on record anything to the contrary. Now it does not lie in the mouth of the petitioner to come before this Court and raise abjections with regard to the non-compliance of any of the procedure and specially of Order XXI Rule 66, CPC. The conduct of the petitioner before the learned Banking Court had been such that any indulgence at this stage of the proceedings could not be given by this Court, on the basis of the objections as raised aforesaid on behalf of the petitioner. It is also a settled proposition that sanctity and presumption of correctness is attached to the judicial record. Learned Counsel for the petitioner has not been able to satisfactorily controvert such position, except arguing that none had appeared on behalf of the petitioner on 21.8.2013. Such contention and or line of arguments cannot be accepted by this Court merely on the assertion of the petitioner without having any supporting material on record. This Court in its Constitutional jurisdiction cannot look into such facts of the case and is neither in a position to alter any such factual position.

2. Though the learned Counsel for petitioner has referred to various judgments in support of his contention but we have noticed that none of these judgments as referred to, by the learned Counsel for the petitioner are relevant in the given facts and circumstances of the instant case. Here the petitioner’s case as discussed above is based only on two grounds; one is the lesser valuation of the property or the valuation being carried out much prior to the conduct of the auction proceeding; second being the non-compliance of Order XXI Rule 66, CPC. We have already answered both these objections as aforesaid, therefore the judgments so referred by the learned Counsel for the petitioner cannot be considered as they are of no help to the case of the petitioner.

3. In addition to this the learned Counsel for the petitioner has forcefully relied upon the case of Lanvin Traders (Supra) to contend that the petitioner’s case is fully covered by the said judgment of the Honorable Supreme Court and the controversy in like matters has been put to rest, as such the instant petition is liable to be allowed on the basis of the said judgment. We have perused the said judgment of the Honorable Supreme Court in the case of Lanvin Traders (Supra) and in our opinion the ratio of the said judgment is not applicable to the facts of the instant petition as the price fetched in the instant matter is more than the decretal amount; the terms of sale were properly settled by the Banking Court in terms of Order XXI Rules 64 & 66.CPC, wherein the amount of decree, market price and Forced Sale Value were mentioned hence substantial compliance of law was done; neither any enhanced offer was ever received nor the petitioner had given any offer nor had brought any other buyer or bidder for the purchase of the said property. In view of such admitted facts in our view the said judgment is of no help to the case of the petitioner as the facts of the petitioner’s case are entirely and materially different from the case of Lanvin Traders (Supra) which had prevailed upon the Honorable Supreme Court to set aside the auction/sale of the property in that matter.

4. Since we are of the opinion that the instant petition is not maintainable even on merits of the case therefore we need not answer the objection as to whether the instant petition can be converted into an appeal or not as such exercise would be a futile one.

5. In view of hereinabove, we are of the opinion that the petitioner has failed to make out any case of indulgence from this Court; consequently the instant petition is dismissed with all pending applications(s). Office is directed to send a copy of this order immediately to the Banking Court No. II at Karachi further proceedings in the matter in accordance with law.

6. Petition stands dismissed.

(R.A.) Petition dismissed

PLJ 2015 Karachi 343

Present: Salahuddin Panhwar, J.

MUHAMMAD AMEEN--Petitioner

versus

WALI KHAN--Respondent

1st Appeal No. 13 of 2010, decided on 12.2.2015.

Negotiable Instruments Act, 1881 (XXVI of 1881)--

----S. 118--Civil Procedure Code (V of 1908), O. XXXVII Rr. 1 & 2--Summary suit--Dishonoured of cheques--Un-conditional promise to pay amount on demand or at fixed or determinable future time--Negotiable instrument--Validity--Though a negotiable instrument is always carries a presumption of its being an unconditional promise to pay amount on demand or at fixed or determinable future time but by no imagination it can be believed that execution of a document (negotiable instrument) can be for any other purpose but to clear (pay-up) certain liability (consideration) though not need to be referred/mentioned in such a document--Though, presumption, is rebutable but once it prima facie appears that a document is qualifying definition of negotiable instrument’ lis would require to be dealt within meaning of provision of Order XXXVII of CPC else presumption, though rebutable, attached with `negotiable instrument’ shall loose its purpose--Even if before execution of a, ‘negotiable instrument’ parties were under certain liabilities through some written agreement, that would not be sufficient to deprive one from resorting to course, provided by Order XXXVII of CPC if it is established that earlier liabilities were settled by execution of ‘negotiable instrument’.

[Pp. 346 & 347] A, B, C & D

Mr. Faraz Ahmed Chandio, Advocate for Appellant.

Respondent No. 1, in Person.

Date of hearing: 19.12.2014.

Judgment

Through instant Appeal the appellant has assailed the legality of judgment and decree dated 26.4.2010, passed by learned 1st Additional District Judge, Badin in Summary Suit No. 01 of 2009 “Re-Wali Khan v. Muhammad Ameen’ whereby suit of the plaintiff/ respondent was decreed.

1. A brief reference of the facts is that plaintiff/respondent filed a Summary Suit against the defendant/appellant wherein claiming that he is a shop-keeper and deals in Electronic appliances. On 10.5.2007 appellant/defendant purchased electronic articles amounting to Rs. 240,000/- on credit to be paid within 12 months. Such agreement was executed and defendant/appellant also issued post dated cheque amounting to Rs. 230,000/- and Rs. 10,000/- in cash. Plaintiff/Respondent No. 1 further pleaded that defendant/appellant issued two cheques for Rs. 60,000/- and Rs. 40,000/- but both were dishonoured so he lodged an FIR No. 177 of 2008 U/Ss. 489-F, 420, 34 PPC with PS Matli and then filed Summary Suit for recovery of the Rs. 230,000/-.

2. In response to process, the appellant/defendant appeared; sought leave to defend the suit wherein denying averments of plaint and pleading that he had purchased some articles on credit amounting to Rs. 30,000/- and issued a cheque of Rs. 30,000/- which he written in figure and then same was tampered.

3. Out of the pleadings, the learned trial Court struck the following Issues:--

4. Whether the defendant took articles (mentioned in annexure “A/1”) worth of Rs. 240,000/- on credit from plaintiff and executed an agreement in favour of plaintiff in presence of two attesting witnesses?

5. Whether the defendant issued a Cheque No. 969103 dated 11.9.2008 of his Account No. 1157-3 of Muslim Commercial Bank Limited, amounting to Rs. 230,000/- to the plaintiff and the same has been dishonoured due to non-availability of cash?

6. Whether the cheque was issued for amount of thirty thousand only and plaintiff has added the figure and word two (2) in it?

7. Whether the defendant is liable to pay an amount of Rs. 230,000/- to the plaintiff?

8. Whether the suit is maintainable in law?

9. Whether the plaintiff is entitled for the relief claimed?

10. What should the decree be?

11. In order to prove the case, the plaintiff/respondent examined himself; produced agreement; agreement form, cheque of Rs. 230,000/- alongwith memo , cheque for Rs. 60,000/- alongwith memo; Shah Wali and Mujahid were also examined by plaintiff/respondent and then side was closed.

12. On the other hand, the appellant/defendant examined himself and closed his side. On conclusion of the trial, the learned trial Court judge decreed the suit vide judgment and decree dated 26.4.2010 which, the present appellant/defendant challenged as Civil Appeal No. 13 of 2010.

13. Learned counsel for the Appellant/Defendant No. 1, inter alia, argued that the suit of the plaintiff/respondent was not maintainable and learned lower Court wrongly admitted the suit Under Order 37 of the Code although the cause, if any, was one of regular suit. In support of his such plea he has relied upon the case laws, reported as 2007 MLS 1215, 2005 CLC 1751, 2014 CLC 1063 and 2012 CLC 1679. He also come forward with another plea that since material issue was not framed by the learned lower Court which materially prejudiced the appellant/defendant hence judgment is not sustainable under the law. To insist his plea, the reliance is placed on the case laws reported as 2001 SCMR 772 and 2013 CLC 1371 and in last he argued that the learned lower Court erred while making appreciation of the evidence brought on record which resulted in drawing an incorrect conclusion i.e decreeing the suit of the plaintiff/respondent and in consequence whereof allowing execution application. In support of his such plea, reliance is placed on the case laws, reported as 2005 MLD 1954, PLD 2008 Quetta-1, 2005 MLD 1761, 2011 CLC 430 and 2014 CLC 1415.

14. The respondent, present in person, while arguing his own case, asserted that not only the suit was proper but all the subsequent event including judgment and order on execution application are well within four corners of law and procedure; no illegality has been committed by lower Court; the appellant/defendant never question the jurisdiction of the lower Court hence he is not legally justified to question the legality thereof. In support of his case he has placed reliance on the case laws, reported as 2011 CLC 191, 2005 MLD 1329 and 2005 SCMR 125.

15. At the very outset, I would like to make it clear here that though a negotiable instrument is always carries a presumption of its being an unconditional promise to pay the amount on demand or at fixed or determinable future time but by no imagination it can be believed that execution of a document (negotiable instrument) can be for any other purpose but to clear (pay-up) certain liability (consideration) though not need to be referred/mentioned in such a document. This position stands clear from the reading of the Section 118 of the Negotiable Instruments Act, 1881 (be referred hereinafter as ‘the Act’). The section reads as under:--

16. Presumptions as to negotiable instrument of consideration.--Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration;

(b) --

(c) --

(d) --

(e) --

(f) --

(g) --

Though, the presumption, referred in the Section 118 of the Act, is rebutable but once it prima facie appears that a document is qualifying the definition of negotiable instrument’ the lis would require to be dealt within meaning of the provision of Order XXXVII of the, CPC else the presumption, though rebutable, attached withnegotiable instrument’ shall loose its purpose.

1. In the instant matter, the respondent/appellant had filed the suit for recovery of the amount with reference to the ‘cheque’ and since a ‘cheque’ within meaning of the Section-6 of the Act has been defined as ‘bill of exchange’ therefore, plea of the learned counsel for the appellant/defendant that the suit should have been filed as ‘regular suit’ is not sustainable.

2. I would also like to make it clear that even if before execution of a, ‘negotiable instrument’ the parties were under certain liabilities through some written agreement, this would not be sufficient to deprive one from resorting to course, provided by Order XXXVII of the Code if it is established that earlier liabilities were settled by execution of ‘negotiable instrument’. This is for simple reason that execution of the ‘negotiable instrument’ itself means to make an unconditional promise to pay a certain sum on demand or at certain future date to the holder which is always against some ‘consideration’. If a contrary view is allowed to hold the field it would not only frustrate the purpose and object of ‘the Act’ but shall also fail the object of Order XXXVII of the Code through which the law, at least, gives a hope for recovery of the amount in a ‘summary manner’. It however, need not be mentioned that if other side succeed in bringing the document out of meaning of ‘negotiable instrument’ then proper course for the holder would be to file a ‘regular suit’ and proceedings under Order XXXVII of the Code which would not defeat the right of holder to establish his claim for recovery of amount in such ‘regular suit’.

3. In the instant matter, the claim of the respondent/plaintiff had been that appellant/respondent had taken certain articles from his shop worth Rs. 240,000/- (Two lacs & forty thousands) under agreement, meant for such purpose and had paid Rs. 10,000/- in cash while payment of remaining amount of Rs. 230,000/- was to be made within 12 months (one year). Appellant/defendant also issued two post dated cheques of Rs. 60,000/- and Rs. 40,000/- respectively, which, however, were bounced so on subsequent approach of respondent/ plaintiff the appellant/defendant issued the cheque in question for whole amount i.e Rs. 230,000/- but it was also bounced so FIR was lodged against the appellant/defendant. The respondent/plaintiff produced all such three cheque (s) in original alongwith memo (s), issued by the Bank.

4. The above position makes it clear that respondent/plaintiff sticking with last cheque which seems to have been an unconditional promise to pay consideration (Rs. 230,000/-), which were due against the appellant/defendant, for purchasing articles. Having issued such cheque, the appellant/defendant made the respondent/plaintiff to believe that he (holder) is possessing an unconditional promise of the appellant/defendant for payment of Rs. 230,000/- on due date, so mentioned in the cheque, therefore, by no stretch of imagination the jurisdiction of lower Court (Order XXXVII, CPC) cannot be said to have been resorted illegally. Further, the rebutable burden was upon the appellant/defendant to have proved the document (cheque) to be not a ‘negotiable instrument’ wherein he failed. Thus, the plea of the learned counsel for the appellant/defendant with regard to jurisdiction of the lower Court is not tenable.

5. Reverting to the merits of the case, the point of determination of the appeal in hand would be that:

‘whether the judgment of the learned trial Court is legal or otherwise?

1. Per claim of the plaintiff/respondent, it stood clear that the respondent/plaintiff had claimed issuance of three cheque (s) to have been issued by the present appellant/defendant which he not only pleaded in his plaint but in his examination and even produced in evidence, in original. Further, the respondent/plaintiff also examined the witnesses of document (agreement) to prove which claim of the plaintiff/respondent finds support from subsequent events i.e issuance of cheque (s).

2. Against such claim of the respondent/plaintiff, the present appellant/defendant in his pleading and examination admitted following claims of the respondent/plaintiff i.e:

(i) the business of plaintiff for giving articles on cash and credit;

(ii) he (defendant) took articles from shop of the plaintiff for Rs. 40,000/-only;

(iii) paid Rs. 10,000/- cash;

(iv) issuance of cheque in favour of plaintiff;

The above admissions make it clear that half of the claim of the respondent/plaintiff was never disputed. However, the appellant/ defendant made following portions of the claim of the plaintiff/ respondent i.e:

(i) the plaintiff not given articles for Rs. 240,000/- but for Rs. 40,000/-;

(ii) the cheque in question was tampered as it was for Rs. 30,000/- and not for Rs. 230,000/-

The appellant/defendant, though had come with said denials/pleas but a reference to cross-examination of the appellant/defendant would leave nothing ambiguous that such denials/pleas stood proved from admissions of the appellant/defendant himself. The relevant portion (s) are referred hereunder:-

“It is correct to suggest that there is no overwriting or erasing word is available on cheque. Further says, the word two is not written in my presence’

`It is correct to suggest that I have not mentioned in my written statement that plaintiff had made addition of Rs. 200,000/- in my cheque after some days’.

`It is correct to suggest that I have issued two more cheques Rs. 40,000/- on 05.8.2007 and Rs. 60,000/- on 15.6.2007 and both the cheques were dis-honoured. Voluntarily says, I paid entire amount to plaintiff but both the cheques were missing.”

From above admissions of the appellant/defendant it is clear that he admitted to have issued all three cheque (s) i.e Rs,40,000/-, Rs. 60,000/- and for Rs. 230,000/- although, per the appellant/defendant, he was to pay only Rs. 30,000/-. If it is believed that appellant/defendant was to pay Rs. 30,000/- only then it is quite unbelievable that he would issue the cheque of more amount than the due. Thus, such stand of the appellant/defendant cannot be believed. Further, admission of the appellant/defendant that cheque in question (for Rs. 230,000/-) contains no over-writing or erasing also goes to support the claim of the respondent/plaintiff. The appellant/defendant though took plea in his examination that first two cheques i.e for Rs. 40,000/- and Rs. 60,000/- were missing but brought nothing on record to substantiate such plea and even he failed in explaining the reason for issuing the cheques of excessive amount than the one due against him i.e Rs. 30,000/-. The appellant/defendant even examined no witness to prove that he had purchased articles from the plaintiff/respondent for Rs. 40,000/- and not of Rs. 240,000/- as was mentioned in the agreement dated 10.5.2007. Accordingly, the point of determination is answered in ‘affirmative’.

1. In view of above discussion and conclusion of point of determination, I am of the clear view that the judgment of the learned trial Court judge is not open to any exception nor any illegality or irregularity has been established by the appellant/defendant. Thus, the same is maintained and in consequence whereof the appeal, in hand, is hereby dismissed with no order as to costs.

(R.A.) Appeal dismissed

PLJ 2015 Karachi 350 (DB)

Present: Muhammad Ali Mazhar and Shaukat Ali Memon, JJ.

MUSLIM COMMERCIAL BANK LTD. through Attorney--Petitioner

versus

ABDUL WAHEED ABRO and 2 others--Respondents

C.P. No. D-1306 of 2012, decided on 26.5.2015.

Constitution of Pakistan, 1973--

----Art. 199--It is well established that Art. 199 of Constitution casts an obligation on High Court to act in aid of law and protects rights within frame work of constitution and if there is any error on point of law committed by Courts below or tribunal or their decision lakes no notice of pertinent provision of laws or is based on mis-reading or non-reading of evidence then obviously High Court may exercise constitutional jurisdiction subject to non-availability of any other equally efficacious and alternate remedy under law--Extra ordinary jurisdiction may be invoked to encounter and collide with extra ordinary situation. [P. 354] A

Constitutional jurisdiction--

-----Rectification in order of Court--Constitutional jurisdiction is limited to exercise of powers in aid of curing or making correction and rectification in order of Courts or tribunals below passed n in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vesting in them--Jurisdiction conferred under Art. 199 of Constitution is discretionary with objects to foster justice in aid of justice and not to perpetuate injustice. [P. 354] B

Constitutional petition--

----Jurisdiction--Equally efficacious and alternate remedy--Substantial justice--Validity--It is also well settled exposition and tenet of law that this Court in its constitutional jurisdiction keep away from interfering findings of facts recorded by Courts below concurrently after right and proper appraisal of evidence and cannot substitute and supplement its own findings--Since dismissal was based on force of inquiry therefore, it was realm and province of Courts below to perceive and become aware of whether an impartial inquiry was conducted or not? [Pp. 354 & 355] C & D

Mr. Javed Asghar, Advocate for Petitioner.

Mr. Hussain Bux Balouch, Advocate for Respondent No. 1.

Ms. Farhana Mangi, State Counsel.

Date of hearing: 13.1.2015.

Order

Muhammad Ali Mazhar, J.--This petition is brought to challenge the order dated 27.2.2012 passed by the Sindh Labour Appellate Tribunal in Appeal No. 391/2010 (L.A.07/2005) and the order 13.10.2005 passed by the Labour Court No. VII, Sukkur in Grievance Petition No. 07/2003.

1. The petitioner is a Banking Company having its head office at Karachi. The Respondent No. 1 was performing his duties as Cashier in the MCB Branch, Rohri. A complaint of misappropriation was lodged against the Respondent No. 1 that he received Rs. 187,434/- but failed to credit it on the same day. The matter was investigated and a report was submitted by Circle Office, MCB Sukkur. The uncle of Respondent No. 1 appeared and undertook that he will repay the amount of Rs. 160,000/-. After charge sheet an inquiry was ordered by the management. The Respondent No. 1 participated in the inquiry and found guilty thereafter he was dismissed from service on 09.08.2003. After dismissal, the Respondent No. 1 served a grievance notice and filed grievance .petition in the Sindh Labour Court No. VII at Sukkur. The labour Court allowed the grievance petition and ordered the reinstatement without back benefits. The order of labour Court was challenged in the Labour Appellate Tribunal by the petitioner and the Respondent No. 1 also assailed the order against the denial of back benefits to him. The appeal filed by the Respondent No. 1 was dismissed for non-prosecution while the appeal filed by the petitioner was disposed of with the modification that dismissal order was converted into stoppage of increment of three years, however, the Labour Appellate Tribunal maintained the order of reinstatement passed by the labour Court so to the extent of reinstatement order, the findings recorded by the Courts below are concurrent in nature.

2. The learned counsel for the petitioner argued that the Courts below passed the orders without appreciating the evidence. At no stage the Respondent No. 1 complained about conduct of inquiry officer or the inquiry. The charges were proved in the inquiry even then if the Courts below were of the view that there was any irregularity in the inquiry, an option should have been given to the employer to conduct an inquiry afresh. He further argued that the Labour Appellate Tribunal itself observed that the Respondent No. 1 was responsible for the shortage of cash which created problems for the bank hence the management was entitled to proceed against him through charge sheet and inquiry, regardless of, the order of reinstatement was maintained. It was not necessary for the management to produce all the witnesses of domestic inquiry in the Court. The charge of misappropriation and or embezzlement was based on documentary evidence. Substantial evidence was produced in the inquiry and also in the labour Court. The Respondent No. 1 did not make any request to call any witness during inquiry or in the labour Court. It is misconceived that while holding inquiry no opportunity was provided to cross-examine all the witnesses produced by the bank. The Respondent No. 1 cross-examined one management witness Irshad Ali Soomro in the domestic inquiry, however, he did not cross-examine other witnesses. It was further averred that the Labour Appellate Tribunal picked the portion of evidence in isolation to support its findings and ignored the testimony of the witnesses and documentary evidence. In support of his arguments, the learned counsel for the petitioner referred to following precedents:--

(1) 1989 PLC 484 (A.F. Ferguson & Company v. Sindh Labour Court No. II & others). Complaint forming basis of charge-sheet against employee, not present before Inquiry Officer at the time of inquiry. Such inquiry would not be fatal if same was held in accordance with well-established principles and statutory rules.

(2) 2002 SCMR 753 (WAPDA v. Abdul Waheed). In the present case charge of corruption/misappropriation was proved against the civil servant. Under such circumstances, the appropriate forum for determining if he was to be allowed to continue in service or not was the departmental authority, whose opinion shall be given due weight, unless otherwise is shown. The departmental authority knows better than anybody else to decide such issue. After the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fiber of discipline in service, besides encouraging others to resort to such illegal activities as to enrich themselves by illegal means with impunity at the cost of welfare of the society for whose benefit they are employed.

(3) 2003 PLC (C.S) 1247 (Sultan Hussain v. National Bank of Pakistan & others). Dismissal from service. Misconduct. Civil servant was served with show cause notice regarding financial irregularities and embezzlements. Civil servant was dismissed from service after inquiry. Appeal before Service Tribunal was also dismissed. Plea raised by the civil servant was that the alleged embezzled amount had already been deposited by him, therefore, penalty of dismissal from service was illegal. Validity. Mere fact that the amount allegedly drawn in fraudulent manner was returned and no loss was caused to the Bank, would not remove the charge of misconduct against the civil servant who being custodian of public and private money was not supposed to act in breach of trust.

(4) 2007 PLC 381 (MCB v. Ghulam Mustafa Channa). Sections 46, 47(3) and 48. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) S.O. 15 (3) (b) and (4). Services of employee serving as Assistant in Bank were terminated after charge-sheeting him and holding inquiry against him on ground of misconduct. Labour Court while acting contrary to the evidence available on record granted relief to employee on the premise that the Bank had not suffered any pecuniary loss. Bank acts as custodian of the public money and the amount whatsoever was deposited was required to be credited in the accounts of customer without any delay and no sooner the trust reposed by the customer on the bank was shaken, the bank would not be in a position to run its business.

1. The learned counsel for the Respondent No. 1 argued that the instant petition is an attempt to drag the Respondent No. 1 to an unlimited period so that the petitioner may avoid the implementation of order. There was no delay in the deposit of cash. Neither any written complaint was on record nor does the deposit slip bear signature of the Respondent No. 1. He was performing his duties on payment counter and not on receiving counter. The payment of defaulted amount was extorted from the uncle of the Respondent No. 1 after keeping Respondent No. 1 in the police custody and under compulsion the statement of the Respondent No. 1 was also obtained admitting his guilt under pressure and coercion. During inquiry no opportunity was given to the Respondent No. 1 to cross-examine all the witnesses which fact has been admitted by the inquiry officer in his cross-examination. The Courts below rightly decided the case after appreciating the evidence. No material illegality or irregularity has been pointed out which requires any interference by this Court in the constitutional jurisdiction against the concurrent findings recorded by the Courts below to the extent of reinstatement of the Respondent No. 1 in service though without back benefit.

2. Heard the arguments. The petitioner has challenged the order dated 27.2.2012 passed by Sindh Labour Appellate Tribunal and the order dated 13.10.2005 passed by the Sindh Labour Court No. VII. The labour Court set-aside the dismissal order of the Respondent No. 1 and reinstated him in the service without back benefits while the learned labour appellate tribunal vide its order dated 27.2.2012 maintained order of the labour Court as regards to the reinstatement in service however, the tribunal had modified the order of the labour Court only to the extent that dismissal order from service was converted into stoppage of increment of three years. The grievance petition was filed by the Respondent No. 1 in the labour Court under Section 46 of the Industrial Relation Ordinance, 2002. If we examine both the impugned orders in juxtaposition one thing is clear that the finding in relation to the reinstatement of the Respondent No. 1 is concurrent. It is also a fact that the Respondent No. 1 also filed an appeal in the labour appellate tribunal against non-allowing of back benefits by the labour Court to him, but his appeal was dismissed for non-prosecution, so there is no further controversy involved against the non-grant of back benefits to the Respondent No. 1. It is well established that Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the frame work of constitution and if there is any error on the point of law committed by the Courts below or the tribunal or their decision lakes no notice of pertinent provision of laws or is based on mis-reading or non-reading of evidence then obviously this Court may exercise constitutional jurisdiction subject to the non-availability of any other equally efficacious and alternate remedy under the law. This extra ordinary jurisdiction may be invoked to encounter and collide with extra ordinary situation. This constitutional jurisdiction is limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the Courts or tribunals below passed n in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vesting in them. The jurisdiction conferred under Article 199 of the Constitution is discretionary with the objects to foster justice in aid of justice and not to perpetuate injustice. However if it is found that substantial justice has been done between the parties then this discretion may not be exercised. So far as the exercise of the discretionary powers in upsetting the concurrent findings recorded by the Courts below is concerned, this Court has to comprehend what gross illegality or irregularity and or violation of law committed by the Courts below which caused miscarriage of justice. It is also well settled exposition and tenet of law that this Court in its constitutional jurisdiction keep away from interfering the findings of facts recorded by the Courts below concurrently after right and proper appraisal of evidence and cannot substitute and supplement its own findings.

3. In the case in hand the Respondent No. 1 was issued a show cause notice and the domestic inquiry was also conducted against him by the management. The dismissal of the Respondent No. 1 is based on the finding of the domestic inquiry. The inquiry proceedings were produced in the labour Court and the inquiry officer and the Branch Manager also appeared as witnesses of the petitioner in the labour Court. Since the dismissal was based on the force of inquiry therefore, it was the realm and province of the Courts below to perceive and become aware of whether an impartial inquiry was conducted or not? The next crucial question for them was to fathom out whether the Respondent No. 1 was allowed ample opportunity of defence in the inquiry or not? Though the allegation against the Respondent No. 1 was serious that he misappropriated cash and the bank found him guilty therefore the right to hold domestic inquiry was rightly exercised by the management but in order to prove the charges or guilt of delinquent, an evenhanded, unbiased and impartial inquiry was indispensible. On the contrary, the Respondent No. 1 took the plea that he was not afforded fair opportunity to defend the charges. Even the inquiry officer appeared in the labour Court as witness of management/petitioner also admitted the lapses, oversights and shortcomings in the inquiry. During inquiry, the inquiry officer only allowed the Respondent No. 1 to cross-examine Irshad Ali Soomro, representative of the management and the Respondent No. 1 was cross-examined by Irshad Ali Soomro. The representative of management produced at least six more witnesses before the inquiry officer but no opportunity of cross-examination was make available to Respondent No. 1. This fact was admitted by the inquiry officer, Shafi Muhammad Shaikh during the cross-examination in the labour Court. Let us reproduce selected excerpts from the cross-examination of inquiry officer:--

“I was enquiry officer in the case of the applicant Abdul Waheed.”

“I have also seen the Annexure filed with the Enquiry Proceedings. I see Annex: ‘B’ at page 20 filed with the Reply Statement and I do not know about this document. This document was not produced/presented before me during the course of enquiry. Voluntarily says that statement of Altaf Khan however was recorded by me.”

“I see Anne: “F” at page 26 of reply statement and say that it is statement of Ghulam Mustafa Bhutto recorded by me. It is correct that it does not bears my signature. It is correct that this also does not bears the signature of applicant. Voluntarily says that signature of Mr. Bhutto is appearing on it, and it is not necessary that each and every page of proceedings is to be signed by the Enquiry Officer or signature is obtained from the person against whom enquiry was conducted. It is correct that page 27 of Annex: ‘F’ is said to be statement of witness Muhammad Hassan recorded by me but does not bears my signature.”

“The statement of witness was recorded in the presence of applicant, and witnesses called one by one. Both the parties were given an opportunity to cross-examine each other. Accused Abdul Waheed cross-examined management witness Irshad Ali Soomro and Management witness Irshad Ali Soomro cross-examined to the applicant. Both statements are available on record.”

“The cross-examination of other witnesses were not conducted. On behalf of Management other statements of witnesses Irshad Ali Soomro, Altaf Hussain Manager, Ghulam Mustafa Bhutto, Kashif Shaikh Cashier, Muhammad Hassan and Abdul Rasheed Ansari Cashier were recorded but opportunity for cross-examination to the accused Abdul Waheed was only given to the extent of witness Irshad Ali Soomro representative of Management.”

“The alleged mis-appropriation was pointed out on 28.5.2003 while it was actually committed on 27.5.2003.”

“It is correct that on 30.5.2003 the alleged amount was deposited by the uncle of the applicant.”

“I do not know if applicant was in police custody from 28.5.2003 to 30.5.2003.”

Another witness Altaf Khan, Branch Manager was also produced in the labour Court and relevant excerpts from his cross-examination are also reproduced as under:--

“At the relevant time I was Manager of the Branch. I was Assistant Vice President of Bank. About 200 to 250 vouchers of debits and credit are prepared daily in the branch. No written complaint prior to the alleged incident was received by me against the applicant. Voluntarily says there were oral complaints about late depositing against applicant Abdul Waheed. It is correct that no action on those oral complaints was taken by me.”

“The alleged incident was pointed out on 28.5.2003. It is correct that at the opening time of 28.5.2003 there was no short fall at all. It is not correct that applicant was in police custody from 28.5.2003 to 30.5.2003. Voluntarily says that applicant was in police custody from 28.5.2003 to 29.5.2003”.

“It is not correct to suggest that the then General Manager of the Area had directed that unless the amount is not paid, the accused should not be released from the custody. Voluntarily says that General Manager had directed that if amount is paid by the applicant as per his written document on the next day, he should be released from the custody. It is correct that on 30.5.2003 the amount was deposited by the uncle of the applicant.”

“It is correct that no monitory loss is sustained by the Bank.”

1. The inquiry officer himself admitted in his cross-examination that besides the management representative five more persons were produced in the inquiry, but they were not allowed to be cross-examined by the Respondent No. 1 during inquiry proceedings. The reply statement filed by the petitioner in the labour Court shows that the inquiry was conducted on the report submitted by the manager and they produced the report of manager with their reply statement as annexure-B but in the cross-examination of the inquiry officer he shown his ignorance about this documents even he admitted that this report was not produced before him during inquiry. The manager in his cross-examination admitted that the applicant was in police custody from 28.5.2003 to 29.05.2003 and the alleged misappropriated amount was deposited by the uncle of the Respondent No. 1. He further admitted that the alleged incident was pointed out on 28.5.2003 and at the opening time of 28.5.2003 there was no short fall at all. Learned counsel for the petitioner argued that the Respondent No. 1 himself signed the statement accepting his guilt. The statement of Respondent No. 1 attached with the petition shows that it was signed on 28.5.2003 and the undertaking submitted by his uncle Allah Lok was signed on 29.5.2003. Both the aforesaid documents were signed on the dates when the Respondent No. 1 was admittedly in the police custody. The manager further admitted in his cross-examination that there was no monetary loss to the bank. The reinstatement order was passed by the labour Court due to defects in the inquiry which is of course for the reasons of not providing ample opportunity to the Respondent No. 1 as out of six witnesses produced in the inquiry the right of cross-examination was afforded to only one witness. The learned Counsel for the petitioner argued that non-providing the opportunity of cross-examination of five witnesses to the Respondent No. 1 does not have any adverse effect on the fate of inquiry. In our view, the acid test whether the evidence is trustworthy or inspiring confidence could be performed only with the tool of cross-examination. The purpose of the cross-examination is to check the credibility of witnesses and to elicit truth or to expose falsehood. When the statement of witness is not subjected to the cross-examination, its evidentiary value cannot be equated and synchronized with such statement that was made subject to the cross-examination. The cross-examination is not just a mere formality but it is a valuable right to bring the truth out. It is also well settled proposition of law that where no opportunity of cross-examination is provided, the testimony of witness would be inadmissible. It is not the case here that during inquiry, the inquiry officer afforded the opportunity to the Respondent No. 1 to cross-examine all the witnesses but he refused, quite the opposite this is a case where no opportunity was provided to Respondent No. 1 to cross-examine the witnesses. Both the Courts below found the inquiry defective and the allegations levelled in the charge sheet/show cause notice against the Respondent No. 1 were found unproved and unsubstantiated.

2. The learned counsel for the petitioner referred to the case of A.F. Ferguson & Company (supra) in which the Court held that complaint forming basis of charge-sheet against employee not present before Inquiry Officer. Such inquiry would not be fatal if it was held in accordance with well-established principles, while in the case of WAPDA (supra) it was held by the apex Court that after the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fibre of discipline in service. In the case of Sultan Hussain (supra) it was held that if the amount allegedly drawn in fraudulent manner was returned and no loss was caused to the Bank, would not remove the charge of misconduct against the civil servant who being custodian of public and private money was not supposed to act in breach of trust, while in the case of same petitioner i.e. MCB v. Ghulam Mustafa Channa (supra) the Court held that the service of employee was terminated after charge-sheeting him and holding inquiry but the labour Court granted relief to employee on the premise that the Bank had not suffered any pecuniary loss.

3. All the aforesaid precedents referred to above by the learned counsel for the petitioner are distinguishable to the facts and circumstances of the present case. In the aforesaid dictums, there was nothing to show that domestic inquiry was conducted, witnesses were examined but no right of cross-examination was given to the delinquent. The purpose of issuing show cause notice and holding of inquiry is to ascertain whether the charges of misconduct levelled against the employee are proved or not. We have no doubts in our mind that in case where charge of misconduct is proved after an impartial and fair inquiry, obviously it is the prerogative and sphere of the employer/management to decide the sternness and severity of the punishment which may include dismissal from service. Concomitantly, the exercise of this power made it obligatory upon the management to provide fair opportunity of defence in the domestic inquiry to an accused employee. If the management appoints an inquiry officer for conducting inquiry in the disciplinary proceedings, it is an onerous duty of the inquiry officer to explore every avenue so that the inquiry may be conducted in a fair and impartial manner and he should avoid razing and annihilating the principle of natural justice which may ensue the miscarriage of justice. We are sanguine that neither the domestic inquiry can be treated at par with the Court proceedings nor the inquiry officer as judicial officer, contrariwise, principle of natural justice cannot be ignored and once a person/employee is subjected to domestic inquiry and evidence is recorded against the delinquent then it is his inherent right to cross-examine the witnesses and if such right is not made available then the testimony of witness against such delinquent would have no dependability or admissibility to decide the guilt. It would not be out of place to mention here that right of fair trial and due process has now become fundamental right in our Constitution under Article 10-A by virtue of 18th Amendment. At this juncture we would also like to quote the case of “Rijomal vs. Tarachand” reported in 2011 CLC 1136, authored by one of us (Muhammad Ali Mazhar, J.) in which it was held that the object of cross-examination is twofold i.e to bring out desirable fact of case modifying examination-in-chief or establishing cross-examiner’s own case and to impeach credit of witness. Cross examination helps in discovery of truth and it is skillful art to extract something in cross-examiner’s favour out of the lips of his opponent.

4. The learned counsel for the petitioner argued that instead of reinstatement of Respondent No. 1 the labour Court could have directed the petitioner to hold fresh inquiry. The inquiry was initiated in the year 2003. The labour Court decided the matter in the month of October, 2005, while the appeal was decided by the labour appellate Court in the month of February, 2012. Since then the Respondent No. 1 is facing miseries of protracted trial that by no means responsible or accountable for the defects perceptible and discernible in the inquiry, there is no rationality to order fresh inquiry which will make the petitioner back to square without his own fault hence we do not want to dwell too much in this regard. So far as the plea that the labour appellate tribunal converted the dismissal into stoppage of increment for three years it would not have any material or any substantial adverse effect when the labour Court as well as the tribunal both found the Respondent No. 1 entitled for the reinstatement in service though without back benefits due to defective inquiry. After maintaining the order of reinstatement in fact the labour appellate

Court allowed some leverage and opportunity to the petitioner for stopping three years increments and even this finding is set-aside, the reinstatement order will remain in field so it is immaterial to travel into its minutiae and niceties when the substantial justice has been done. In fact the conversion of dismissal in stoppage of increment might have given a cause of action to the Respondent No. 1 that despite concurrent findings meant for reinstatement, the tribunal has unjustifiably converted the order of dismissal to stoppage of increment but he accepted this finding and did not challenge in this Court.

1. On 15.5.2012, the learned division bench of this Court issued notice to the Respondent No. 1 and Advocate General but in the meantime the Court suspended the operation of impugned orders only to the extent that the Respondent No. 1 shall not be posted as a cashier of the petitioner bank. Since we maintain the concurrent findings with regard to reinstatement, therefore it is the prerogative of the management to decide the designation and posting of Respondent No. 1 in accordance with the norms of their indoor management.

2. As a result of above discussion, this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2015 Karachi 360

Present: Salahuddin Panhwar, J.

Mst. NAGMA SULTANA through Attorney--Appellant

versus

MUHAMMAD JAMEEL and 2 others--Respondents

IInd. Appeal No. 10 of 2012, R.A. No. 57 of 2012, C.P. No. S-151 of 2012 & M.A. No. 5081 of 2013, decided on 23.1.2015.

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

----S. 151 & O. XLI, R. 21--Eviction application--Not sustainable--Ex-parte judgment/order in a suit and appeal--Validity--One should always keep in mind that a suit is always tried while an appeal is heard--Duty of Court to examine maintainability of suit continued even if matter is one of ex-parte and same position continues in matter of appeal--One should always keep’ in mind that a ‘suit’ is always tried while an ‘appeal’ is heard--Applicant/respondent failed in establishing that he was not ‘duly served’ (not having knowledge of pending proceeding) and in absence whereof instant application becomes devoid of substance and is dismissed, as such.

[Pp. 363, 364 & 367] A, B & J

Ex-parte--

----Scope--Legal status and right--Judicial determination--Proper notice to rival side before proceedings--Since equity always demand a proper notice to rival side before ‘proceeding or hearing with a matter likely to cause any prejudice to rights or interests of such rival party but at same time law cannot be allowed to be defeated or delayed on tricky moves through which a rival avoids service of process (summon/notice). [P. 364] C

Summon--

----Scope--Legal process--Proceedings--Present himself before a Court of law of a specified date and time and object of issuance of summon and notice is nothing but to inform defendant of proceedings that he can appear before Court and be heard or any defence that he may wish to put up; at same time--It has never requirement of law that a summon/notice shall only be presumed to be ‘duly served’ which is acknowledged/received by party himself/herself--This is so for reason information could only be communicated but person, sought to be served, cannot be forced by bailiff to sign.

[Pp. 365] D, E & F

Ex-parte--

----To proceed ex parte requirement would be only satisfaction of Court to effect that defendant or respondent, as case may be, had knowledge of pending proceeding and date of hearing. [P. 365] G

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

----O. V, R. 20(2)--Mode of service--Mechanism of substitute service--Service effected through substitute service--Notice about hearing of matter--Validity--Since it is once established that defendant/ respondent had noticed and knowledge of pendency of proceeding before Court of law and yet he/she stays away then he/she would not be legally justified to seek setting aside of ex parte judgment on plea of not ‘duly served’ because an active knowledge of pending litigation shall amount service of summon (communication of information to interested)--So far as to plea of respondent/applicant that no ex parte order was passed, it would be significant to mention that that is not requirement of law that in appeal matter (s) there must be an order to effect of declaring one ex parte but requirement of law is satisfaction of Court to extent of ‘well time communication of information of pending lis’ (duly served) before hearing appeal where legality of order, appealed, is to be examined by appellate Court, so was done in instant case as is evident from judgment, sought to be set-aside. [P. 367] H & I

Mr. Zaheeruddin S. Leghari, Advocate for Petitioner.

Mr. Sunderdas, Advocate for Respondent No. 1.

Date of hearing: 12.1.2015.

Order

Through instant order, I intend to dispose of captioned Miscellaneous Application Under Order XLI Rule 21 r/w Section 151, C.P.C., whereby applicant (respondent) seeks setting aside of judgment dated 08th May 2013 passed by this Court.

1. Precisely, relevant facts for disposal of instant application are that petitioner (Mst. Naghma), residing in United Kingdom, came in Pakistan and filed eviction application. After filing of eviction application, respondent (tenant) also filed civil suit for specific performance of contract on the basis of sale agreement. Both matters were proceeded in their independent jurisdiction(s). After culmination of trial, suit filed by respondent was dismissed by judgment and decree while eviction application of petitioner was allowed. It is further revealed that both the matters were challenged by respondent in appeals; during pendency of appeal(s), respondent filed application Under Order XLI Rule 27, C.P.C. for additional evidence. Learned appellate Judge after hearing both the parties allowed both application(s) while setting aside the judgments recorded by respective trial Courts with direction to record additional evidence. Being aggrieved, appellant challenged such orders passed by appellate Court before this Court. Repeatedly, notices were issued but respondent failed to appear and thus publication was made but with the same result. In consequence, by common judgment dated 08.5.2013 direction was issued to appellate Court to decide the appeal (s) after providing full opportunity of hearing to parties on available record.

2. Learned counsel for applicant (respondent) inter alia contends that impugned judgment is against the settled principles of civil administration of justice; applicant was condemned unheard and exparte judgment was passed hence applicant has right of hearing, as protected under Article 10-A of Constitution of Pakistan; he further contends that albeit direction was issued for service against them through all modes but no exparte order was passed. In support of his contentions, learned counsel has relied upon the case law reported as Muhammad Khalid alias Khalid Hussain v. Salid Hussain and 11 others (2012 MLD 1112), Messrs Sea Breeze Ltd. through Authorized Officer v. Mrs. Padma Ramshes and another (2012 MLD 39), Zulfiqar v. Muhammad Khan (2002 CLC 932) and Farid v. Muhammad Khurshid and 14 others (2008 CLC 481).

3. Learned counsel for petitioner contends that impugned judgment is in accordance with law; respondents were having knowledge and by impugned judgment matter was remanded back to the Appellate Court where same is pending for adjudication hence instant application is filed purposely in order to linger on the matter.

4. Heard learned counsel and perused the record.

5. At this juncture, it is necessary to mention that through course of Order XLI R. 21 of the Code, the applicant/respondent has sought setting aside of the common judgment, passed in three different matter (s) i.e ‘Civil Revision’, ‘2nd appeal’ and ‘Constitutional petition’. The ‘Revisional jurisdiction’ since is confined to correct jurisdictional error or illegality by the Court (s) below which the Revisional Court shall require to see even if such jurisdiction is initiated suo-moto hence provision of Order XLI R. 21, CPC has no application in revisional matter, as such not sustainable. The same principle will apply in ‘constitutional matter’ if same is resorted as a last resort finding no other remedy to challenge an order of lower Court.

6. Be as it may, I, before going into merits of the case, feel it quite necessary to insist examination of the relevant provision (s) dealing with setting aside of the ex-parte judgment/order in a ‘suit’ and ‘appeal’. One should always keep in mind that a ‘suit’ is always tried while an ‘appeal’ is heard. This would become further evident from the relevant provision (s) dealing with legal question, in hand. The Order IX R. 13, CPC deals with power of setting aside an ex parte judgment in a suit while the Order XLI R 21 of the Code deals with same situation but in matter (s) of appeal. A comparative reference to both provision (s), being relevant, is made hereunder:--

| | | | --- | --- | | Setting aside Decree Ex parte 13. [(1)] In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: | 21.--(1) Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. |

(underlining has been supplied for emphasis)

1. Comparative study of both the above provisions would show that for setting aside an exparte the defendant or respondent, as the case may be, would require to establish that ‘he was not served or to show the circumstances prevented him from appearing’ but consequence of such setting aside in either case (s) is different. In former it is ‘proceeding with the suit’ but in later it is ‘re-hearing of appeal’.

2. Needless to add here that the duty of the Court (s) to examine the maintainability of suit continues even if the matter is one of ex-parte and same position continues in matter of appeal (s).

3. In a suit a legal status and right/claim requires judicial determination which may necessarily require proper reply (appearance of rival side) but the position is not so in appeal because an Appellate Court shall not accept (allow) an appeal without examining the legality or illegality of exercise of jurisdiction by the sub-ordinate Court (s) which, even, would not be dependent upon pointing out of illegalities by appearance of the respondent.

4. The expression ‘ ex parte’ has not been defined anywhere in the Civil Procedure Code. It is a Latin expression and means ‘from one party or side’. Its accepted meaning according to Wharton’s Law Lexicon, 14th edition, is ‘a proceeding by one party in the absence of the other’. This term is applied in Law to proceeding by one party in the absence of, and without notice to, the other.

5. Since the equity always demand a proper notice to rival side before proceeding or hearing with a matter likely to cause any prejudice to rights or interests of such rival party but at the same time the law cannot be allowed to be defeated or delayed on tricky moves through which a rival avoids service of process (summon/notice). Accordingly, the Code first has insisted upon proper service of summon/notice but at the same time has provided a mechanism for the Court (s) to proceed further to properly meet the later situation.

6. The term ‘summon’ is a legal process whereby a person is directed to present himself before a Court of law of a specified date and time and object of issuance of summon and notice is nothing but to inform defendant of proceedings that he can appear before Court and be heard or any defence that he may wish to put up; at the same time. What is necessary to proceed ex parte is satisfaction of the Court that defendant is ‘duly served’ which the Court shall examine to its satisfaction by resorting to all legal procedure (s) for such purpose, which includes public notice (s) through print-media(Newspaper). It has never requirement of the law that a summon/notice shall only be presumed to be ‘duly served’ which is acknowledged/received by the party himself/herself. This is so for the reason that on information could only be communicated but the person, sought to be served, cannot be forced by bailiff to sign. In other words, we can take the horse to the water but cannot make it to water. The reference, if any, can be made to the case law, reported as PLD 1979 SC (AJ&K) 120.

‘The expression ‘duly served’, we think, bears the same meaning as in Order V, rule 19 of the Civil Procedure Code and that it is only means service in such a way as to give information of the suit to the defendant.

The above view, finds complete satisfaction with the providing clause of Order IX Rule 13 of the Code which reads as under:--

[Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be accorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim].

In view of the above discussion, I can safely conclude that to proceed ex parte the requirement would be only satisfaction of the Court to the effect that the defendant or respondent, as the case may be, had knowledge of pending proceeding and date of hearing. Thus, the defendant or the respondent, as the case may be, to succeed in getting an ex parte judgment shall require to establish, to satisfaction of the Court, that he was not ‘duly served’ which would also require to establish the fact of having no knowledge of pending lis (proceedings).

1. Now, I revert to the merits of the case in hand. The para-7 of the judgment in question, sought to be set-aside, being material is referred hereunder:

“Notices were issued to the respondent through all first three modes but could not be served, hence he was ordered to be served through substitute service by way of publication in daily newspaper ‘Nawa-e-Waqt’ on 12.10.2012. Even though he failed to appear before this Court”

The above operative part shows that this Court, before resorting to the course of substitute service, found all three ordinary modes of service to have failed. The Order v. R. 20 of the code deals with mechanism of the substitute service and the Rule XX(2) of Order 5 of the Code says about effect thereof that:

(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Therefore, the service, effected through substitute service, needs not be dislodged merely on the plea of the defendant having not a subscriber/reader of the ‘newspaper’ wherein such notice is got flashed with an object to put the defendant on notice about hearing of matter else the purpose and object of Order V R. 20 of the Code shall stand frustrated and it would let every defendant to come after such whole process to get the ex parte judgment set-aside only by asserting of not having been ‘duly served’.

1. Let it be as it may, the record shows that the applicant has not denied his appearance in proceeding before trial Court even after filing of the instant appeal before this Court. The record further shows that the order of appellate Court was suspended by this Court vide order dated 30.3.2012 which was also communicated to the appellate Court (1st Additional District Judge, Hyderabad) which was communicated to the trial Court as is evident from the diary of the appellate Court dated 09.4.2012. Since the applicant/respondent has not disputed/denied his appearance before appellate Court after judgment of this Court hence it cannot be presumed, by any stretch of imagination, that applicant/respondent had no knowledge and notice of pendency of appeal before this Court particularly where such matter remains continue pending for considerable period.

2. The record further shows that respondent was served through substitute service in daily ‘Nawa-e-Waqt’ on 12th October 2012 and matter was adjourned for 29.10.2012. Again matter was fixed on many occasions but respondent failed to appear and all these three matters were decided but at no material times the respondent/ applicant appeared.

3. Since it is once established that the defendant/respondent had notice and knowledge of pendency of proceeding before the Court

of law and yet he/she stays away then he/she would not be legally justified to seek setting aside of ex parte judgment on plea of not ‘duly served’ because an active knowledge of pending litigation shall amount service of summon (communication of information to interested).

1. So far as to the plea of respondent/applicant that no ex parte order was passed, it would be significant to mention that this is not the requirement of the law that in appeal matter (s) there must be an order to the effect of declaring one ex parte but requirement of law is satisfaction of the Court to extent of ‘well time communication of information of pending lis’ (duly served) before hearing the appeal where legality of the order, appealed, is to be examined by the appellate Court, so was done in the instant case as is evident from judgment, sought to be set-aside.

2. In consequence of what has been discussed above, I am quite safe to say that the applicant/respondent failed in establishing that he was not ‘duly served’ (not having knowledge of pending proceeding) and in absence whereof instant application becomes devoid of substance and is dismissed, as such.

(R.A.) Application dismissed

PLJ 2015 Karachi 367

Present: Muhammad Junaid Ghaffar, J.

M/s. UNION NATIONAL BANK LIMITED through Attorney--Decree Holder

versus

IQBAL AHMED MALIK--Judgment Debtor

Execution Appln. No. 20 of 2004, Suit No. 80 of 2003 and CMA No. 528 of 2009, decided on 20.4.2015.

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

----S. 51--Power to Court to enforce execution--Proceedings of arrest, detention of judgment debtor--Gift does not fall in exceptions provided in Section 51, CPC as property was leased prior to filing of suit--Judgment debtor cannot be sent to prison--Validity--Court in execution proceedings after giving an opportunity of showing cause, may detain a judgment debtor in prison, if Court comes to a conclusion that judgment debtor, has after institution of suit in which decree was passed, dishonestly, transferred, concealed or removed any part of property or committed any other act of bad faith in relation to his property--Detention of judgment debtor in prison is concerned, no such powers can be exercised by High Court under Section 51, CPC with specific reference to proviso (a) (ii), whereas, decree holder has not been able to show any material, whereby, it could reflect that property was dishonestly transferred gifted and or alienated by judgment debtor--Objection has no merits to sustain as decree holder has failed to substantiate same with any corroborating material and has failed to bring on record any such document or evidence whereby such objection can be sustained--No case has been made out on behalf of decree holder, whereby, any order could be passed for detention of judgment debtor in prison in terms of Section 51, CPC--Decree holder has failed to make out a case, whereby property can be attached, as same does not belong to judgment debtor as it stood gifted/transferred/leased/alienated in favor of objector/donee, much prior to filing of suit in instant matter. [Pp. 373 & 376] A, B, C & J

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

----Ss. 12(2), 151 & O. XXI, Rr. 13 & 54--Decree holder filed suit for recovery--Proceeded ex-parte against judgment debtor--Application u/S. 12(2), CPC, dismissal of--Gift was executed much prior to filing of suit for recovery--Question of--Whether property which according to decree holder had been fraudulently gifted/alienated by judgment debtor, can be attached or not--Property was gifted by judgment debtor to his wife through gift deed--Judgment debtor was not absolute owner--Gift was against sharia law--Validity--Property was leased in favour of donee/objector with certain conditions attached to it, hence could not had been gifted or gift was not complete and absolute--Therefore, if there are certain conditions attached to lease in question in that regard, to safeguard interest of lessor, that would not amount to putting a restrictive covenant, whereby, such property cannot be transferred by way of gift/hiba--Neither a Constitutional Court having extra ordinary powers vested in it to exercise discretion in a manner so as to dispense and meet ends of justice out of way, nor and more importantly, Court even otherwise must not enter into a venture to legislate by itself, whereby, such authority could not be questioned as being above law--Whereas Court in execution proceedings cannot go into fact that who provided funds for purchase of property and production of title documents by objector was a sufficient proof that property belongs to objector--High Court in execution proceedings, that gift is against shariah law or same has not been properly gifted and or executed as judgment debtor was not an absolute owner of property as such determination is not within domain of High Court in execution proceedings, decree holder has not been able to challenge or dispute title documents of objector obtained by way of gift/lease issued in her favor by export processing zone authority with any substantial material or evidence. [Pp. 374 & 375] D, E, G, H & I

Administration of Justice--

----Interest of justice--In process of dispensing and administration of justice, a party to a lis must not be knocked out on any such technical ground. [P. 374] F

M/s. Habibur Rehman and Ghulam Mujtaba, Advocates for Decree Holder.

Mr. Salim Salam Ansari, Advocate for Judgment-Debtor.

Mr. Rana Azeem, Advocate for Objector.

Date of hearing: 1.4.2015.

Order

This is an application filed under Order XXI Rules 13 & 54 read with Section 151, CPC on behalf of the decree holder, whereby, it has been prayed that this Court may be pleased to attach the property/business being run in the name of M/s. Shah Nawan Packages, at Land/Plot Nos. 4 & 5 Sector No. C-V, Export Proceeding Zone, Landhi Industrial Area, Karachi.

1. Briefly the facts as relevant are that the decree holder had filed a Suit for recovery of AED 907,973.50 Bearing No. 80 of 2003 which had proceeded Ex-parte against the judgment debtor and vide judgment dated 25.2.2004 the suit was decreed and thereafter decree dated 3.3.2004 was prepared. The judgment debtor being aggrieved, had preferred an application under Section 12(2), CPC which was also dismissed and the same was further challenged through High Court Appeal No. 158 of 2006 which-was also dismissed vide order dated. 17.5.2006. Thereafter the judgment debtor assailed the same before the Hon’ble. Supreme Court by filing Civil Petition for Leave to Appeal No. 497-K/2006 which was also dismissed by the Hon’ble Supreme Courtvide order dated 22.8.2007. Therefore, insofar as the present Execution proceedings are concerned, the same are in respect of a judgment and decree which has since attained finality and such fact has not been disputed by the learned Counsel for the judgment debtor. It has been stated in the listed application that pursuant to orders of this Court the judgment debtor was examined on 7.5.2009 who has testified on oath that the above property belongs to him and being run under the name and style of M/s. Shah Nawaz Packages, whereas, the aforesaid property has been gifted to his wife namely Mst. Rehana Naseem. It is further stated that the judgment debtor is neither insolvent and has falsified and committed perjury as the property in question belongs to him, hence, he is liable to be arrested and sent to prison as he has transferred/alienated the property in question with intention to defraud the creditors.

2. Learned Counsel for the decree holder contended that the business being run in the name of M/s. Shah Nawaz Packages was owned by the judgment debtor and was transferred by him to his wife through a gift which was executed to defraud the creditor/decree holder. Learned Counsel further contended that the plot in question is a leased property of Export Processing Zone and at the very first instance, it could not have been gifted, as the judgment debtor was not the absolute owner of the property in question, therefore such gift, even otherwise is against the Sharia Law. Per learned Counsel notices were issued to Karachi Export Processing Zone by this Court on 03.05.2011, who have filed relevant documents through which it reflects that the property in question is on 30 years lease. It was further contended by the learned Counsel that the gift in question was a conditional transfer; therefore, it does not fulfill the criteria of hiba as provided in Sharia, whereas, it only allows the donee to carry on the business and nothing else. Learned Counsel also referred to Article 140 of Muhammadan Law and contended that the gift in question was merely to defraud the decree holder from, enjoying the benefit of decree which had been passed in the year 2003. In view of hereinabove submissions, learned Counsel prayed that the property in question may be ordered to be attached.

3. Conversely learned Counsel for judgment debtor contended that the gift in question was executed much prior to the filing of Suit for recovery, whereas it is not merely a gift as Export Processing Zone Authority has, thereafter, executed a lease in favour of the donee. Per learned Counsel the gift in question does not fall in the exceptions provided, in Section 51, CPC as the property was leased prior to filling of the Suit, hence the judgment debtor cannot be sent to prison. Learned Counsel further contended that neither the intention was bad nor mala fide as the gift had been executed much prior to the filing of the Suit. Learned Counsel also submitted that the donee/objector has filed a Suit Bearing No. 325 of 2013 against the decree holder and the donor, whereas, the property in question is already mortgaged with M/s. Bank Al-Habib Limited against which the donee/objector has obtained loan for running its business. Leaned Counsel finally contended that it is settled law that even if the entry is not registered in the records of right a gift is complete. In support of his contention learned Counsel has relied upon the cases reported in Abdul Basit Zahid vs. Modaraba Al-Tijarah and 2 others PLD 2000 KARACHI 322, Precision Engineering Ltd. and others VS. The Grays Leasing Limited PLD 2000 LAHORE 290 and Mir Haji Ahmed Ali Khan Talpur and 9 others vs. Government of Sindh and 2 others PLD 1976 KARACHI 316.

4. Similarly learned Counsel appearing on behalf of the objector/donee in addition to adopting the arguments of the learned Counsel for the judgment debtor, contended that insofar as the plot in question is concerned the same is on lease agreement, whereas, the objector is paying rent on such lease and the same in fact belongs to Export Processing Zone, therefore, even otherwise the land in question cannot be attached.

5. I have heard all the learned Counsel, perused the record and the case law relied upon by the parties. Insofar as the facts as stated hereinabove are concerned the same are not in dispute. The judgment dated 25.2.2004 and decree dated 03.03.2004 have attained finality as application under Section 12(2), CPC was dismissed, where after, High Court Appeal Bearing No. 158 of 2006 has been dismissed vide order dated 17.5.2006, whereas the Hon’ble Supreme Court has also declined leave to appeal, preferred by the judgment debtor vide order dated 22.8.2007. The only question before this Court is, that as to whether the property in question, which according to the decree holder has been fraudulently gifted/alienated by the judgment debtor, can be attached or not. It appears that some directions were issued by this Court on 3.5.2011 to the Export Processing Zone Authority, Karachi, whereas details were called in respect of the property in question and a statement dated 29.9.2011 along with relevant documents of the property in question have been submitted by the Export Processing Zone Authority. From perusal of the same, it reflects that that property in question was gifted by the judgment debtor to his wife/objectorvide Gift Deed dated 25.10.2001. Thereafter a lease deed dated 21.2.2002 was executed between the Export Processing Zone and the objector/donee, whereby the property in question has been leased in favor of the objector/donee. The record further reflects that a letter dated 14.7.2005 was issued by the Export Processing Zone Authority, Karachi, whereby a charge has been created on the assets of Messrs Shah Nawaz Packages in favour of M/s. Bank Al-Habib Limited, Offshore Banking Unit, Karachi Export Processing Zone, Karachi, whereas the Suit in the instant matter was filed by the decree holder on 16.1.2003. Therefore, insofar as the facts and the relevant dates are concerned the same are not in dispute and it is an admitted position that upon investigation carried out by this Court, it has come on record that the property in question is, at present, not in the name of the judgment debtor, whereas, the same was gifted/transferred by the judgment debtor to his wife on. 25.10.2001, i.e. much prior to filing of instant Suit by the decree holder. It has been contended through listed application as well as by the learned Counsel for the decree holder, that since the judgment debtor is avoiding execution of decree, on one pretext or the other, he is liable to be arrested by this Court for enforcement of the decree in question. The proceedings of arrest/detention of a judgment debtor are governed by the provisions of Section 51, CPC and it would be advantageous to refer to it which confers powers on the Court to enforce execution, including arrest and or detention, which reads as under:--

“51. Powers to Court to enforce execution.--Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree--

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) By arrest and detention in prison;

(d) By appointing receiver; or

(e) In such other manner as the nature of the relief granted may require;

[Provided that, [xxxxx] execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied--

(a) that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decree,--

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has after institution of the suit in which the decree was passed, dishonestly transferred concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or

(b) that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account. “

1. Perusal of the aforesaid provision of Section 51, CPC, specially, the proviso (a) (ii), it reflects that the Court in Execution proceedings after giving an opportunity of showing cause, may detain a judgment debtor in prison, if the Court comes to a conclusion that the judgment debtor, has after institution of the Suit in which the decree was passed, dishonestly, transferred, concealed or removed any part of the property or committed any other act of bad faith in relation to his property. It appears that insofar as the prayer for detention of the judgment debtor in prison as raised through listed application on behalf of the decree holder is concerned, the same, appears to be misconceived, as admittedly the property in question has been gifted/leased out in favour of the donee/objector much prior to the institution of the Suit, therefore, insofar as the, detention of the judgment debtor in prison is concerned, no such powers can be exercised by this Court under Section 51, CPC with specific reference to proviso (a) (ii), whereas, the decree holder has not been able to show any material, whereby, it could reflect that the property in question was dishonestly transferred gifted and or alienated by the judgment debtor. The gift deed and the lease documents or their veracity has not been challenged or dislodged independently nor the credibility and or the authenticity of these documents have been disputed which otherwise are legally executed and admissible documents, except the objection that the gift, at the outset is void as the donor was not the absolute owner of the property in question. In my candid view this objection has no merits to sustain as the decree holder has failed to substantiate the same with any corroborating material and has failed to bring on record any such document or evidence whereby such objection can be sustained. Therefore, in my view, no case has been made out on behalf of the decree holder, whereby, any order could be passed for detention of the judgment debtor in prison in terms of Section 51, CPC.

2. Insofar as the other objection which has been raised by the learned Counsel for the decree holder, that the judgment debtor was not the absolute owner of the property in question, therefore, the gift was against the Sharia Law is concerned, the same appears to be based on the premise that the property in question was leased in favour of the donee/objector with certain conditions attached to it, hence could not have been gifted or the gift in question was not complete and absolute. It is of utmost importance to mention that the property in question is situated in an area which is owned by the Export Processing Zone Authority, Karachi, which has been developed exclusively for Industries engaged in the business of hundred percent Exports. In the said area, no ordinary person can establish an Industry, except the one who has been granted lease and land by the Export Processing Zone Authority and who otherwise fulfills the legal requirements of establishing such Industry in the specified area. Therefore, if there are certain conditions attached to the lease in question in this regard, to safeguard the interest of the lessor (Export Processing Zone Authority), this would not amount to putting a restrictive covenant, whereby, such property cannot be transferred by way of gift/hiba. Further, in the instant matter not only the land in question has been gifted by the judgment debtor, but such gift is also in respect of and not limited to, building. Construction raised thereon, machinery, fixtures, etc., including the name and style of business, having its own Goodwill; therefore, even otherwise the contention of the learned Counsel with regard to putting in any conditions and or restrictions in the lease deed is also misconceived as the same is not attracted in the case of building, construction, fixtures etc. Therefore, the issue of absolute ownership or not, otherwise is not relevant and rather appears to be misconceived and is hereby repelled.

3. It would not be out of place to mention that the learned Counsel for the decree holder tried his level best to convince this Court to see that whether any extra ordinary relief could be granted to the decree holder in view of the fact that the decree in the instant matter has not been satisfied since 2003, whereas it has served no useful purpose and the Court must enforce its execution by even engaging some extra ordinary measures and must not find itself constricted in the vinculum of the procedural law, which if implemented, would ultimately benefit the judgment debtor and the honor and dignity of the Court would not be upheld and would give an impression that the Court in such matters is helpless. Learned Counsel had also submitted that technicalities of law should not, in any manner, be allowed to impede the interest of justice. Though, this may appear to be an attractive argument, but with utmost respect to the learned Counsel, there can be hardly any two opinions that in the process of dispensing and administration of justice, a party to a lis must not be knocked out on any such technical ground. However, this is not the case here, and neither such argument is tenable nor the Court ever considers itself nor ought to, in a position, whereby an impression of being helplessness can be inferred. The Court must and has to implement the law; come what may. There is no occasion for any embarrassment for the Court, if the law, as applicable, is followed. Therefore the contention and submissions by the learned Counsel for the decree holder in this regard being misconceived is hereby repelled with the observation that the Court must and always does acts in accordance with law, however, with an inherent margin of error which is always open to correction and or modification by the appellate Courts. Adding to it, I may observe further, that this is neither a Constitutional Court having extra ordinary powers vested in it to exercise discretion in a manner so as to dispense and meet the ends of justice out of way, nor and more importantly, the Court even otherwise must not enter into a venture to legislate by itself, whereby, such authority could not be questioned as being above the law. The Court has to work within the ambit of law and to interpret it in the given facts and circumstances of a case before it, and nothing else. Even otherwise, this is an executing Court, which has its limitation, and perhaps cannot pass a declaration, as the one being sought on behalf of the decree holder, whereby the gift in question can be declared to be void and illegal.

4. This Court in the case of Sohail Farooq Shaikh vs. The State reported in 2009 MLD 375, has dealt with a more or less similar situation. In that case in Execution proceedings, whereby a property was being sold, an objection was raised by the objector that the property bearing Plot No. A-62, Block-A, measuring’ 135 square yards situated in Al-Falah Co-operative Housing Society Limited, Drigh Colony, Karachi, does not belong to the judgment debtor as it was leased in her favor in the year 1991, even before filing of the Suit and the same was acquired by her from her own resources. The Court after examining the entire material on record, came to the conclusion that the contention of the objector had force for the reason that the property was leased in her favour even before filing of the Suit and it cannot be said that the judgment debtor with intention to frustrate the decree had transferred the property in favor of the objector. The Court further held that whereas the Court in Execution Proceedings cannot go into the fact that who provided the funds for the purchase of the property and the production of title documents by the objector was a sufficient proof that the property belongs to the objector. Therefore, by respectfully following the above view, I am of the opinion that in the given facts and circumstances of the instant case it cannot be held by this Court in present execution proceedings, that the gift in question is against the Shariah law or the same has not been properly gifted and or executed as the judgment debtor was not an absolute owner of the property in question as such determination is not within the domain of this Court in Execution proceedings, whereas as stated hereinabove, the decree holder has not been able to challenge or dispute the title documents of the objector obtained by way of gift/lease issued in her favor by the Export Processing Zone Authority with any substantial material or evidence.

5. In view of hereinabove facts and circumstances of the instant case, I am of the view, that the decree holder has failed to make out a case, whereby the property in question can be attached, as the same does not belong to the judgment debtor as it stood gifted/transferred/leased/alienated in favor of the objector/donee, much prior to the filing of Suit in the instant matter. Accordingly, listed application, having no force is hereby dismissed.

(R.A.) Application dismissed

PLJ 2015 Karachi 376

Present: Nazar Akbar, J.

MALIK MUHAMMAD RIAZ and another--Plaintiffs

versus

Mrs. FARHAT IMRANA & 2 others--Defendants

Suit No. 1709 of 2014 and CMA No. 11886 of 2014, decided on 9.1.2015.

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

----S. 56(9) & (b)--Civil Procedure Code, (V of 1908), O. XXIX, Rr. 1 & 2--Ejectment petition--Non payment of rent--Application for restraining orders from claiming any rent and to stay proceeding of rent case, dismissal of--Affidavit in rejoinder to counter affidavit--Validity--Plaintiff had no prima facie case to maintain injunction against proceedings of Rent Controller in accordance with law governing relationship of parties and request for stay of rent proceeding is hit by Section 56(a)(b) of Specific Relief Act, 1877--Application was dismissed. [P. 378] A

Mr. Muhammad Ali Waris Lari, Advocate for Plaintiffs.

Mr. Sabir Shah, Advocate holding brief for Mr. Salahuddin Khan Ganda Pur, Advocate for Defendant No. 1.

Mr. Muhammad Aslam Choudhry, Advocate (Absent) for Defendant No. 2.

Date of hearing: 6.1.2015.

Order

This order will govern disposal of (CMA No. 11886/2014) an application under Order XXXIX Rules 1 & 2, CPC whereby the Plaintiff has sought restraining orders against the Defendant No. 1 from claiming any rent of the property in dispute from the Plaintiff and to stay the proceeding of Rent Case No. 10/2014 pending before Additional Controller of Rents Karachi Cantonment, Karachi. Defendant No. 1 has already filed her counter affidavit and the Plaintiff has filed affidavit-in-rejoinder to the counter affidavit.

Precise facts for the purposes of disposal of this application are that the Plaintiff has taken over left portion of Plot No. D-128, Depot Lines, Sagheer Hussain Shaheed Road, Karachi (hereinafter called suit property) from Defendant No. 1 underwritten tenancy agreement dated 16.11.2012. He is still in possession of the suit property and has filed the instant suit for declaration, injunction and compensation with cost and damages to the tune of Rs. 10,00,00,000/- against the landlady, the Defendant No. 1 and Karachi Cantonment Board. This suit was filed by the Plaintiff on 8.9.2014 and by that time he had already stopped payment of rent to Defendant No. 1 w.e.f June 2013. Defendant No. 1 filed Rent Case No. 10/2014 on 11.4.2014 for ejectment of Plaintiffs on the ground of non-payment of rent. The Plaintiff appeared in rent case through his counsel and under the cover of this suit claimed that the rent proceedings may be stayed and his such application is pending. The Plaintiff in the present suit has alleged some fraud played by Defendant No. 1 in getting the agreement of tenancy executed by him and he has suffered losses on account of alleged fraud. Therefore, he has filed suit for damages to the tune of Rs. 10,00,00,000/-and despite the fact that from his own showing the tenancy agreement was fraudulently got executed by Defendant No. 1 he is still in occupation of the suit property under the same agreement. There is no dispute about the Ownership of the property between Defendant No. 1 and the Plaintiff and he admits that he is tenant. It is strange that tenant claims to continue in possession of the tenancy and seek restraining orders against landlady from claiming rent. The Plaintiff is also aggrieved by the rent proceedings initiated against him. As long as the Plaintiff is in occupation of the premises and he claims that he is in lawful occupation of the suit property, he is bound by the terms and conditions of the tenancy agreement and the law governing the relationship of the Plaintiff and Defendant No. 1 in terms of the said agreement. In case he denies rent of the suit property to the landlady he becomes an illegal occupant of the premises and therefore, in my humble view through a civil suit an illegal occupant of immoveable cannot restrain the landlady from attempting to recover possession of the suit property by application of relevant law as landlord. Learned counsel attempted to argue that civil Court can also issue restraining orders against the Rent Controller. However, he has failed to place on record any case law whereby proceedings of Rent Controller have been regulated by the injunction orders of the Civil Judge. He has placed reliance on the following case law:--

(i) PLJ 1982 SC 4 (Ismail Brothers vs. Keval Ram)

(ii) 1981 SCMR 193 (Ghulam Rasul and others vs. Hajan Bakhtawar and another)

(iii) 1984 CLC 630 (Mst. Popalzai vs. The District and Sessions Judge, Karachi).

None of these cases are relevant for the purpose of granting injunction as sought by the Plaintiff through application under discussion. The facts of all the three cases are quite distinguishable. In PLJ 1982 SC 4 the facts of the case were that the entire proceeding of the rent case have already been concluded at the level of the Supreme Court when the suit was filed and there was neither any prayer to restrain the Rent Controller nor such orders were passed. In 1981 SCMR 193, the dispute was between the co-owner of a building which was in occupation of several tenants and co-owners were both beneficiary of rents from different set of tenants. The rent proceedings initiated by co-owner against those who were paying rent to other co-owner and the rent proceeding were not stopped. In 1984 CLC 630 the proceedings were arising out of rent orders and the proceedings were not arising out of civil suit, therefore, even this case law was out of context.

In view of the above, the Plaintiff has no prima face case to maintain injunction against the proceedings of the Rent Controller in accordance with law governing the relationship of the Plaintiff and the Defendant No. 1 and request for the stay of rent proceeding is hit by Section 56(a)(b) of the Specific Relief Act, 1877. Consequently, the application is dismissed, with no order as to cost.

(R.A.) Application dismissed

PLJ 2015 Karachi 379 (DB)

Present: Faisal Arab, C.J. and Zafar Ahmad Rajput, J.

Mst. SHER BANO through Attorney--Appellant

versus

MUHAMMAD ISMAIL and another--Respondents

H.C.A. No. 99 of 2014 and Misc. No. 990 of 2014, decided on 11.3.2015.

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

----S. 15--Non framing of issue--Suit for specific performance of contract--Payment with regard sale consideration--Validity--When an issue is not framed then there is no need to adduce evidence on such a plea, moreso, when it was not relevant for decision of that particular suit--High Court rightly dismissed application of appellant leaving open to appellant to establish her claim with regard to payment in suit for specific performance of contract--Appeal was dismissed. [P. 380] A

Mr. Saathi M. Ishaq, Advocate for Appellant.

Date of hearing: 11.3.2015.

Order

The appellant entered into an agreement to purchase property from Respondents No. 1 and 2. In this regard the appellant filed a Suit for the specific performance of contract. The respondents in turn filed Suit No. 358/2004 for declaration, damages and Injunction. The issues in Suit No. 358/2004 were framed and thereafter at the stage of recording evidence in the matter a question was put by the appellant’s counsel to the respondent that the appellant has paid a sum of Rs. 400,000/- to the respondents under the sale agreement. That question was not allowed by the Commissioner, who was recording evidence, on the ground that it relates to a dispute which is subject matter of another suit filed by the appellant for specific performance of contract. The denial of such question led to filing of an application before the learned Single Judge, who vide order dated 17.03.2014 dismissed the application on the ground that the payment with regard to sale consideration is subject matter of other suit and not of Suit No. 358/2004, hence the Commissioner rightly denied such question. Aggrieved by such order, the present High Court Appeal was filed.

1. From the issues that have been framed in the suit filed by the respondents it is evident that payment of Rs. 400,000/- was not an issue in Suit No. 358/2004. In the written statement, the appellant has

clearly stated that she paid Rs. 400,000/- to the respondents but no separate issue was framed with regard to payment. In any case such an issue was subject matter of the suit for specific performance and not the suit filed by the respondents which was for damages on account of allegation of defamation. The counsel for the appellant contended that if the question was not allowed to put to the respondents then the plea will go unchallenged. In this regard he relied upon the cases reported in 2001 SCMR 1700, 1991 SCMR 2300, PLD 2004 Karachi 543 and 1998 CLC 1148.

1. The appellant’s plea in the written statement is that she paid Rs. 400,000/- as part payment which plea is not made an issue by the respondents. The reason for non-framing of issue with regard to payment of Rs. 400,000/- apparently is that such is not subject matter of Suit No. 358/2004 but of the suit that was filed by the appellant for the specific performance of the contract. Secondly when an issue is not framed then there is no need to adduce evidence on such a plea, moreso, when it was not relevant for the decision of that particular suit. The learned Single Judge rightly dismissed the application of the appellant leaving open to the appellant to establish her claim with regard to the payment of Rs. 400,000/- in the suit for specific performance of contract. Hence no case is made out for interference. The appeal is, therefore, dismissed in limine alongwith he listed application.

(R.A.) Appeal dismissed

PLJ 2015 Karachi 380

Present: Shahnawaz Tariq, J.

GUHRAM KHAN--Petitioner

versus

STATION HOUSE OFFICER, P.S. TANGWANI and others--Respondents

C.P. No. S-8317 of 2015, decided on 23.6.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Production of detainee from illegal confinement--Marriage was contracted without consent and agreement of parents of alleged detainee--Liberty and modesty of detainee was in danger--Sensitivity of issue and to ascertain identity of girl who was produced before Court--Validity--Detainee being sui juris wants to join her father, therefore, she was allowed to reside with her father at her own sweet will--However, SSP was directed to ensure identification of father of detainee and then handed over her custody under execution of personal bond in order to ensure safety of life of detainee. [P. 385] A

Mr. Faiz Muhammad Larik, Advocate for Petitioners.

Mr. Ali Raza Pathan, Advocate for Respondents Nos. 2 & 4.

Mr. Rafique Ahmed Abro, Advocate for Respondent No. 3.

Date of hearing: 23.6.2015.

Order

Through the captioned Constitutional petition, petitioner Guhram Khan has invoked Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with prayer to issue Rule Nisi for production of the detainee, namely Mst. Tehmina (wife of the petitioner), from the illegal confinement of private Respondents No. 1 to 7, through Respondent No. 8, before this Court and after recording her statement she may be set at liberty and allowed to go wherever she likes.

1. The relevant facts spelt out from the instant petition are that the alleged detainee namely Mst. Tehmina daughter of Abdul Rehman Sarki, Respondent No. 3, sworn her affidavit of freewill and contracted marriage with the petitioner on 05.3.2015, out of their love affair and the spouses were residing together happily; since they had contracted marriage without consent and agreement of the parents of the alleged detainee, therefore, her relatives became annoyed with the petitioner and were trying to separate the couple and causing them serious harassment. It is further averred that 22.3.2015, in the morning at about 11.30 a.m., when petitioner and his wife Mst. Tehmina were available in their house, Respondent No. 1 SHO SIP Ghulam Sarwar along with his subordinate staff accompanied with private respondents raided the house of petitioner and they caused kicks and fists blows to all the inmates of the house and ultimately at the instance of private respondents, Respondent No. 1 and other police personnel forcibly taken away petitioner’s wife Mst. Tehmina and hided her at some unknown place. It is further stated that Respondents No. 1 to 7 not only caused damages to the house hold articles of the petitioner, but looted valuables from the house, i.e. gold ornaments, clothes, television and dish antenna, etc. It is also stated that Respondents No. 1 to 7 in collusion with each other, have wrongfully confined wife of the petitioner against her wishes, as such the life, liberty and modesty of the detainee is in danger. The petitioner time and again approached the Respondent No. 8 SSP Kashmore @ Kandhkot to intervene into the matter and get his wife released from wrongful confinement of the respondents, but he is reluctant to take any action in the matter. Ultimately, petitioner filed instant petition for recovery of his wife, allegedly detained by her father and others.

2. This Court vide order dated 31.3.2015, issued notices to the respondents, as well as A.A.G., while Respondent No. 8 SSP Kashmore was directed to ensure safety of the alleged detainee as well the petitioner. On 07.4.2015, notices were again ordered to be issued to the private Respondents No. 2 to 7 and Respondent No. 3 was directed to produce alleged detainee Mst. Tehmina before this Court on next date, Despite repeated directions, the alleged detainee was not produced before this Court. On 04.5.2015, the Respondent No. 8 SSP Kashmore was directed to recover and produce the alleged detainee before this Court with note of caution that in case order of the Court is not complied with by Respondent No. 8, appropriate order shall be passed on next date. It is significant to mention that petitioner in his petition has raised specific allegations that Respondent No. 1 SHO SIP Ghulam Sarwar Sarki, PS Tangwani had raided his house on 22.3.2015 and forcibly taken away his wife to some unknown place, therefore, instead of Respondent No. 1, the Respondent No. 8 SSP Kashmore was directed to produce Respondent No. 3 and the alleged detainee Mst. Tehmina before this Court but despite clear directions, Respondent No. 8 SSP Kashmore had not bothered to appear before this Court nor complied with the subject order.

3. On 07.5.2015, in compliance of directives issued by this Court to Respondent No. 8 SSP Kashmore, Respondent No. 1 SHO, SIP Ghulam Sarwar Sarki of PS Tangwani produced Respondent No. 3 Abdul Rehman Sarki and one girl, who according to him were Respondent No. 3 and Mst. Tehmina. On query, said girl asserted that her name is Mst.Tehmina and she is daughter of Respondent No. 3.

4. While controverting the said contention, petitioner vehemently contended that the girl produced by the Respondents No. 1 and 3 is not his wife Mst.Tehmina, but she is her cousin Mst. Reshma daughter of Muhammad Haleez Sarki, who is real paternal uncle of the alleged detainee. Petitioner further stated that his wife has not been produced before the Court, and she might have been killed by the private respondents and he in support of his claim produced original affidavit of freewill executed by Mst.Tehmina and their Nikahnama with her photograph affixed thereon.

5. Considering the sensitivity of the issue and to ascertain identity of the girl who was produced before the Court and if she was an imposture then to produce real Mst. Tehmina before this Court, I.T. branch of this Court under directions, had taken photograph and thump impression of the girl who was produced before this Court, which are available on record. I.T. branch of this Court was further directed to verify the photograph and finger prints of said girl produced before the Court from NADRA. Considering the above scenario, Respondent No. 8 SSP Kashmore was again directed to conduct a comprehensive inquiry in the matter specifically with regard to the identity of Mst. Tehmina daughter of Abdul Rehman Sarki, the Respondent No. 3 and wife of the petitioner and to produce her before this Court without fail. It was further directed that if it is found in said inquiry that the girl who has been produced before the Court, is not real Mst. Tehmina, proper action shall be initiated by Respondent No. 8 SSP Kashmore in accordance with law against said girl, Respondent No. 3 Abdul Rehman Sarki and Respondent No. 1 SHO, SIP Ghulam Sarwar Sarki of PS Tangwani.

6. On 13.5.2015, neither Respondent No. 8 SSP Kashmore appeared nor furnished any report, and even the alleged detainee was not produced in compliance of order of this Court. However, as per statement filed by DSP Ansar Ali Mithani, preliminary inquiry revealed that family members of the girl who was produced on last date before this Court, have confirmed that her name is Tehmina and she is holding CNIC No. 43502-0651888-8 issued by NADRA on 22.4.2015 and a copy whereof was annexed alongwith statement. Whereupon petitioner vehemently contended that said CNIC is bogus and the same has been managed by respondents after filing of the instant petition in order to hide the real Mst. Tehmina, wife of the petitioner.

7. Conversely, the Respondent No. 3 denied said version and stated that his brother Muhammad Hafeez has no daughter with the name of Mst. Reshma. Consequently, Respondent No. 3 was directed to produce his brother Muhammad Hafeez and his daughter Mst. Reshma before this Court on next date as well as DSP Tangwani Muhammad Sadique Odho present in Court was directed to ensure attendance of said Muhammad Hafeez and his daughter Mst. Reshma before this Court. Said DSP was further directed to produce the entire relevant record from NADRA in relation to the said Muhammad Hafeez, particularly the B-FORM showing names etc. of all his family members. On 21.5.2015, the Respondent No. 8 SSP Kashmore, namely Umar Tufail appeared in Court and after going through the case file undertook that he will produce the real girl through the Respondent No. 1 SIP Ghulam Sarwar Sarki, SHO PS Tangwani within a week and in case of failure to produce the said lady by said SHO, a criminal case under Section 365-B and 302 P.P.C. with other relevant provisions of P.P.C. including an attempt to misguide the Court by producing some other girl instead of the wife of petitioner, will be registered by SSP himself as complainant against the SHO and others.

8. On 02.6.2015, DSP Anwar Ali Mithani, Incharge SSP Kashmore filed a vague statement in compliance of orders of this Court which was not serving any useful purpose to ensure the compliance of order passed by this Court on 21.5.2015, whereby SSP Kashmore was granted one week time for compliance. Perusal of said statement reflected that no sincere and serious efforts were made for compliance of subject order, therefore, SSP Kashmore was again directed to ensure the compliance of the subject order and produce Mst. Tehmina before this Court without fail. On 02.06.2015, learned A.A.G. filed a statement on behalf of the SSP Kashmore showing that an F.I.R vide Crime No. 32 of 2015, under Sections 364, 193, 452, 506 (2), 395, 427 P.P.C has been registered on complaint of the petitioner against Respondent No. 1 SHO PS Tangwani, namely SIP Ghulam Sarwar Sarki and others, including Mst. Reshma, who appeared before this Court posing herself to be Mst. Tehmina, and investigation of the case is under progress.

9. On 09.6.2015, learned A.A.G. filed a statement of Respondent No. 8 SSP Kashmore, and contended that in compliance of the subject order, the detainee Mst. Tehmina has been recovered and he produced her before this Court. The petitioner identified her to be same Mst. Tehmina, his wedded wife. Learned counsel for petitioner vehemently contended that since Mst. Tehmina remained under forcible custody of her parents and other relatives and after hectic efforts, she has been produced before the Court, therefore, in the prime interest of justice, she may be sent to Darul Aman to make up her mind and then her statement, may be recorded. Learned AAG considering the circumstances of the case, extended no objection and supported the contention raised by learned counsel for petitioner to send Mst. Tehmina to Darul Aman. Considering the peculiar circumstances of the case, Mst. Tehmina was ordered to be sent to Darul Aman, Larkana till next date, in order to make up her mind and decide her future independently and her statement be recorded without any duress and fear. Incharge Darul Aman, Larkana, was directed not to allow meeting of Mst. Tehmina with anybody without prior permission of this Court.

10. Today, Gulnaz Ali Abbasi, Assistant Director, Darul Aman produced the custody of Mst. Tehmina before this Court and she also produced register of visitors for perusal of the Court as well as parties. Perusal of the register reflects that during the period of the lodgment of Mst. Tahmina in Darul Aman, none of the parties had visited her. In her statement, Mst. Tehmina candidly submits that she being sui juris had contracted her marriage with petitioner but now she wants to join her father Abdul Rehman and her custody may be handed over to him. Learned counsel for petitioner raised objection that the person present in Court with the name of Abdul Rehman is not same person. Learned AAG submits that SSP Kashmore @ Kandhkot may be directed to hand over the custody Mst. Tehmina to her real father and also submit such report to this Court through Additional Registrar.

11. Considering the peculiar facts and circumstances referred supra, the alleged detainee Mst. Tehmina being sui juris wants to join her father, therefore, she is allowed to reside with her father at her own sweet will. However, SSP Kashmore @ Kandhkot is directed to ensure the identification of father of the detainee namely Abdul Rehman and then hand over her custody to him under execution of Personal Bond in the sum of Rs. 5,00,000/- in order to ensure the safety of the life of Mst. Tehmina. Respondent No. 8 SSP Kashmore is further directed to furnish fortnightly reports to this Court through Additional Registrar regarding safety of the life of Mst. Tehmina. The In-charge Darul Aman is directed to hand over the custody of Mst. Tehmina to Respondent No. 8 SSP Kashmore after completion of codal formalities for compliance of subject order in letter and spirit. Inspector Muhammad Sadiq, Investigating Officer of Crime No. 32 of 2015 lodged at Police Station Tangwani files statement which is taken on record and copy whereof supplied to learned counsel for the petitioner. He further submits that accused Abdul Rehman who had appeared before this Court, has been arrested and remanded to judicial custody, while nominated accused SIP Ghulam Sarwar, Abdul Qadir, Hussain Ahmed, Abdul Karim, Shafique Ahmed, Shah Bux alias Shahooro and Mst. Reshma (alleged Mst. Tehmina) have already obtained pre-arrest bail from the concerned Court.

12. The I.T. branch of this Court is directed to provide photograph and thump impression of the girl who was produced before this Court, which are available on record and the verification of the photograph and finger prints of said girl issued by NADRA to the investigation officer under proper receipts. Learned DDPP Shikarpur is directed to monitor the investigation proceedings of case lodged vide FIR No. 32 of 2015, and in case of any hardship or deliberate deviation in order to frustrate the investigation by investigation officer, he may approach the Additional Registrar of this Court for appropriate orders. Investigating Officer is directed to conclude the investigation and submit Challan before the concerned Court. Respondent No. 8 SSP Kashmore and SHO PS Tangwani are directed to provide legal

protection to the petitioner especially against the private respondents. Inspector General of Sindh Police is directed not to assign any posting to SIP Ghulam Sarwar Sarki till final disposal of case lodged vide FIR No. 32 of 2015. Copy of this order be transmitted to Inspector General of Sindh Police, learned DDPP Shikarpur and SSP Kashmor @ Kandhkot through learned AAG Sindh for information and follow up for its compliance in letter and spirit.

Consequently, instant Constitution petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2015 Karachi 386 (DB)

Present: Muhammad Ali Mazhar & Shahnawaz Tariq, JJ.

DAWOOD SIGHAR & 4 others--Petitioners

versus

PROVINCE OF SINDH through Chief Secretary Sindh, Karachi and 2 others--Respondents

C.P. No. D-1637 of 2013, decided on 28.4.2015.

Civil Service Regulation--

----Art. 486--West Pakistan High Court (Civil Services) Delegation of Powers Rules, 1960, R. 2--Sindh Judicial Staff Service Rules, 1992, R. 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Administrative order--Judicial allowance--Retired employees of High Court--Accumulation of judicial allowance in pension--Not reckonable for pension--Validity--Payment of judicial allowance cannot be treated as an adhoc relief or any benefit of contingent or reliant nature but it was one of components of emoluments which was being paid during active service without any interruption or interval but after retirement benefit of allowance was recalled for purposes of pension which was without any sagacity or rational--Despite encompassing field of Sindh High Court Establishment (Appointment and Conditions of Service) Rules 2006; High Court cannot ignore Rule 2 of High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 which is also encircling field under which Chief Justice has powers in respect of judicial officers and all powers of Government in administrative department--Judicial allowance was allowed to employees across board, neither it was extended to a person specific nor it was allowed on contingent or transient basis nor sanctioned for a post held by an employee substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre--No improbability to perceive that judicial allowance is a part of emoluments/pay/salary and reckonable being one of components for pension calculation--Entitled to judicial allowance which was treated as emolument for purpose of pensionary benefit.

[Pp. 396, 397 & 398] A, B, C & D

M/s. Rasheed A. Razvi, Farhatullah, Haider Imam Rizvi and Abbas Rizvi, Advocates for Petitioners.

Mr. Sarwar Khan, Addl. A.G. Sindh for Respondent.

Mr. Muhammad Arshad, S.O. Finance Dep. Govt. of Sindh, Karachi.

Date of hearing: 27.10.2014.

Judgment

Muhammad Ali Mazhar, J.--This petition has been brought to seek following relief(s):--

“(a) Declaration that the petitioners and all other retired employees of Sindh High Court placed in similar class are entitled for calculation of pensionary benefits by inclusion of Judicial Allowance.

(b) Direct the respondents to implement and act upon the orders of the Hon’ble Chief Justice of this Court in letter and spirit.

(c) Direct the respondents to allow judicial allowance to be counted for calculation of pension towards the petitioners as well as other officers/members of the establishment who have retired and are entitled.

(d) Any other relief as this Court may be deemed fit and proper under the circumstances of the case”.

1. The brief facts of the case are that the petitioners are retired employees of this Court. The Supreme Court of Pakistan keeping in view the various factors allowed judicial allowance to its employees in the year 2000. Subsequently, the High Courts of Provinces also granted such facility to their employees. The former Chief Justice of this Court late Mr. Justice Sabihuddin Ahmed had passed an administrative order that the judicial allowance should be counted for calculation of pension in respect of judicial officers working under this Court. The officers/staff members of this Court made representation to another former Chief Justice of this Court who was pleased to grant this facility to officers of this Court after going through the decision of the honourable Chief Justice of Pakistan with effect from 3.1.2000. The Registrar of this Court had written a letter on 17.12.2012 to the Respondent No. 3 (Accountant General Sindh) to comply with the orders of the Chief Justice and also quoted the order which is reproduced as under:

“Raising the issue of judicial allowance to be counted for calculating pension by the Finance Department at this stage is irrelevant and after thought as AG Sindh office is already paying pension incorporating judicial allowance for calculation of pension to the judicial officers as well as Establishment of the High Court of Sindh”

1. Despite communicating the orders, the Respondent No. 3 failed and neglected to entertain the applications of the petitioners regarding accumulation of judicial allowance in pension. The Respondent No. 3 in his comments took the position that the Finance Department, Government of Sindh has refused to treat the judicial allowance as reckonable component for pension under Article 486 of CSR while the Respondent No. 2 submitted the comments in line that in view of the Article 486 of Civil Service Regulation (C.S.R) the Judicial Allowance is not reckonable for pension calculation. It was further submitted in the comment that if judicial allowance is allowed to be treated as a reckonable emolument, its financial implication would be huge and those who are not employees of the High Court of Sindh and drawing judicial allowance will also demand judicial allowance as reckonable emolument for calculation of their pension which will result substantial burden on already frail financial resources of the province.

2. The Registrar of this Court submitted a brief note along with some documents that the power to sanction the pension and treat the judicial allowance as part of pension to the members of High Court Establishment lies with hon’ble Chief Justice. Such power is exercised under High Court of West Pakistan (Civil Service) Delegation of Powers Rules, 1960 as mentioned at Serial No. 35 and 36, Appendix. A. While deciding the request of Justice (retired) Mr. Muhammad Sadiq Leghari for including judicial allowance as part of pension, the then hon’ble Chief Justice Mr.Justice Sabihuddin Ahmed (late) was pleased to order as under:

“Judicial allowance is payable to sheerly by virtue of a person’s being a judicial officer and even taken such officer is not performing strictly judicial functions, there appears no reasons for excluding it from “emoluments” for the purpose of pension “A” is approved--Sd-”.

1. It was further stated by the Registrar that the Administration Committee on 17.2.2007 resolved that the judicial allowance to be made part of pension which shall take effect from the date when the same was paid to the judicial officers and as such it was retrospectively applied w.e.f. 03.01.2000. Thereafter, some staff members had submitted joint application for extending such benefit to them as they too were getting judicial allowance in their pay. The note was placed before the then Hon’ble Chief Justice and his lordship vide order dated 3.2.2011 was pleased to extend the benefit of calculating judicial allowance in the pension of members of High Court Establishment with immediate effect and the notification was issued on 4.2.2011. Some retired employees of High Court who stood retired before issuance of such notification and were getting judicial allowance in their pay, applied to this Court requesting that such benefit may also be extended to them. The matter was placed before the then hon’ble Chief Justice and the benefit was extended w.e.f 3.1.2000 (the date when, the same was extended to the judicial officers). However, as the judicial allowance was being paid to the members of High Court Establishment w.e.f. 1.7.2003 and not from 3.1.2000, as such in order to rectify this date, the note was placed again before the then hon’ble Chief Justice and his lordship was pleased to approve the same therefore, notification and corrigendum were issued accordingly. The Finance Department drew the attention towards Article 486 of Civil Service Regulation and took the view that there is no mention of word “judicial allowance” in the said provision therefore vide letter dated 17th may 2013, the Registrar of this Court again communicated the administrative order dated 6.7.2012, passed by the then Honorable Chief Justice to the Secretary Finance, Government of Sindh which is reads as under:--

“Examined. Since judicial allowance per policy decision dated 13.4.2006 of the then hon’ble Chief Justice (late Sabihuddin Ahmed) is treated as emolument for the purpose of pension, in respect of judicial officers. Similar consideration was not extended to other staff/members of High Court Establishment. Erstwhile A.C. in its meeting dated 17.2.2007 made applicability of judicial allowance w.e.f. 03.01.2000 (i.e. retrospectively) benefit of judicial allowance was however extended to the staff and officers of High Court of Sindh by the competent authority the then hon’ble Chief Justice (Justice Sarmad Jalal Osmani) on 4.2.2011 with immediate effect.

Since in principle it is decided that staff/officers of this Court are allowed/entitled to judicial allowance which is treated as emolument for the purpose of pensionary benefit per terms of clause 486 Section IV Allowances. Reckoned for pension of “Compendium of pension Rules & Orders. Therefore, in order to be fair, just and equitable judicial allowance would be applicable and extendable to staff/members of H.C. Establishment from the date applicable to judicial officers i.e. w.e.f. 3.1.2000”.

1. The learned counsel for the petitioner argued that the Registrar submitted a reference on 14.1.2010 to the competent authority regarding the application of employees and the hon’ble Chief Justice directed to put up the matter with relevant rules. In compliance of the directions the Registrar submitted Clause 486 of the Compendium of Pension Rules and Order and stated that judicial allowance is a Special Allowance which falls under the category (c) and (h) thereof and as such the said allowance is an integral part of Salary of the Employees of the High Court of Sindh. It was further contended that the Chief Justice is the Competent Authority to treat the Judicial Allowance as part of Pensionable Pay. The High Court (Civil Services) Delegation of Powers Rules, 1960 does not permit Accountant General Sindh or Finance Department to undo or revise the order passed by the Competent Authority. It was further averred that in the pension of some of the retired employees of Sindh High Court, judicial allowance has already been included, but other retired employees have been denied therefore, the Accountant General Sindh vide letter dated 30.08.2012 requested the Finance Department to allow judicial allowance to be counted in calculation of pension of the retired staff/officers of Sindh High Court as directed by the Chief Justice but Finance Department vide its letter dated 1st October 2012 declined to act on the said direction of the Chief Justice and misinterpreted Article 486 of the Sindh Civil Service Regulations. He referred to Article 208 of the Constitution of Pakistan which empowers High Court to make rules for the appointment and frame the terms and conditions of employment. Article 260 of the Constitution defines remuneration as remuneration includes salary and pension therefore the High Court has powers to decide and issue directions in this regard. He also referred to Rule 2 of the High Court of West Pakistan (Civil Service) Designation of Powers Rules, 1960 in which the Chief Justice has the powers of Government in the Administration Department under the Civil Service Rules in force in the different integrating units of West Pakistan, in respect of the officers and servants of the High Court, its Benches and Circuits. Serial 35 of the Appendix `A’ of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960, gives full power to the Chief Justice to sanction pension. He also focused on the independence of the Judiciary as mandated under Article 175 of the Constitution of Pakistan. Lastly he referred to the list to show that in the monthly pension of at least 15 retired employees of this Court, the judicial allowance was added and has been given effect in the pension amount/calculation. In order to strengthen his arguments, the learned counsel referred to PLD 1994 SC 105, 1997 SCMR 141, PLD 1993 SC 375 and 1991 MLD 2546.

2. The learned Additional Advocate General Sindh argued that in fact the special judicial allowance allowed by this Court in the case of Amanullah Khan Yousufzai vs. Federation of Pakistan & others reported in PLD 2011 Karachi 451 is already under challenge before the apex Court. The petition was disposed of with the directions to the Government of Sindh to pay special judicial allowance equal to three times of the initial of their substantive pay w.e.f. 1.3.2010 when such allowances were extended to servants and employees of this Court through Notification dated 2.4.2010 issued by the honorable Chief Justice. Though he did not controvert the High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 through which the powers have been delegated to the Chief Justice as specified in Column--2 of Appendix ‘A’ and the powers in respect of the officers and servants of the High Court, its Benches and Circuit other than C.S.P. and P.C.S. Officers but he made much emphasis on Sindh High Court Establishment (Appointment & Conditions of Service) Rules 2006 and referred to Rule 15 which relates to the terms and conditions and argued that under the first proviso the powers of the Provincial Government shall be exercised by the Administration Committee or such other Judges upon whom the power may be delegated by the Administration Committee however, in the second proviso the Chief Justice whenever thinks fit may grant Special Allowance to any officer or an employee keeping in view the nature of services that he is required to perform. Rule 17 deals residuary powers which provides that all matters not specifically provided for in these rules, or in the provisions referred to in Rule 15 and all questions relating to the detail working of these Rules shall be regulated in accordance with such orders as the Chief Justice may make. While under Rule 19, Full Court by a Majority Vote may make amendment in the Rules. He also referred to Article 38 of the Civil Service Regulations (C.S.R) according to which pay means monthly substantive pay which includes also overseas allowance and technical allowance while the salary means sum of pay and acting allowance or charge allowance under Article 94 of Chapter-VIII. He also made reliance on Article 486 of the Civil Service Regulations (C.S.R) and argued that the term emoluments include pay as defined in F.R. 9(21)(a) (i), Senior Post Allowance, Special Pay of all types and nature, personal pay, Technical Pay, Index Pay, increments accrued during leave preparatory to retirement and any other emoluments which may specially classed as pay. It was averred that the judicial allowance cannot be treated part of emoluments as no such allowance is added in the definition of emoluments therefore the Judicial Allowance is not reckonable for the purposes of calculation of pension of the retired employees of the High Court. He also referred to a letter dated 29th August 2012 written by the Additional Secretary Finance Department, Government of Punjab to the Registrar Lahore High Court and argued that Lahore High Court also issued Administrative Notification declaring Judicial Allowance and Special Judicial Allowance as part of pay for the purposes of pension of Judicial Officers and Members of Establishment of Lahore High Court but in response to Notification, the Finance Department took the view that the pensioners of the Government or of the High Court constitute a class and draw their pension benefits under the Pension Rules 1955 and have to be treated alike. The effect of the disputed notification is to allow higher pension benefits to retired judicial officers and employees of High Court as compared to other retired employees and the request was made by the Finance Department Govt. of Punjab to the Registrar Lahore High Court to withdraw the Notification. However the learned A.A.G could not controvert the plea that in the case of some individual employees of this Court, the judicial allowance has already been made reckonable for their pension calculation and they are drawing the effect of this allowance in their pensions but a large number of employees have been deprived and discriminated. He further referred to Rule 5 of the Sindh Judicial Staff Service Rules 1992 which provides that the pay scales and allowances of the members of staff shall be as prescribed by Government from time to time.

3. The learned counsel for the petitioner and the learned A.A.G both had agreed that this petition may be disposed of at katcha peshi stage and they argued their case extensively.

4. Heard the arguments. According to Rule 2 of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960, the Chief Justice of the High Court of West Pakistan have the powers in respect of Judicial Officers up to the level of District and Sessions Judges and all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan in respect of the officers and servants of the High Court, its Benches and Circuits other than C.S.P. and P.C.S. officers, and the establishment of the Civil and Sessions Courts. For ready reference and convenience, Rule 2 of High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 is reproduced as under:--

5. Notwithstanding any provision to the contrary in any Civil Services Rules for the time being in force in the Province or any part thereof, the Chief Justice of the High Court of West Pakistan shall have--

(i) the powers specified in Column 2 of Appendix `A’ to these rules to the extent mentioned in Column 3 thereof in respect of Judicial Officers up to the level of District and Sessions Judges ; and

(ii) all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan, in respect of--

(a) The officers and servants of the High Court, its Benches and Circuits other than C.S.P. and P.C.S. officers, and

(b) The establishment of the Civil and Sessions Courts.

1. Appendix “A” of the aforesaid Rules elucidates and explicates the delegation of powers to the Chief Justice in respect of judicial officers. Entry No. 35 delegates the chief justice full power to sanction pension provided the pension is covered by the rules and the certified by the Audit Officer to be admissible and no deduction is to be made therefrom while Entry No. 36 delegates the powers to sanction commutation of pension provided the conditions laid down in the rules are fulfilled.

2. In the case of Government of Sindh v. Sharaf Faridi reported in P.L.D. 1994 S.C. 105, the honorable Supreme Court held that “financial independence of the judiciary can be secured if the funds allocated to the Supreme Court and High Courts (by the Parliament and the Provincial Assemblies in their respective annual budgets) are allowed to be disbursed within the limits of the sanctioned budget by the respective Chief Justices of these Courts without any interference by the Executive (in practical terms without reference and seeking the approval of the Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice would be competent to make reappropriation of the amounts from one head to another, create new posts, abolish old posts or change their nomenclature and to upgrade or downgrade etc. as per requirements of their respective Courts and this should be possible as has been observed earlier, without being obliged to seek the approval of the Ministry of Finance or the Provincial Finance Departments as the case may be, provided of course the expenditure that is incurred by them falls within the limits of the budget allocation for their Courts. To ensure financial discipline, as Accounts Officer of the Accountant-General may sit in all Courts for pre-audit and issue of cheques. In this way, the control of the executive over the judiciary in this important sphere will be eliminated and the judiciary enabled to function independently”.

3. In the case of Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad reported in 1997 S.C.M.R. 141, the apex Court held that “the status of persons employed in the Provincial High Courts, Federal Shariat Court and the Supreme Court of Pakistan and whose terms and conditions were governed under the rules framed by virtue of Article 208 of the Constitution directly arose in the case of Government of Punjab v. Mubarik Ali Khan, supra, and the view taken by the High Court in that case that the employees of the Provincial High Court, Lahore, do not find within the category of civil servants as defined in the Civil Servants Act”. In the case Mubarik Ali Khan supra, P.L.D. 1993 S.C. 375 the apex Court held that “the Legislature was not given any role to determine the terms and conditions of the employees including their remunerations and this exclusionary rule was found in conformity with the concept of independence of judiciary as enshrined in the Constitution”. It was further held by the apex Court that “the definition of service of Pakistan itself divides those included into two broad categories i.e, one of those employed in connection with the affairs of Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court Establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of the Province”.

4. Article 208 of the Constitution of Pakistan provides in clear terms that the Supreme Court and the Federal Shariat Court, with the approval of President and a High Court, with the approval of Governor concerned, may make rules providing for appointment by the Courts of officer and servants of the Court and for their terms and conditions of employment. Why the officers and servants of the Superior Court are to be treated differently than the civil servants employed by the Government is not far to see. The object in making special dispensation for the officers and servants of the Court as provided by Article 208 of the Constitution is to secure the independence of the Superior Courts which is essential for the working of any democratic form of Government. The Constitution ensures that as far as possible the High Court should remain independent and free from interference in its affairs by the executive authorities. Reference can be made to 1991 M.L.D. 2546.

5. The Sindh High Court Establishment (Appointment and Conditions of Service) Rules, 2006 were framed on 21.10.2006 (Notified on 18.11.2006) in exercise of powers conferred by Article 208 of the Constitution of Pakistan 1973 which repealed the High Court Establishment (Appointment and Conditions of Service) Rules, made under the authority of the Constitution 1956. It would be most expedient to keep an eye on Rule 15 pertaining to the terms and conditions of employment which is reproduced as under:

“15. Terms and Conditions:

Subject to these Rules other terms and conditions of service including pay, allowances, retirement, deputation, pension, gratuity, provident fund, benevolent fund, group insurance or other privileges of an employee shall be governed by the provisions for the time being in force and applicable to the employees in posts in the same scale in the Provincial Government:

Provided that the powers of the Provincial Government shall be exercised by the Administration Committee or such other Judges upon whom power may be delegated by the Administration Committee:

Provided further that the Chief Justice whenever he thinks fit may grant a special allowance to any officer or an employee keeping in view the nature of the services that he is required to perform”.

1. Let us first clarify that the Sindh Judicial Staff Service Rules, 1992 have no relevance or application in the present controversy and reliance on these rules by the learned A.A.G. is beside the point for the reason that these rules are meant for regulating recruitment of the staff to the posts specified in Rule 3 such as the staff in the various districts and sessions Courts, small causes Court Karachi and the subordinate civil Courts in the province of Sindh. So far as the Sindh High Court Establishment (Appointment and Conditions of Service) Rules, 2006 are concerned, these rules were framed on 21.10.2006 to regulate the appointment and conditions of employment of the officers and servants of the High Court of Sindh and its Rule 15 is based on a broad spectrum and canvas which includes the benefit of pension also so this is not the case of the petitioners or they have not knocked the doors of this Court for awarding the pension which is already being paid to them as per terms and conditions of service but what they are claiming is the inclusion or effect of judicial allowance for the purposes of calculation of their pension which was part of their emolument/pay or salary. The payment of judicial allowance cannot be treated as an adhoc relief or any benefit of contingent or reliant nature but it was one of the components of the emoluments which was being paid during active service without any interruption or interval but after retirement the benefit of allowance was recalled for the purposes of pension which is without any sagacity or rational. Despite encompassing field of Sindh High Court Establishment (Appointment and Conditions of Service) Rules 2006, we cannot ignore Rule 2 of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 which is also encircling field under which the Chief Justice of the High Court has the powers in respect of Judicial Officers and all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan in respect of the officers and servants of the High Court, its Benches and Circuits other than C.S.P. and P.C.S. officers, and the establishment of the Civil and Sessions Courts. Despite issuing repeated administrative orders/notifications from time to time, the Government of Sindh failed to implement the notifications and in the end the petitioners had left with no other option but to pray to the constitutional jurisdiction of this Court for recompense and straighten out their grievance.

2. Now we would like to embark upon the entreaty of the respondents as regards the minutiae of Article 486 of Civil Service Regulations (C.S.R):

SECTION IV--ALLOWANCES RECKONED FOR PENSION

Emoluments and Average Emoluments

[486. The term “emoluments” means the emoluments which the officer was receiving immediately before his retirement and shall include:--

(a) Pay as defined in FR 9(21)(a)(i);

(b) Senior Post Allowance ;

(c) Special Pay of all types and nature ;

(d) Personal Pay ;

(e) technical Pay ;

(f) Indexed Pay ;

(g) Increments accrued during leave preparatory to retirement ;

(h) Any other emoluments which may be specially classed as Pay.

Since the sub-article (a) of Article 486 C.S.R also refers to FR 9(21)(a) (i) therefore in order to make more clarity, we also refer to FR 9(21) (a) (i) as under:--

Combined Set of F.R. & S.R. VOL.I & II (Revised Edition).

(21) (a) Pay means the amount drawn monthly by a Government servant as--

(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an Officiating capacity, or to which he is entitled by reason of his position in a cadre, and

(ii) overseas pay, technical pay, special pay and personal pay, and

(iii) any other emoluments which may be specially classed as pay by the Governor-General.

1. If the reliance placed by the respondents on the aforesaid F.R & S.R and C.S.R is considered to be literal and ingenuous even then they have no conceivable justification to deprive or divest the effect of judicial allowance from the calculation of pension. In addition thereto, the Special Pay of all types and nature is part of emoluments including other emoluments which may be specially classed as Pay. So far FR 9(21)(a)(i) of F.R & S.R is concerned it also does not debar or make any embargo under which the Government may obliterate or wipe out the effect of judicial allowance from the pension’s calculation rather overseas pay, technical pay, special pay and personal pay are also integral part of it except the pay, other than special pay or pay granted in view of personal qualifications, which has been sanctioned for a post held by an employee substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre. The judicial allowance was allowed to the employees across the board, neither it was extended to a person specific nor it was allowed on contingent or transient basis nor sanctioned for a post held by an employee substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre. The terms “emoluments” used under Article 486 of C.S.R means the emoluments which the officer was receiving immediately before his retirement and judicial allowance was also part of emolument in this case, Besides much extended meaning of emolument, clause (h) of it makes it more clear that any other emolument which may be specially classed as pay. The nomenclatures of emoluments alluded to Article 486 and FR 9(21)(a) (i) of F.R & S.R are not restrictive but exhaustive in nature and if we get hold of it there would be no improbability to perceive that judicial allowance is a part of emoluments/pay/salary and reckonable being one of the components for pension calculation. It is worthwhile to draw attention to Article 487 of Civil Service Regulations (C.S.R), in which the term “Average Emoluments” means the average calculated upon the last three years of service while Article 488 defines the allowances which do not count such, as local allowances and deputation (local) allowances; messing allowances, working allowances and provision allowances to office department which is not the case at this juncture.

2. After considering the pros and cons it is quite visible that under the delegated powers conferred through 1960 Rules, the Chief Justice of High Court has all the powers of government in the administrative department under the Civil Services Rules in respect of the officers and servants of the High Court and these powers are in addition to and not in derogation of the powers already vested in or delegated to him under any law, rule or order in force. Even the rules made under Sindh High Court Establishment (Appointment and Conditions of Service Rules 2006 have no overriding effect on the delegated powers of the Chief Justice of the High Court. Albeit the administrative order passed by the then Chief Justice on 6.7.2012 do show that judicial allowance per policy decision dated 13.4.2006 of the then hon’ble Chief Justice was treated as emolument for the purpose of pension, in respect of judicial officers. Erstwhile A.C. in its meeting dated 17.2.2007 made applicability of judicial allowance with effect from 03.01.2000 and the benefit of judicial allowance was however extended to the staff and officers of High Court of Sindh by the then hon’ble Chief Justice. The above order further refers to that in principle it was decided that staff/officers of this Court were allowed/entitled to judicial allowance which was treated as emolument for the purpose of pensionary benefit per terms of Article 486 Section IV of C.S.R. So taking into account forgoing raison d’être we have reached to an unequivocal concluding stage that judicial allowance is reckonable for the calculation of pension as part of emoluments.

3. The next question that now arises for consideration or crop up in our mind whether this benefit will extend to the petitioners alone and or other retired employees also who are placed in a similar position. Precisely we mean to deduce and figure out the terminology and phraseology of judgment in rem.

Wharton’s Law Lexicon (Fifteenth Edition).

Judgment in rem, a judgment in rem is one which declares, defines or otherwise determine the jural relation of a person or thing to the world generally, Satrucharla v. Vijayarama Raju v. Nirmaka Jaya Raju, (2006) 1 SCC 212. Means a judgment that determines the status or condition of property and that operates directly on the property itself. Also termed in rem judgment, Black’s Law Dictionary, 7th Edn., p. 847. “Judgment in rem” is one which declares, defines or otherwise determines the jural relationship of a person or thing to the world generally, Satrucharla Vijaya Rama Raju v. Nirmaka Jaya Raju, 2006 1 SCC 212.

Black’s Law Dictionary (Sixth Edition), Judgment in rem.An adjudication pronounced upon the status of some particular thing or subject matter, by a tribunal having competent authority. Booth v. Copley, 283 Ky. 23, 140 S.W. 2d 662, 666. It is founded on a proceeding instituted against or on something or subject matter whose status or condition is to be determined, Eureka Building & Loan Ass’n v. Shulz, 139 Kan. 435, 32 P.2d 477, 480; or one brought to enforce a right in the thing itself. Federal Land Bank of Omaha v. Jefferson 229 Iowa 1054, 295 N.W. 855, 857. It operates directly upon the property. Guild v. Wallis, 150 Or. 69, 40 P.2d 737, 742. It is a solemn declaration of the status of some person or thing. Jones v. Teat, Tex.Civ.App., 57 S.W. 2d 617, 620. It is binding upon all persons in so far as their interests in the property are concerned. See also judgment quasi in rem.

1. In the case of “Hameed Akhtar Niazi v. Secretary Establishment Division Pakistan”reported in 1996 SCMR 1185, the apex Court in the majority view held as under:--

“16. In our view, it will be just and proper to remand the case to the Tribunal with the direction to re-examine the above case after notice to the affected persons and to decide the same afresh in the light of above observations. We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum.”

1. While in the case of “Federation of Pakistan v. Qamar Hussain Bhatti” reported in P.L.D. 2004 Supreme Court 77, the apex Court held as under:

“Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, ‘Res inter alias judicata nullun inter alios prejudicium facit’ or ‘Res inter alias acta alteri nocere np debit’. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reasons why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense”.

1. In the wake of above discussion, this petition is admitted to regular hearing and disposed of as under:--

(a) The judicial allowance is part of emolument therefore it is reckonable for the calculation of pension. Consequently; the employees those were receiving judicial allowance as component of their monthly emoluments are entitled to the inclusion and effect of judicial allowance in their pension

(b) The petitioners and all other retired employees placed in the similar position are entitled to the above relief and the respondents are directed to re-calculate their pension within two months after giving the effect of judicial allowance and start the future payment accordingly.

(c) Subject to the conditions mentioned in clauses (a) & (b) above, the respondents shall also pay the arrears within three months with effect from the date when the payment of pension was started or set in motion.

(R.A.) Petition admitted

PLJ 2015 Karachi 401 (DB)

Present: Muhammad Ali Mazhar and Ashraf Jahan, JJ.

MUMTAZ OAD (HINDU) and 2 others--Petitioners

versus

SINDH PUBLIC SERVICE COMMISSION through Secretary and 2 others--Respondents

C.P. No. D-1009 of 2013, decided on 28.5.2015.

Public Functionaries--

----Scope of--Function in good faith--It is also well settled that nobody should be penalized by inaction of public functionaries. [P. 406] A

Constitution of Pakistan, 1973--

----Preamble--Adequate provision shall be made for minorities to freely profess and practice their religion and develop their cultures and legitimate interests of minorities and backward and deprived classes shall also be safeguarded. [P. 406] B

Constitution of Pakistan, 1973--

----Art. 260(3)--Minorities--Non-Muslim means a person who is not a Muslim and including a person belonging to Christian, Hindu, Sikh, Buddhist or Parsi Community. [P. 406] C

Constitution of Pakistan, 1973--

----Arts. 199 & 260(3)--Constitutional petition--Minorities--Employments--Entitled on basis of quota reserved for minorities--Violation of fundamental rights--Not only rights of minorities are fully protected and safeguarded but to more than a sizeable magnitude their rights are being provided and it is not case that they are not being treated alike rather they are enjoying all fundamental rights being citizens the country. [P. 407] D

Good governance--

----It is also well settled that object of good governance cannot be achieved by exercising powers, unreasonably or without application of mind. [P. 407] E

Mr. Ghulam Ali Abbasi, Advocate for Petitioners.

M/s. Sibtain Mehmood and Abdul Jalil Zubedi, AAG(s)

Syed Zakir Ali Shah, Special Secretary, Education Department, Government of Sindh.

Mr. Abdul Aziz, Assistant Director, Sindh Public Service Commission.

Date of hearing: 28.5.2015.

Order

Muhammad Ali Mazhar, J.--This petition is brought to seek the directions against the respondents to act upon 05% reserved quota in the Government services for the minorities in terms of Notification issued on 28.5.2010 by the Services, General Administration and Coordination Department (Regulation Wing) Government of Sindh.

1. The epigrammatic facts as narrated in the memo of petition are that the petitioners belong to the Minorities and being the citizens of this country they have equal rights, privileges and protection as envisaged under the Constitution of Pakistan. The Respondent No. 1 in order to fill the vacant posts under the control of Respondent No. 2 and 3 invited Applications through advertisement published in the newspapers on 04.09.2012. Besides other posts, the vacancies for the post of Lecturer (English) BPS-17 were also announced with rational distribution of vacancies amongst Rural and Urban areas. The petitioners applied for the posts of Lecturer (English) BPS 17 and they were called upon to appear in the Written Test and after qualifying the written tests, they were also called for interviews. However on 15.2.2013, the Respondent No. 1 announced the result but the names of the petitioners were not found in the successful candidates’ either on merits or on reserved 5% quota fixed for minorities.

2. The learned counsel for the petitioners argued that non-acting upon 05% reserved quota by the respondents has severely affected and invaded the fundamental rights of the petitioners. The petitioners are entitled to be selected/recommended for the posts of Lecturer English BPS-17 in Education and Literacy Department (Government of Sindh) on the basis of Quota reserved for Minorities. The act of Respondent No. 1 in particular and Respondent Nos. 2 and 3 in general has put the petitioners into disappointment which is blatant violation of their fundamental rights. Despite qualifying the written test, the petitioners were not afforded opportunity to serve in the education department.

3. The learned AAG referred to the comments filed by Sindh Public Service Commission (Respondent No. 1) in which they admitted that applications were invited for various posts through advertisement and they conducted written test for the post of Lecturer English (Male and Female). Total 259 candidates (Male) appeared in the test including the petitioners out of which 74 were declared qualified in the written test including the petitioners who appeared in the viva-voce also with other candidates before the Interview Committee appointed by the Commission, but the petitioners were declared failed in the interview so their names were not recommended for the appointment. So far as the main controversy involved in this case regarding 5% quota for the minorities is concerned, it is stated in the comments that the Commission received requisition for recruitment without reserving 5% quota. Simultaneously, the learned AAG also referred to the comments filed by Respondent No. 3 (Secretary, Education & Literacy Department) in which a position was taken that 5% quota was reserved for minorities as circulated by the Federal Government of Pakistan and the Government of Sindh and the Respondent No. 3 in its requisition form advised the Sindh Public Service Commission to mention ratio but the present petitioners applied on open merits and not on the basis of reserved quota. It is further stated in the comments that the Respondent No. 3 never created any barrier for the recruitment on open merits but in the case in hand the petitioners themselves not applied on the basis of 5% quota reserved for the minorities and they opted to appear in test on open merit. The learned AAG further argued that in terms of notification referred to above, it was obligatory to reserve the quota in the advertisement but no such indication was given by the Respondent No. 1 in the advertisement though all the respondents are bound to act in terms of the notification reserving 5% quota for minorities in the jobs. The learned AAG also confirmed that the notification is in field and the respondents are bound to act accordingly in future also.

4. The bone of contention in the case is 5% quota reserved for minorities and its due implementation in letter and spirit while the respondents took the plea that the petitioners did not apply on the quota basis but participated in the process on open merits. Now for us it is to be seen what sincere efforts were made by the respondents including Sindh Public Service Commission for putting into practice the notification of reserved quota issued for the minorities in order to accommodate them a range of job prospects. With a view to lighten up the controversy, it would be expedient and constructive to reproduce the Notification in question:

“No. SORI (S&GAD)2-17/1994

GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION AND COORDINATION DEPARTMENT (REGULATION WING)

Karachi dated the 28th May, 2010

To, 1. Addl. Chief Secretary to Govt. of Sindh, Planning and Development Department, Karachi.

1. Senior Member Board of Revenue, Karachi

2. All Administrative Secretaries to Govt. of Sindh, Karachi

Subject:- RESERVATION OF 05% QUOTA FOR EMPLOYMENT OF MINORITIES (NON MUSLIM ACROSS THE BOARD IN SINDH GOVT. SERVICES/JOBS).

In pursuance of the Federal Govt. office memorandum, dated 26.05.2009 Govt. of Sindh is pleased to reserve with immediate effect 05% quota for employment of Minorities (Non Muslim) as defined in Article 260(3)(b) of the Constitution of Islamic Republic of Pakistan, 1973, to all posts across the board in the Sindh Government Services/jobs to be filled by direct recruitment including the Combined Competitive Examination in addition to the participation in the open merit.

The above reservation will not apply to:--

(i) Appointment made against the Project related posts.

(ii) Recruitment made by promotion or transfer in accordance with the relevant rule.

(iii) Short term vacancies likely to last for less than six months and

(iv) Isolated post in which vacancies occur only occasionally.

1. These orders shall also apply to initial appointments in all attached departments/autonomous semi-autonomous bodies/ corporations/public and corporations etc. administratively controlled by the Sindh Government.

2. All Administrative Departments are requested to kindly bring the above instructions to the notice of all concerned for information and compliance while making future recruitment.

CHIEF SECRETARY GOVERNMENT OF SINDH

No. SORI (S&GAD) 2-1/94 Karachi dated 28th May 2010

A copy is forwarded to the Superintendent, Sindh Government Printing Press, Karachi, with a request to publish the same in the next issue of the Sindh Government Gazette and supply 300 copies thereof to this Department.

SECTION OFFICER (REG-I)”

No. SORI (S&GAD) 2-1/94

A copy is forwarded for information to:

1………………

………………..

………………..

1. The above Notification was issued with reference to the Article 260(3)(b) of the Constitution and Chief Secretary, Government of Sindh had reserved with immediate effect 5% quota for employment of minorities to all posts across the board in the Government Services, which may be filled by direct recruitment including the combined competitive examination in addition to the participation in the open merit. In the same notification all the administrative departments were advised to bring the instructions contained in the notification to the notice of all concerned for information and compliance while making further recruitment. The notification further states that this will also apply to initial appointment in all attached departments, autonomous, semi-autonomous bodies and corporations etc. administratively controlled by the Sindh Government. It is discernible from the notification that copy of it was endorsed to various Sindh Government Departments and Sindh Public Service Commission also to put into effect but neither the Sindh Government took care of the reserved quota nor the commission acted aptly to ensure its due implementation. On the contrary, the Sindh Government and Sindh Public Service Commission both are shifting burden and blaming each other for the non-compliance. The fact remains that advertisement attached with the memo of petition does not show that any reserved quota was mentioned for its consumption which is sheer violation and contravention of the directives issued under the notification so in our view the Sindh Government and Sindh Public Service Commission both are found at fault and equally responsible for non-compliance. Nevertheless, it is noticeable from their standpoint that they have not denied the existence of quota and in this regard, Syed Zakir Ali Shah, Special Secretary, Education Department, Government of Sindh clearly admitted that the quota reserved for minorities should have been followed and mentioned in the advertisement and due to some oversight it could not pointed out in the advertisement. Had the respondents mentioned the reserved quota in the public advertisements, the petitioners would have applied on the basis of quota reserved for the minorities but due to non-mentioning the quota specifically they applied on open merits but found failed in the interviews.

2. The public functionaries are required to function in good faith, honestly and within precinct of their powers so that the concerned person should be treated in accordance with law without any discrimination. They are obliged to act fairly, equitably and without any element of personal bias or discrimination, as they are like public trust therefore, they should regulate their affairs of duties in a fair and transparent manner to promote the sense of public service. It is also well settled that nobody should be penalized by inaction of the public functionaries. The preamble of our Constitution clearly envisions that adequate provision shall be made for the minorities to freely profess and practice their religion and develop their cultures and legitimate interests of minorities and backward and deprived classes shall also be safeguarded. Article 36 of the Constitution provides that the State shall safeguard the legitimate rights and interest of minorities including their due representation in the federal and provincial services. Similar provisions are postulated and alluded to under the Objective Resolution (Article 2-A), which is a sheet-anchor and substantive part of our Constitution and reflects aspirations of the people of Pakistan so as to what they want and how they want to be governed. Since the notification refers to Article 260(3)(b), therefore we also visited the said article in which non-Muslim means a person who is not a Muslim and including a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi Community. A person of the Qadiani Group or the Lahori Group called themselves Ahmedis or a Bahai and a person to any of schedule castes.

3. The founder of Pakistan, Quaid-i-Azam, Muhammad Ali Jinnah had also assured that the minorities will have their protection with regard to their religion, faith, their life, their culture. They will be in all respects, the citizens of Pakistan without any distinction of caste or creed. Replying to a deputation of the Hindu members of the East Bengal Legislative Assembly on March 22, 1948, Quaid-i-Azam Mohammad Ali Jinnah said:

“We stand by our declarations that members of every community will be treated as citizens of Pakistan with equal rights and privileges and obligations and that the minorities will be safeguarded and protected”.

Reference: Speeches and Statements of the Quaid-i-Azam Muhammad Ali Jinnah. (Dr.Rafique Afzal). Research Society of Pakistan.

1. In our Constitution, not only the rights of minorities are fully protected and safeguarded but to more than a sizeable magnitude their rights are being provided and it is not the case that they are not being treated alike rather they are enjoying all fundamental rights being citizens of this country. Nonetheless, what we have noticed in our astute that the petitioners before us became sufferer due to callous and reckless conduct which unjustly gave cause of grievance to the petitioners. Under Article 3 of the Constitution, it is incumbent upon the state to ensure elimination of all forms of exploitation and the gradual fulfillment of fundamental principles from each according to his ability, to each according to his work. Under Article 38, (Principle of policy), it is provided that the state shall secure the wellbeing of the people, irrespective of sex, caste, creed, or race by raising their standard of living by preventing concentration of the 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 right between employer and employee and landlord and tenant. It is also well settled that object of good governance cannot be achieved by exercising powers, unreasonably or without application of mind.

2. As a result of this discussion, this Constitution Petition is disposed of along with pending application in the following terms:--

(a) In future the respondents shall ensure that the quota reserved for minorities in the provincial services shall be strictly followed in terms of Notification No. SORI (S&GAD) 2-17/1994, issued by the Government of Sindh, Services, General Administration & Coordination Department (Regulation Wing), dated 28th May, 2010.

(b) The respondents shall also make sure that reserve quota is mentioned in all advertisements released for inviting job applications through newspapers and concerned web-sites and continue this till such time the above Notification remains in field.

(c) The petitioner shall be allowed to participate in the forthcoming recruitment process on 5% reserve quota and the Respondent No. 1 is directed to process the applications in accordance with law and if their credentials and antecedents are found compatible with the job descriptions they shall be considered for the appointment after fulfilling prerequisites.

(R.A.) Petition disposed of

PLJ 2015 Karachi 408 (DB)

Present: Irfan Saadat Khan and Zafar Ahmed Rajput, JJ.

TALAAT INAYATULLAH KHAN and another--Appellants

versus

Dr. ANIS AHMAD SHEIKH--Respondent

H.C.A. Nos. 46 and 47 of 2012, decided on 11.6.2014.

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

----O. XXXVIII, Rr. 1 & 2--Immovable property--Jurisdiction--Private contract--Attachment before judgment--Before exercising power conferred by O. XXXVIII, C.P.C. Court should be satisfied on two points--Cause of action is prima facie an unimpeachable on subject to proving allegations/claims made in plaint; second being that Court should have reason to believe on basis of materials that unless jurisdiction is exercised there is a real danger that defendant may remove himself from the ambit of powers of Court.

[P. 415] A & B

Contract--

----Privity of contract, doctrine of--Scope--Doctrine of privity of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except parties to it--Only parties to contracts should be able to sue to enforce their rights or claim damages. [P. 415] C

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

----S. 12--Civil Procedure Code, (V of 1908), O. XXIII, R.I--High Court appeal--Suit for specific performance of agreement to sell--Withdrawal of suit--Return of money--Scope--Interim injunction was granted subject to deposit of balance consideration amount in Court--Subsequently plaintiff withdrew his suit and filed application for return of his balance consideration amount deposited by him--Validity--Plaintiff had a right to withdraw his suit unconditionally whenever he desired under O.XXIII, R.I, C.P.C.--Where suit was withdrawn unconditionally all interim orders and consequential acts had become ineffective--After unconditional withdrawal of suit, plaintiff was entitled to receive his amount with profit deposited by him under Court's order--Single Judge of High Court rightly reviewed his order and allowed return of money--No irregularity or illegality was noticed in order passed by Single Judge of High Court requiring interference by Division Bench of High Court--Appeal was dismissed.

[P. 416] D, E & F

2007 MLD 447 rel.

Mr. Abdul Hameed Siddiqui, Advocate for Appellants.

K.A. Wahab for Respondent.

Date of hearing: 13.2.2014.

Judgment

Zafar Ahmed Rajput, J.--By this common judgment, we intend to dispose of above mentioned two High Court Appeals arising out of the same Order of the learned Single Judge of this Court dated 26-3-2012, one was passed on C.M.A. No. 1412/2011, under Order LXII, Rule 1, read with Order IX, Rule 9 and section 151, C.P.C., filed by the respondent/plaintiff in Suit No. 1478 of 2004, against that Order the appellant/defendant has preferred H.C.A. No. 46 of 2012 and other was passed on CMA No. 10343/2011, under Order XXXVIII, Rules 1 and 2 read with section 151 C.P.C, filed by the appellant/plaintiff in Suit No. 1551 of 2010, against that order the appellant/plaintiff has preferred H.C.A. No. 47 of 2012.

1. Briefly stated, the facts of the case are that the respondent/ plaintiff filed Suit No. 1478 of 2004 for specific performance, declaration and injunction against the appellant/ defendant and 2 others in High Court of Sindh under its original jurisdiction, in respect of an immovable property i.e. bungalow No. 261/C, admeasuring 500 sq. yds. situated in Darus Salam Cooperative Housing Society, Sector 31, Korangi Township, Karachi. The appellant/defendant contested the said suit by filing written statement. On 30-5-2005 the learned trial Court directed the respondent/ plaintiff to deposit an amount of Rs.37,64,000 reflected as outstanding in Sale Agreement dated 17.7.2004. The respondent/ plaintiff deposited the said amount with Nazir of the Court and thereafter the learned trial Court, vide order dated 24-4-2005, directed the Nazir of the Court to invest the said amount in some profitable government scheme.

2. Subsequently, the respondent/plaintiff filed an application under Order XXIII, Rule 1, C.P.C., (C.M.A. No. 8318/2010) for unconditional withdrawal of the said suit and the amount deposited by him with profit thereon. The appellant/ defendant filed her counter affidavit to the said application, wherein she while opposing the said application, inter alia alleged that she has inflicted heavy damages on her person, and before the said application could be argued, the appellant/defendant filed Suit No. 1551/2010 for damages against the respondent/defendant, along with an application under Order XXXVIII, Rules 1 and 2 C.P.C. (C.M.A. No. 1551 / 2010) for attachment of amount of the respondent/defendant lying with the Nazir of the Court and also for furnishing security and to deposit his passport in the Court to restrain him to leave territorial jurisdiction till the disposal of the said suit. The learned Single Judge of this Court vide Order dated 11-01-2011 granted C.M.A. No. 8318/2010 conditionally, to the extent of allowing the respondent/plaintiff to withdraw his suit bearing No. 1478 of 2004. However, as to amount deposited with the Nazir, it was ordered that as C.M.A. No. 1551/2010 in Suit No. 1551 of 2010 for attachment of the said amount had not been heard by that time, therefore, withdrawal of the said amount would be subject to disposal of the said application. Thereafter, the respondent/plaintiff filed CM.A. No. 1412/2011, under Order XLVII, Rule 1, read with Order IX, Rule 9 and Section 151, C.P.C., in Suit No. 1478 of 2004 for review of Order dated 11-1-2011.

3. On 26-03-2012, the learned Single Judge of this Court, after hearing learned counsel for the parties, by a common Order allowed C.M.A. No. 1412 of 2011, filed by the respondent/plaintiff in Suit No. 1478 of 2004, whereby the Nazir was directed to release the amount deposited by him along with profit, if any, accrued thereon, and dismissed C.M.A. No. 10343 of 2011, filed by the appellant/plaintiff in Suit No. 1551 of 2010. This order has been impugned by the appellant in two intra Court appeals. H.C.A. No. 46 of 2012 has been preferred against the Order passed on C.M.A. No. 1412 of 2011, under Order XLVII, Rule 1, read with Order IX, Rule 9 and section 151, C.P.C., filed by the respondent/plaintiff in Suit No. 1478 of 2004 while, H.C.A. No. 47 of 2012 has been preferred against the order passed on C.M.A. No. 10343 of 2011, under Order XXXVIII Rules 1 and 2, read with section 151, C.P.C, filed by the appellant/plaintiff in Suit No. 1551 of 2010.

4. We have heard the learned counsel for the parties and have also perused the material available on record.

5. Abdul Hameed Siddiqui, the learned counsel for the appellant, has contended that the respondent has already moved to USA on immigration, and has liquidated all his assets in Pakistan and the only asset now left in Pakistan is the amount lying with the Nazir of the Court for that the respondent filed an application (C.M.A. No. 8318/2010) for withdrawal of his deposited amount in Suit bearing No. 1478 of 2004 for specific performance; therefore, the appellant moved an application (C.M.A. No. 10343/2010) for attachment of amount of respondent lying with the Nazir of the Court and also for furnishing security and to deposit his passport in the Court to restrain him to leave territorial jurisdiction till the final disposal of her suit, as the judgment and decree would be frustrated if passed in favour of appellant in her suit for damages worth Rs.23 crores. He has also contended that under the said circumstances the grant of C.M.A. No. 10343/2011 in Suit No. 1551 of 2010, was in the interest of justice while, C.M.A. No. 1412/2011 filed by the respondent in Suit No. 1478 of 2004 was liable to be dismissed, but the learned Single Judge of this Court misinterpreted the scope of Order XXXVIII, Rule 5, C.P.C. by mixing up with preventive and punitive effects of the said provision of C.P.C, and thus passed the impugned Order erroneously, which is liable to be set aside.

6. Per contra, Mr. K. A Wahab, the learned counsel for the respondent, supporting the impugned Order, has argued that the appellant mala fidely and maliciously filed Suit No. 1551 of 2010 for damages after filing of the application for withdrawal of Suit No. 1478 of 2005 by the respondent. He also argued that the appellant has already received Rs. 10,86,000 as part payment against the sale consideration and so far the alleged claim of huge damage to her property is concerned, it is matter of record that in order to ascertain this allegation, the Assistant Registrar was appointed to inspect the suit property, who submitted his report on 27-10-2010, which was found to be in possession of the appellant; therefore, the allegation is totally baseless. He further argued that the appellant deliberately and purposely made false statement in para-1 of the plaint that Suit No. 1478 of 2004 was filed against her, as the same was filed against Ms. Saba Rasheed for specific performance and the appellant was impleaded only for the reason as she acted as attorney of Ms. Saba Rasheed and no relief was claimed in the said suit against the appellant in her personal capacity; therefore, the suit of appellant for damages is itself not maintainable in law.

7. After hearing the learned counsel and perusing the material on record, what has emerged from the facts of the case is that in appropriate cases the Court can pass any order in respect of the matters set out in the pleadings including an order for attachment of property before judgment or for calling upon defendant to furnish security for appearance, etc. to secure the rights of the party to the suit. Such an order is within the discretion of the Court and will not be passed unless person seeking such relief establishes a strong prime facie case. Therefore, the learned Single Judge of this Court allowed the CM.A. No. 1412 of 2011, filed by the respondent in Suit No. 1478 of 2004 and dismissed CM. A. No. 10343 of 2011, filed by the appellant in Suit No. 1551 of 2010. The relevant portion of the impugned Order reads as under:

“10. It is an admitted position on record that the parties to the suit are in litigation since 2005. It is also an admitted fact that parties were entered into sale agreement in respect to the suit property and plaintiff Dr. Anis had paid sufficient amount against the sale consideration and the remaining balance payment was deposit with the Nazir of this Court in compliance of the order. It may be observed that it is the duty of the Court that before passing any order it must be satisfied with regard to the intention of the party seeking relief whether he approached the Court with clean hands or not and that the balance of convenience is in his/her favour. In the case in hand, the plaintiff Talaat lnayatullah instituted the Suit on 11.10.2010 along with application under Order XXXVIII Rules 1 and 2, C.P.C. after filing of application of withdrawal in Suit No. 1478 of 2005 on 10-8-2010. Plaintiff Talaat Inayatullah has taken such plea of suffering loss, which has been taken for the first time in her suit for damages. No application for attachment of amount was made in Suit No. 1478 of 2005. The plaintiff Talaat Inayatullah filed suit after filing application for withdrawal of suit by Dr. Anis, which clearly shows the intention of the plaintiff. Further, the object of Order XXXVIll was not to paralyze the normal bona fide transaction and unless it was established that defendant was about to withdraw the amount to intent to defeat or delay decree that night be passed, normally Court was not to pass the order of attachment before judgment. Plaintiff Dr. Anis is prior of time to that of Talaat Inayatullah and on principle of qui prior est tempore portior estjure (he has a better title who was first in time) Talaat Inayatullah had no prima facie case and balance of convenience was also not in her favour. Therefore, I am not inclined to attach the amount deposited by Dr. Anis with the Nazir of this Court in compliance of the order passed by this Court, particularly, when the defendant Talaat Inayatullah had already received amount of Rs. 10,86,000 in respect of sale of property in question. Resultantly, CM.A. No. 10343 of 2010 dismissed.

1. As regards application CM.A. No. 1412 of 2011 for recalling the Order dated 11-1-2011, passed on application under Order XXIII, Rule 1, C.P.C, whereby this Court partly allowed the application for withdrawal of suit unconditionally and declined the prayer for withdrawal of amount deposited by Dr.Anis with the Nazir of this Court, it is observed that it is a settled proposition of law that no one shall suffer on account of error of Court. Moreover, the Court is obligated to look after and protect interest of a party on its own. The error of being . apparent is liable to be corrected. Since the money deposit by the Nazir was pursuant to the order of this Court for specific performance of the sale agreement and once the suit itself allowed to be withdrawn, there was no justification in declining the prayer of withdrawal of money. Therefore, I recall the order dated 11-1-2011 to the extent of declining the prayer for withdrawal of amount and allow the instant application. Nazir is directed to release the amount deposited by plaintiff Dr. Anis Ahmed Shaikh along with profit, if any, accrued thereon.”

2. The main thrust of the arguments of learned counsel for the appellant was to the effect that for if CM.A. No. 1441 of 2010 (under Order XXXVIII, Rules 1 and 2, C.P.C.) is not allowed the judgment and decree would be frustrated if passed in favour of appellant in her suit for damages. Order XXXVIII, Rules 1 and 2, C.P.C. deals with attachment before judgment, which reads as under:

3. Where a defendant may be called upon to furnish security for appearance.--Where at any stage of a suit other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court is satisfied by affidavit or otherwise,--

(a) that the defendant with intent to delay the plaintiff or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him:-

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or

(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave [Pakistan] under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

1. Security.--(1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself in default of such appearance to pay any sum of money which the defendant may be ordered to pay in the suit.

1. We are of the view that before exercising the power conferred by Order XXXVIII ibid a Court should be satisfied on two points. First, that the plaintiff's cause of action is prima facie an unimpeachable one subject to his/her proving the allegations/claims made in the plaint. Second, that the Court should have reason to believe on the basis of materials that unless the jurisdiction is exercised there is a real danger that the defendant will remove himself from the ambit of the power of the Court. For the reasons which we are about to give, we do not think it is necessary for us to go into the second point in this case as we do not think that the appellant/plaintiff has succeeded in establishing her position on the first point. For the reason, besides given by the learned Single Judge in the impugned Order, that it is an admitted position that there was no privity of contract between the respondent and the appellant in her personal capacity but was between the respondent and one Saba Rasheed and the respondent filed Suit No. 1478 of 2004 against Ms. Saba Rasheed for specific performance wherein the appellant was impleaded only for the reason as she acted as attorney/agent of Ms. Saba Rasheed and no relief was claimed in the said suit against the appellant in her personal capacity. The doctrine of privity of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it. The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages. As such, the suit of appellant for damages in her personal capacity itself appears to be not maintainable under the law. By observing so, we do not propose to say anything about merits of the case, but we think before we pass any order under Order XXXVIII, C.P.C., we must at least be satisfied that the plaint does not reveal on the face of it any matter which is obviously uncertain and arguable. In our view the plaint discloses highly contentious matter.

2. So far the order passed on C.M.A. No. 1412 of 2011, is concerned, we are of the view that the plaintiff has a right to withdraw his suit unconditionally whenever he desires under Order XXIII, Rule 1, C.P.C., and where a suit is withdrawn unconditionally all interim orders and consequential acts become ineffective. Reference in this regard can be made on the case of Johra Saeed and another v. University of Health Sciences through Vice Chancellor and 2 others (2007 MLD 447). Therefore, after unconditional withdrawal of the suit, the respondent/ plaintiff is entitled to receive his amount with profit deposited by him with Nazir under Court's Order. Therefore, the learned Single Judge has rightly reviewed his Order dated 11-1-2011, while allowing said CMA No. 1412 of 2011.

For the foregoing reasons, we have not found any irregularity or illegality in the impugned order, requiring any interference by this Court in appellate jurisdiction, therefore, the instant appeals are dismissed along with the listed application, with no order as to costs.

(R.A.) Appeals dismissed

PLJ 2015 Lahore 1[Multan Bench Multan]

Present: MuhammadQasim Khan, J.

ABDUL KARIM FIRDOUS and another--Petitioners

versus

STATE and 7 others--Respondents

W.P. No. 239 of 2014, decided on 16.1.2014.

Constitution ofPakistan, 1973--

----Art. 199--Illegal Dispossession Act, 2005, Ss. 3(1) & 7--Private complaint--Dismissal of--Basic ingredient to invoke provisions of Illegal Dispossession Act--Possession was handed over voluntarily--Procedure for ejectment of property under law--Validity--To maintain a complaint under Illegal Dispossession Act, it must contain basic ingredients i.e. accused must enter into property and dispossess owner/occupant, without having any lawful authority to do so, but when a person has been, authorized to use property then owner/landlord who himself delivered possession of property in a lawful manner, cannot seek shelter under Illegal Dispossession Act, 2005, as it would in fact tantamount to declare other relevant laws redundant and petitioners cannot be allowed to circumvent other lawful process under garb of a complaint under Illegal Dispossession Act, 2005--Trial Court, therefore, committed no illegality, irregularity or jurisdictional defect in dismissing complaint of petitioner--Writ petition was dismissed. [P. 4] A

M/s. MuhammadIhsan Alvi and Syed Waheed Raza Bokhari, Advocate for Petitioner.

Malik Muhammad Bashir Lakheser, Assistant Advocate General and Mr. Muhammad Ali Shahab, Deputy Prosecutor General for Respondents.

Date of hearing: 16.1.2014.

Order

Briefly the facts of the case are that petitioners filed a complaint against the private respondents under Section 3(1) read with Section 7 of the Illegal Dispossession Act, 2005, precisely to the effect that they (petitioners) are owners of land measuring 01-kanal situated in Khewit No. 187/149 Khattoni No. 359, Multan road opposite Faisal Bank, Qasba Burewala under Mutation No. 1912/1 dated 21.08.2004. Further Para-2 of the said complaint reads as under:--

یہ کہ جائیداد متذکرہ زیر استعمال نہ تھی بلکہ under construction پڑی تھی سائلان کے پسر محمد رمضان مسئول علیہم نمبران 3, 4کی تعلق دارئ تھی اس بنا پر ماہ مئی سنہ 2010میں مسئول علیہم نمبران 3, 4نے باہمراہی پسر محمد رمضان جائیداد متذکرہ عارضی استعمال کے لیے عرصہ تین ماہ کے لیے سائلان سے مانگی۔ سائلان نے مسئول علیہم نمبران 3, 4کو جائیداد کی چابی گیٹ کیساتھ دے دی کہ جیسے ہی سائلان کو ضرورت ہوگی اور سائلان جیسے ہی واپسی قبضہ کا مطالبہ کریں گے۔ تو مسئول علیہم نمبران 3, 4فالفور جائیداد متذکرہ کا قبضہ حوالہ سائلان کر دیں گے۔

With above narration, it was averred that in June, 2010, the petitioners asked Respondents No. 3 and 4 that property was required for personal use and that possession of the same be returned to the petitioners. Instead of returning back possession of the land, Respondents No. 3 and 4 started raising unauthorized and illegal construction on the said property and furthermore without permission of the petitioners they made Habib and Munir to sit and run oven clay in front of the said property and also parked the vehicles of adjoining workshops around the property. Sooner the petitioners got knowledge they along with witnesses went at the site, whereupon, workers of respondents variously armed came at the spot and extended threats. Petitioners asked the respondents to vacate the property but they keep on possessing the same without any lawful authority. On receipt of complaint, the learned Additional Sessions Judge, Burewala recorded cursory evidence of the petitioners, summoned the respondents and on conclusion of trial vide impugned judgment dated 14.12.2013 dismissed the private complaint holding that "All this reflect that dispute regarding the possession of the property in question is between 02 individuals and neither any allegation nor any proof has come on the record that accused belong to land mafia/Qabza Group or property grabbers, hence Sec.03 of Illegal Dispossession Act does not attract in this case."

1. I have heard the arguments of learned counsel for the parties at a considerable length and perused the entire available record with their assistance in the light of respective case law on the subject.

2. Section 3 of the Illegal Dispossession Act, 2005, which in fact is the controlling clause, is reproduced here under:--

"(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.

(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of Section 544 of the Code."

As shall be seen from the above reproduced section, the basic ingredient to invoke the provisions of Illegal Dispossession Act, 2005 would be that accused must enter into or upon any property without having any lawful authority to do so and with intention of dispossession of or grabbing, controlling or occupying the property from the owner or occupier thereof. In the light of above quoted paragraph from the complaint itself, one thing is quite obvious that

respondents did not forcibly enter into the disputed property, rather admittedly the possession of the disputed property was handed over to the respondents by the petitioners themselves voluntarily, whereas, to bring a case into the pail of Illegal Dispossession Act, 2005, all the ingredients must co-exist. In the presence of specific consent by the petitioners in handing over possession of the disputed property to the respondents, to get the said property subsequently vacated, the petitioner should adopt procedure provided for ejectment or vacation of the property under other relevant laws, but not through proceedings under Illegal Dispossession Act, 2005.

1. For what has been discussed above, to maintain a complaint under Illegal Dispossession Act, it must contain the basic ingredients i.e. the accused must enter into the property and dispossess the owner/occupant, without having any lawful authority to do so, but when a person has been, authorized to use the said property then the owner/landlord who himself delivered possession of the property in a lawful manner, cannot seek the shelter under Illegal Dispossession Act, 2005, as it would in fact tantamount to declare other relevant laws redundant and the petitioners cannot be allowed to circumvent other lawful process under the garb of a complaint under Illegal Dispossession Act, 2005. The learned trial Court, therefore, committed no illegality, irregularity or jurisdictional defect in dismissing the complaint of the petitioner. This writ petition, therefore, fails and is dismissed.

(R.A.) Petition dismissed.

PLJ 2015 Lahore 4 [Multan Bench Multan]

Present: Muhammad TariqAbbasi, J.

ABDUL GHAFOOR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, RAJANPUR and 3 others--Respondents

W.P. No. 7814 of 2014, heard on 7.7.2014.

Punjab Rented Premises Act, 2009--

----S. 24(a)--Ejectment petition--Failed to comply direction of Rent Tribunal in respect of deposit of rent--Validity--When default in deposit of rent, by petitioner, as directed under provision was proved and admitted on record, there was no other option for rent controller except to pass judgment accept ejectment petition. [P. 7] A

Ch. MuhammadMehmood-ul-Hassan, Advocate for Petitioner.

Qazi Atta Ullah, Advocate for Respondents No. 3 to 4.

Date of hearing: 7.7.2014.

Judgment

By way of this writ petition, the judgments dated 31.1.2013 and 12.4.2014, respectively passed by the learned Special Judge (Rent), Rajanpur and the learned Additional District Judge, Rajanpur have been called in question.

1. Through the above mentioned earlier judgment, the ejectment petition filed by the Respondents No. 3 & 4, against the petitioner, in respect of the shop fully described in the petition has been accepted and eviction of the petitioner from the shop in question has been ordered. Whereas, through the above said other judgment, an appeal preferred by the petitioner, challenging the above mentioned judgment of the learned Special Judge (Rent), Rajanpur has been dismissed.

2. The facts in short are that the Respondents No. 3 & 4 had filed an ejectment petition, against the petitioner, in respect of a shop fully described in the petition. In the said matter, the petitioner appeared and filed application for leave to contest the ejectment petition, which was allowed. The learned Special Judge (Rent) through order dated 25.2.2011 had directed the petitioner to deposit the rent at the rate of Rs.2500/- per month till 10th of each following month, in the Court. The petitioner had failed to comply with the said order, hence the learned Special Judge (Rent) through the judgment dated 31.1.2013 had accepted the ejectment petition, with a direction to the petitioner to vacate the disputed shop within a period of 30 days. Against the said judgment, the petitioner preferred an appeal which for hearing came before the learned Additional District Judge, Rojhan, (Camp at Rajanpur), from where the judgment dated 12.4.2014 was pronounced and the appeal was dismissed.

3. Consequently, the instant writ petition has been preferred, with the contention and the grounds that the judgments of both the learned Courts below being against the record and the law on the subject are not sustainable.

4. The learned counsel for the petitioner has advanced his arguments in the above mentioned lines, whereas the learned counsel appearing on behalf of Respondents No. 3 & 4 has vehemently opposed the petition.

5. Arguments of both the sides have been heard and the record has been perused.

6. The record shows that when leave to contest was granted to the petitioner, the learned Rent Tribunal had passed the order dated 25.2.2011, whereby directed the petitioner to pay the rent of the shop in question at the rate of Rs.2500/- per month, in the Court till 10th of each following month. The said order was as per Section 24 of the Punjab Rented Premises Act, 2009, which empowered the Rent Tribunal to make such like order. The said provision reads as under:--

"Payment of rent and other dues pending proceedings.--(1) If an eviction application is filed, the Rent Tribunal, while granting leave to contest, shall direct the tenant to deposit the rent due from him within a specified time and continue to deposit the same in accordance with the tenancy agreement or as may be directed by the Rent Tribunal in the bank account of the landlord or in the Rent Tribunal till the final order.

(2) If there is a dispute as the amount of rent due or rate of rent, the Rent Tribunal shall tentatively determine the dispute and pass the order for deposit of the rent in terms of sub-section(1).

(3) In case the tenant has not paid a utility bill, the Rent Tribunal shall direct the tenant to pay the utility bill.

(4) If a tenant fails to comply with a direction or order of the Rent Tribunal, the Rent Tribunal shall forthwith pass the final order."

1. A plain reading of the above mentioned section, clearly indicates that the Rent tribunal not only has a power to pass an order directing the tenant for deposit s of the rent due, within a specified time and continue to deposit the same, in the Bank account of the landlord or in the Rent Tribunal, till the final order is passed in the ejectment petition, but if tenant fails to comply with the above mentioned direction to forthwith pass the final order. Reliance in this regard may be placed upon the judgments titled "Javed Masih and others vs. Additional District Judge, Lahore and others" (2010 SCMR 795). "Muhammad Arshad Khokhar vs. Mrs. Zohra Khanum and others" (2010 SCMR 1071), "Muhammad Naseer vs. Sajid Hussain" (2009 SCMR 784). "Waheed Ullah vs. Mst. Rehana Nasim and others" (2004 SCMR 1568), "Muhammad Nazir vs. Saeed Subhani" (2002 SCMR 1540). "Muhammad Ashraf vs. Qamar Sultana(PLD 2003

Supreme Court 228). "Amin and others vs. Hafiz Ghulam Muhammad and others" (PLD 2006 Supreme Court 549).

1. In the situation in hand, admittedly, the petitioner has failed to comply with the above mentioned direction, made by the learned Rent Tribunal, towards the above said deposit of the rent, in the above stated manner. Even today, the learned counsel for the petitioner has admitted that in consequence of the above mentioned direction, till date, the petitioner has not deposited any amount.

2. Sub-section (4) of Section 24 above is mandatory. When default in deposit of the rent, by the petitioner, as directed under the above mentioned provision was proved and admitted on the record, there was no other option for the Rent Controller except to pass the judgment dated 31.1.2013 and accept the ejectment petition.

3. As the above mentioned judgment pronounced by the learned Rent Tribunal was demand of the situation, as well as the law, hence the learned Appellate Court had rightly decided the appeal and dismissed it through the judgment dated 12.4.2014.

4. The concurrent judgments, passed by the two learned Courts below did not suffer from any legal infirmity or defect, hence warrant no interference by this Court in constitutional jurisdiction.

5. Resultantly, the writ petition in hand being devoid of any force and merit is dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 7[Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

AMIR SHAHZAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others--Respondents

W.P. No. 9462 of 2014, decided on 9.7.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----Scope of--It is a settled principle of law that purpose of enacting special law regarding family disputes is to advance justice and to avoid technicalities which are hindrance in providing ultimate justice to parties. [P. 11] A

Family Courts Act, 1964 (XXXV of 1964)--

----Preamble--W.P. Family Courts Act, 1964 was promulgated for expeditious settlement and disposal of disputes relating to marriages and other family affairs and special procedure was provided to achieve such object and, therefore, legislature, in its wisdom, excluded application of Qanun-e-Shahadat Order, 1984. [P. 11] B

Family Courts Act, 1964 (XXXV of 1964)--

----Scope--Purpose of enacting Family Courts Act, 1964 is to frustrate technicalities for purpose of justice between parties in shortest possible manner. [P. 11] C

Family Courts Act, 1964 (XXXV of 1964)--

----S. 17 & Scope--Applicability of provision of CPC and Qanun-e-Shahadat Order in family cases--Family Courts Act, 1964 has done is that it has changed forum, altered method of trial and empowered Court to grant better reliefs--Provisions of CPC, as well as Q.S.O., are not applicable in strict senso to proceedings before Family Court by virtue of Section 17 of Act, 1964--Family Court has to regulate its own proceedings in accordance with provisions of Act, 1964; and in doing so it has to proceed on premises that every procedure is permissible unless a clear prohibition is found in law--Therefore, a mere fact that a party did not formally prove a document is of no legal consequence. [P. 11] D

Dowry--

----List of dowry article--Appreciation of evidence--Solitary statement of wife is sufficient to prove claim of dowry articles--Notion is misconceived that wife while making claim for dowry articles was required to prove case in terms of requirements of Qanun-e-Shahadat Order, 1984-- Family Courts Act, 1964 is a special law and provisions of Qanun-e-Shahadat Order, 1984 have been excluded through S. 17 of Act, 1964. [P. 12] E

Concurrent Findings--

----Constitutional jurisdiction-- Courts below have given concurrent findings of fact against petitioner, therefore, High Court, in its constitutional jurisdiction, should not interfere with findings of fact recorded by both Courts below. [P. 12] F

Constitutional ofPakistan, 1973--

----Art. 199--Contitutional jurisdiction--It is settled proposition of law that extra-ordinary constitutional jurisdiction of High Court could not be invoked unless order of sub-ordinate Court was illegal, perverse or defective in terms of exercise of jurisdiction--Fact that through an evidence one could each to a different conclusion was no ground for invocation of extra-ordinary constitutional jurisdiction. [P. 12] G

Family Courts Rules, 1965--

----R. 22--Family Courts Act, 1964, S. 14--Time required for obtaining certified copies--Sufficient cause extend period--Appeal for extension of time--Validity--Rule 22 of Family Court Rules, 1965, provides that an appeal under Section 14 of Act, 1964 shall be preferred within 30 days of passing of decree or a decision excluding time required for obtaining certified copies--Although it is provided in proviso to Rule 22 of Family Court Rules, 1965 that Appellate Court may for sufficient cause extend period--But there is nothing on record to suggest that any application was filed alongwith appeal for an extension of time nor any such ground has been taken in memo of appeal as well as in grounds of instant petition. [P. 12] H

Mr. M.Usman Tariq Butt, Advocate for Petitioner.

Date of hearing: 9.7.2014.

Order

Through this constitutional petition, the petitioner has challenged the judgment and decree dated 26.5.2012 passed by the learned Judge Family Court, Multan, and the judgment and decree dated 31.3.2014 passed by the learned Additional District Judge, Multan.

1. The facts of the case are that Respondent No. 3 filed a suit for dissolution of marriage, recovery of dower, recovery of dowry articles, recovery of maintenance allowance and recovery of gold ornaments against the petitioner. The petitioner being the defendant filed a contesting written statement and upon divergent pleadings of the parties the following issues were framed:--

2. Whether the suit is not maintainable in its present form? OPD

3. Whether this Court lacks jurisdiction to entertain the suit? OPD

4. Whether the plaintiff has not come to the Court with clean hands? OPD

5. Whether the plaintiff was entitled to maintenance allowance, if yes, at what rate and for what period? OPP

6. Whether the plaintiff was given dowry articles as detained in the plaint and it was still in defendant possession? OPP

7. Whether the plaintiffs 08 Tola golden ornaments were outstanding? OPP

8. Relief.

9. The learned trial Court after giving its elaborate findings on all the issues granted the following relief through judgment and decree dated 26.5.2012:

"In the light of above said discussion, suit for plaintiffs is partially decreed against the defendant with the observation that plaintiff is entitled to recover dowry articles mentioned in the list Ex.P-5 except golden ornaments mentioned at Serial No. 1 to 13 or in lieu of their price Rs.3,50,000/-. The suit of the plaintiff to the extent of maintenance allowance and gold ornaments weighing 08 tolas is hereby dismissed. It is pertinent to mention here that marriage of the parties has already been dissolved vide order dated 26.3.2010 and consequently plaintiff has to restore the dower. Decree sheet be drawn. No order as to costs. File be consigned to the record room after its due completion."

1. Aggrieved by the judgment and decree dated 26.5.2012 the petitioner and Respondent No. 3 filed appeals before the learned Additional District Judge, Multan, and through a consolidated judgment and decree dated 31.3.2014 the appeals filed by Respondent No. 3 as well as by the petitioner were dismissed. Hence, this writ petition.

2. Learned counsel for the petitioner argued that the impugned judgments and decrees dated 26.5.2012 and 31.3.2014 passed by both the Courts below are illegal and against law and facts. It is further argued that both the Courts below have erred in law while passing the impugned judgments and decrees to the extent of grant of dowry articles to the tune of Rs.3,50,000/- is a result of misreading and non-reading of evidence.

3. I have considered the arguments advanced by learned counsel for the petitioner.

4. It is a settled principle of law that purpose of enacting j the special law regarding the family disputes is to advance justice and to avoid technicalities which are hindrance in providing ultimate justice to the parties. It is pertinent to mention here that West Pakistan Family Courts Act, 1964 was promulgated for the expeditious settlement and disposal of disputes relating to marriages and other family affairs and special procedure was provided to achieve this object and therefore, the legislature, in its wisdom, excluded the application of Qanun-e-Shahadat Order, 1984.

Section 17 of the Family Courts Act, 1964 is reproduced below:--

"17. Provisions of Evidence Act and Code of Civil Procedure not to apply.--(1) Save as otherwise expressly provided by or under this Act, the provisions of the [Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984)] and the Code of Civil Procedure, 1908 [except Sections 10 and 11] shall not apply to proceedings before any Family Court, [in respect of Part I of Schedule]

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."

1. The purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act, 1964 has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better reliefs. The provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat Order, 1984 are not applicable in stricto senso to proceedings before the Family Court by virtue of Section 17 of the Act, 1964. Family Court has to regulate its own proceedings in accordance with the provisions of the Act, 1964; and in doing so it has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. Therefore, a mere fact that a party did not formally prove a document is of no legal consequence.

It is observed that the evidence adduced before the Family Court cannot be evaluated and appraised in a manner as it is appreciated in the cases presented under Civil Procedure Code.

1. Respondent No. 3 had produced her list of dowry articles as Ex.P-5 which has been rightly relied upon by the learned Judge Family Court while excluding the gold ornaments mentioned at Serial No. 1 to 13 in the list of dowry articles (Ex.P-5). It has been held in Mst. Shakeela Bibi vs. Mohammad Israr and others (2012 MLD 756) that the solitary statement of wife is sufficient to prove the claim of dowry articles. It was further held that this notion is misconceived that the wife while making the claim for dowry articles was required to prove the case in terms of requirements of Qanun-e-Shahadat Order, 1984. West Pakistan Family Courts Act, 1964 is a special law and provisions of Qanun-e-Shahadat Order, 1984 have been excluded through Section 17 of the Act, 1964.

2. Both the Courts below have given concurrent findings of fact against the petitioner therefore, this Court, in its constitutional jurisdiction, should not interfere with the findings of fact recorded by both the Courts below.

It is settled proposition of law that extra-ordinary constitutional jurisdiction of this Court could not be invoked unless the order of subordinate Court was illegal, perverse or defective in terms of exercise of jurisdiction. Fact that through an evidence one could each to a different conclusion was no ground for invocation of extra-ordinary constitutional jurisdiction.

1. Before parting with this order, it is observed that even the appeal filed by the petitioner before the learned Additional District Judge, Multan, was barred by time as the petitioner against the judgment and decree passed by the learned Judge Family Court dated 26.5.2012 filed appeal on 3.1.2013.

Rule 22 of West Pakistan Family Court Rules, 1965, provides that an appeal under Section 14 of the Act, 1964 shall be preferred within 30 days of the passing of the decree or a decision excluding the time required for obtaining the certified copies. Although it is provided in proviso to Rule 22 of West Pakistan Family Court Rules, 1965 that the Appellate Court may for sufficient cause extend the period. But there is nothing on record to suggest that any application was filed alongwith appeal for an extension of time nor any such ground has been taken in the memo of appeal as well as in the grounds of the instant petition.

1. For what has been, discussed above, this writ petition is dismissed.

(R.A.) Petition dismissed.

PLJ 2015 Lahore 13[Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

AMIR MEHMOOD--Petitioner

versus

STATE and 4 others--Respondents

W.P. No. 14424 of 2013, decided on 10.6.2014.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 195(1)(c), 476(1) & 561-A--Quashing of qalandra and proceedings--Proceedings were pending before civil judge but Civil Court had not lodged any complaint--Question of--When no complaint was made by Court, was police competent to file qalandra--Determination--It is also an admitted fact that complainant was neither "Court concerned" nor "party in proceedings" and after filing of complaint by SHO petitioner was summoned to stand trial by magistrate--Filing of complaint and summoning of petitioner by magistrate respectively have defeated provisions of Section 195(1)(c) of Cr.P.C.--Proceedings on civil side were pending and Civil Court after recording of evidence of both parties will determine genuineness or otherwise of claim of petitioner and documents appended therewith--Proceedings were quashed. [Pp. 15 & 16] A

Rana Asif Saeed, Advocate for Petitioner.

Mr.Mazhar Jamil Qureshi, AAG for Respondents.

Date of hearing: 10.6.2014.

Order

Petitioner, Amir Mehmood, has called in question the legality of complaint filed by Respondent No. 3 against the petitioner and Akhtar Ali proforma respondent under Sections 468/471 PPC, through this Constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Section 561-A, Cr.P.C., and has sought quashing of the above-said complaint/Qalandra and the proceedings before the learned Magistrate 1st Class, Police Station City Khanewal, as well.

1. Brief facts relevant for decision of this writ petition are that on 12.09.2012, Respondent No. 4 Tasawar Hussain filed a petition under Section 22-A, 22-B. Cr.P.C. before the learned Justice of Peace, Khanewal for registration of case against the petitioner and Akhtar Ali proforma respondent alleging therein that he is the owner in possession of agricultural land situated in Chak No. 168/10-R Tehsil and District Khanwal which is being used for agricultural purposes. Amir Mehmood petitioner is residing in the adjacent land of Gharib Town. The petitioner moved an application before the House Building Finance Company Limited, Multan for obtaining loan for her mother Mst. Maqbool Bibi for construction of houses in Gharib Town in the year 2008 and for this purpose, the petitioner and pro-forma respondent had prepared a forged site-plan of Gharib Town and Tasawar City and while tendering those documents filed civil suit titled Amir Mehmood vs. Tasawar Hussain before the learned Civil Judge, Khanewal seeking a path from the property of Respondent No. 4, thus by using forged documents as genuine in the Court committed a cognizable offence. The learned Justice of Peace vide order dated 20.11.2012 found that offence under Section 468/471 PPC is non-cognizable, therefore, the Respondent No. 3 was directed to proceed according to law. In compliance of order of the learned Justice of Peace, the Respondent No. 3 prepared a complaint/Qalandra under Sections 468/471 PPC and submitted the same before the learned Respondent No. 2, who has taken cognizance of the matter and proceedings of the trial are on the way. Hence, this ptetition.

2. The question to be determined by this Court is that when no complaint has been made by the Court concerned; is the police competent to file complaint/Qalandra, if the facts of case attract the provisions of Section 195(1)(c), Cr.P.C.?

3. At the outset, it may be expedient to reproduce the relevant provisions of Section 195(1)(c) and Section 476(1) of Criminal Procedure Code, 1898, which reads below:--

"Section 195:--Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public justice; Prosecution for certain offences relating to documents given in evidence.--(1) No Court shall take cognizance:

(a)………………

(b)……………..

(c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

Section 476:--(1) When any offences referred to in Section 195, sub-section (1) clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII."

The provisions as contained in Section 195(1)(c) contemplate that where an offence appears to have been committed by a party to any proceedings in any Court in respect of a document produced or given in evidence in such proceedings, no Court shall take cognizance except on the complaint in writing of the Court concerned or some other Court to which it is subordinate. The general rule is that any person irrespective of the fact whether he is aggrieved or not and his interest is at stake or otherwise having knowledge about the commission of any offence may set the law in motion but the provisions as contained in Sections 195, Cr.P.C. to 198, Cr.P.C. possess some exceptions to the said general rule from taking cognizance of certain offences unless the functionary concerned institutes a complaint. Section 195 read with Section 476 of Code of Criminal Procedure, 1898 empowers the Courts, other than the criminal Courts also to try the guilt or innocence of persons. This is, therefore, a provision, which deprives the ordinary criminal Courts of their ordinary jurisdiction. In my humble opinion, Section 195(1)(c) of Cr.P.C. is a salutary provision in the law, which prevents a litigant in a civil matter from lodging a criminal complaint regarding alleged manoeuvred documents which are subject matter of civil proceedings. Had it not been so then every litigant would have been exposed to criminal prosecution, who had filed a civil suit based upon a certain documents. Hence, law has provided that such a complaint could only be lodged by the concerned Court, of course only after it reaches to the conclusion that the document in question was forged. I am of the considered view that the bar contained in Section 195(1)(c) of Cr.P.C. would apply to the cases of tampering with the record of a Court as well as to the cases of previously forged documents used as genuine in the Court proceedings.

1. Admittedly according to the averments of complaint/Qalandra, petitioner had used the forged site-plan while annexing with other documents in a civil suit titled Amir Mahmood vs. Tasawar Hussain before the learned Civil Judge, Khanewal. There is no denial to the facts that the proceedings were pending before the learned Civil Judge but the learned Civil Court has not lodged any complaint against the petitioner. It is also an admitted fact that the complainant was neither the "Court concerned" nor "party in the proceedings" and after the filing of complaint by Respondent No.

3/SHO P.S. City Khanewal, petitioner was summoned to stand trial by Respondent No. 2/learned Magistrate 1st Class, Khanewal. Filing of complaint and summoning of petitioner by Respondents No. 3 and 2 respectively have defeated the provisions of Section 195 (1) (c) of the Criminal Procedure Code, 1898. Even otherwise, proceedings on the civil side are pending and the learned Civil Court after recording of evidence of both the parties will determine the genuineness or otherwise of the claim of the petitioner and documents appended therewith.

1. In the light of what has been discussed hereinabove and in view of the provisions as contained in Section 195(1)(c), Cr.P.C., this petition is accepted and the complaint/Qalandra filed by Respondent No. 3 against the petitioner and Akhtar Ali proforma respondent under Sections 468/471 PPC, and as well proceedings before the learned Magistrate 1st Class, Police Station City Khanewal are hereby quashed.

(R.A.) Petition accepted

PLJ 2015 Lahore 16 [Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

Mst. SHAHNAZ ELAHI, etc.--Petitioners

versus

I.G. POLICEPUNJAB, LAHORE etc.--Respondents

W.P. No. 10113 of 2014, decided on 21.7.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suicide death of woman cricket player--Media trial--Mental depression and anguish led to suicide of deceased--Family of deceased was being pressurized by person who were demanding disinterment of grave of deceased to declare suicide death--Challenge to--Not only her dignity was intruded her peace and tranquility of family was disturbed too and had put her to serious danger of being blackmailed--Some persons were using media for their own designs and intentions without any fear regardless of pain and agony suffered by petitioners at their hand--Such sort of blackmailing must be uprooted and Courts have to safeguard fundamental rights of society without being biased in performance of its sacred duties--Police department was directed to remain within four corners of law and not to cause undue harassment by exerting pressure to sign and thumb mark application for disinterment of grave of deceased against their wishes and do not hurt sentiments of parents on behest of police and not to become a tool in hands of media as no law or religion enforces any one to do anything which she does not want to do--Petition was disposed of. [P. 18] A, B & C

Ch. Muhammad Shafiq & Syed Athar Hassan Shah Bokhari, Advocates for Petitioners.

Date of hearing: 21.7.2014.

Order

Contents that Mst. Haleema Rafique (deceased) was a good player of Cricket and at district level she was being admired and in the year 2013, Mst. Hina Ghafoor, Saba Ghafoor, Kiran Irshad, Seema Javed and other female students came to persuade Mst. Haleema Rafique (deceased) to play Cricket Match at Bahawalpur for Multan Cricket Club. The deceased, in the year 2013, went to play match at Bahawalpur. Unexpectedly, the members of team alongwith the deceased were seen disclosing the unethical and immoral behavior of the Multan Cricket Club in a "talk show" telecasted by Express TV and these students disclosed some astonishing happenings but the deceased remained silent in this respect. She did not point out any person. After that, some people had telecasted the programme for their own benefit under specific agendas and criticized the characters of some particular persons since then deceased was under havoc, stress and mental turmoil. On 10.07.2014, the deceased was summoned by the District & Sessions Judge, Multan in a case in which she was alien to that case. On 13.07.2014, at 5 p.m., the petitioners suddenly came to know about the attempt of suicide committed by the deceased who drank acid in the washroom, the petitioner took her to hospital but the deceased could not fight for life and died in the Nishtar Hospital. Now some media persons want to use the deceased for their own interest and agenda and demanding the disinterment by giving 'Breaking News' on air in different angles. It is further contended that Respondent No. 2 at the behest of Respondents No. 8 to 10 is repeatedly summoning the petitioners to sign and thumb mark the application for disinterment of the grave of Mst. Haleema Rafique (deceased) against their wishes.

1. Heard and perused the file.

2. It is noteworthy that the deceased was a cricket player and the media has also extended enough coverage but the circumstances under the surface, led the mental depression and anguish and resultantly led to the suicide of deceased Mst. Haleema Rafique. Prima facie, this is a media involved case as the Respondents No. 8 to 10 are the media figures. It is very unfortunate in our society that the self interest comes first of all and the instant case is no exception also. The family of deceased is being pressurized by persons who are needlessly demanding the disinterment of the grave of deceased to declare the suicidal death of Mst. Haleema Rafique a 'murder' and Respondents No. 1 to 7 at the instigation of Respondents No. 8 to 10 began to harass the petitioners and family; and demanded to declare the death of the deceased a 'murder otherwise they will start their media trial and the exhumation will be conducted under the supervision of the police but the petitioners are not willing to exhume the grave of Mst. Haleema Rafique, as they tune it as an insult and the specific person will take benefit in this way. I must say it is a media-hype, we are living in democratic republic where the Constitution is Supreme and the Judiciary, symbol of justice and rule of law in the country, is custodian of the sanctity of a person's rights conferred upon the constitution under Articles 10, 14 and 19. Article 14 of the Constitution of Islamic Republic of Pakistan guarantees to protect dignity of man & the privacy of home which shall be inviolable subject to law. As per Mst. Haleema Rafique (now dead) her privacy was intruded by the media. Dignity of man is not only secured by Constitution of Pakistan but also great value has been attached to the dignity of man under Islam, too. Not only her dignity was intruded her peace & tranquility of family was disturbed too & had put her to serious danger of being blackmailed. Now Respondents No. 8 to 10 are after the dignity of petitioners. They are not safe from invasion & illegal intrusion. It is repulsive that some persons are using media for their own designs and intentions without any fear regardless of pain and agony suffered by the petitioners at their hands. This sort of practice (blackmailing) must be uprooted and the Courts have to safeguard the fundamental rights of the society without being biased in performance of its sacred duties (Dispensation of justice).

3. Be that as it may, Respondents No. 1 to 7 are directed to remain within the four corners of law and not to cause undue harassment to the petitioners by exerting pressure upon them to sign and thumb mark the application for disinterment of the grave of Mst. Haleema Rafique deceased against their wishes and do not hurt the sentiments of parents/petitioners on the behest of Respondents No. 8 to 10 and not to become a tool in the hands of the media as no law or religion enforces anyone to do any thing which he/she does not want to do.

4. With this direction, the instant petition is disposed of.

(R.A.) Petition disposed of

PLJ 2015 Lahore 19 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD YAQOOB DOGAR--Petitioner

versus

Mst. NIAZI etc.--Respondents

Civil Revision No. 288 of 2014, decided on 12.3.2014.

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

----O. XXXIX, Rr. 1 & 2--Transfer of Property Act, 1882, S. 53-A--Temporary injunction, dismissal of--Suit for possession through agreement to sell--No proof of payment to alleged vendor--Question of availability of independent advice--Possession of land was not denied--Strong prima facie--Balance of convenience--Validity--Where and when he allegedly paid a huge consideration of amount to deceased, factum of pasting of photo of a fake lady on agreement to sell, showing her to be late, raises eyebrows, casting grave doubts on claim of plaintiff, especially when he is closely related to deceased--Mere possession would not entitle a plaintiff to grant of interim injunction--Possession of a person over a piece of land is one thing, and his possession under an agreement to sell is quite another--They did not commit any material irregularity in exercise of their jurisdiction--They adverted to each and every aspect of case and they made an appraisal of evidence, albeit tentatively, while coming to conclusion to deny relief of temporary injunction to petitioner. [Pp. 22 & 23] A, C & F

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

----O. XXXIX, Rr. 1 & 2--Relief of ad-interim injunction--It is well-established law that while granting temporary injunction, Courts of law would also take into consideration whether petitioner has approached Court with clean hands or not--In other words, they would look to conduct of a party, and if same is not above board, grant of relief of ad interim injunction may be refused on such sole ground. [P. 22] B

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

----S. 52 & O.XXXIX, Rr. 1 & 2--Agreement to sell--Grant of temporary injunction--Doctrine of lis pen dense embodied in Section 52, CPC is there to safeguard rights and interests, if any, of petitioner/ plaintiff--Petitioner would not suffer any irreparable loss in event of refusal of an injunction. [P. 23] D

Injunction--

----Discretionary jurisdiction--Unless all ingredients, namely, prima facie case, balance of convenience or irreparable loss are there and they concur in favour of a party, an injunction is not to be granted in routine. [P. 23] E

Islamic Share--

----Dispute among son and daughters of deceased--Protection was afforded to daughters to extent of their islamic shares in properties bequeathed by deceased owner and interim injunction was granted to protect and safeguard their shares. [P. 23] G

Sh.Dilawar Hussain, Advocate for Petitioner.

Date of hearing: 12.3.2014.

Order

This civil revision is directed against the orders dated 25.4.2013 and 13.2.2014 passed by the learned Civil Judge, Multan and an Additional District Judge, Multan, respectively, whereby an application for the grant of temporary injunction moved by the petitioner was dismissed and an appeal preferred thereagainst also met the same fate.

1. Concisely put, the facts are that the petitioner instituted a suit for possession through specific performance, contending therein that he entered into an agreement to sell dated 21.5.2009 with late Mst. Niazi, predecessor-in-interest of the respondents/defendants. It was further averred in the plaint that the deceased lady had agreed to sell land measuring 5 kanals 5 marlas bearing Khewat No. 147/148 Khatuni No. 374, situated at Village Dumra Tehsil and District Multan for a consideration of Rs.5,25,000/- and that out of the total sale consideration, the petitioner/plaintiff had paid an amount of Rs.4,00,000/- as earnest money, while the balance of the sale consideration amounting to Rs. 1,25,000/- was to be paid by 21.11.2009. However, the aforementioned vendor fell ill and passed away in the year 2010, due to which the suit land could not be transferred to the petitioner/plaintiff.

2. It goes without saying that the respondents/defendants entered appearance, filed written statement, controverting the pleas of the plaintiff both on the factual and legal plane. It was strongly denied by them that late Mst. Niazi ever entered into the agreement to sell with the plaintiff. It was maintained by them that the alleged agreement to sell is a fake, forged and fabricated document, which is also evident from the fact that it bears/carries the snap/photo of a lady, who is not the mother of the defendants. In other words, the pasting of the photo of a stranger on the agreement in question indicating her to be late Mst. Niazi negates the assertion of the plaintiff that she ever made any agreement with the plaintiff/petitioner. It was pointed out that the petitioner/ plaintiff is a nephew of late Mst. Niazi, and they wondered that if he could go to the extent of affixing the photo of a stranger to the agreement to sell, what would be the veracity of his claim.

3. Along with the plaint, the petitioner had also moved an application for the grant of temporary injunction. It was prayed that the defendants/respondents be restrained from alienating the suit land and they be ordered not to interfere with the possession of the petitioner over the suit land.

4. The learned Civil Judge seized with the suit dismissed the application of the petitioner/plaintiff for the grant of ad interim relief vide order dated 25.4.2013. It was challenged by filing an appeal before the learned District Judge, Multan. Ultimately, the appeal filed by the petitioner/plaintiff was dismissed by an Additional District Judge, Multan vide order dated 13.2.2014. Hence this revision petition.

5. Learned counsel for the petitioner contends that both the impugned orders passed by the learned Courts below suffer from misreading and non-reading of the pleadings of the parties to the suit as also the documents annexed thereto. He argues that the learned Appellate Court passed the impugned order in a slipshod and mechanical manner. He stresses that since the possession of the petitioner/plaintiff regarding the suit land has not been denied by the defendants/respondents, it is a proof enough that the possession of the petitioner originates in and bears relation to the agreement to sell. At any rate, the case of the petitioner is covered by the provisions contained in Section 53-A of the Transfer of Property Act, 1882. He also makes the argument that the petitioner has a strong Prima facie case and that balance of convenience also lies in his favour. He concludes his arguments by making the submissions that both the Courts below did not exercise the jurisdiction vested in them and/or that they committed material irregularity in exercising the same. In support of his submissions he places reliance on the judgment reported as "Mst. Saeeda Sultana and another v. Mst. Roshan Ara and others"(2002 SCMR 1345).

6. I have heard the learned counsel for the petitioner at length and perused the record annexed to the revision petition with his assistance, besides going through the judgment cited at the bar.

7. From the resume of the facts set out hereinabove, it is crystal clear that the petitioner is laying claim to the suit, land on the basis of an agreement to sell, which he allegedly entered into with late Mst. Niazi, predecessor-in-interest of the respondents/defendants. At the moment, there is no proof that any payment was made to the alleged vendor through. Cheque, Pay Order, Draft or T.T. None of the defendants are stated to be round the corner when their mother is alleged to have made an agreement with the plaintiff. Therefore, the question of the availability of an independent advice to the late Mst. Niazi is one of the factors which seems to have influenced the orders passed by the learned Courts below. The petitioner/plaintiff has still a long way to go to prove the transaction in question, in addition to the execution of the agreement to sell in question. He has also to adduce evidence as to how where and when he allegedly paid a huge consideration of Rs.4,00,000/- to late. Mst. Niazi. Above all, the factum of pasting of the photo of a fake lady on the agreement to sell, showing her to be late Mst. Niazi, raises eyebrows, casting grave doubts on the claim of the plaintiff, especially when he is closely related to the deceased. It is well-established law that while granting temporary injunction, the Courts of law would also take into consideration whether the petitioner/plaintiff has approached the Court with clean hands or not. In other words, they would look to the conduct of a party, and if the same is not above board, the grant of relief of ad interim injunction may be refused on this sole ground. In this respect, reference may be made to the judgment of the apex Court reported as "Irshad Hussain v. Province of Punjab and others" (PLD 2003 SC 344). As for the claim of the petitioner that he has been in possession of the suit land and he is entitled to the grant of temporary injunction on this score alone, I am attempted to refer to the judgment of the Supreme Court reported as "Muhammad Ali v. Mehnga Khan" (2004 SCMR 1111) in which it was authoritatively held that mere possession would not entitle a plaintiff to the grant of interim injunction. Furthermore, the possession of a person over a piece of land is one thing, and his possession under an agreement to sell is quite another. It has been disputed by the respondents/defendants that possession was ever delivered to the plaintiff under the alleged agreement to sell. This aspect of the controversy cannot be resolved even while making tentative assessment of the material produced by the parties. Even otherwise, the doctrine of lispen dense embodied in Section 52, CPC is there to safeguard the rights and interests, if any, of the petitioner/plaintiff. For the present, it may be observed that the petitioner would not suffer any irreparable loss in the event of refusal of an injunction. On the other hand, respondents/defendants would be at a disadvantage and they are likely to suffer incalculable loss in the case of granting an injunction by this Court. It has been rightly held by the superior Courts that unless all the ingredients, namely, Prima facie case, balance of convenience or irreparable loss are there and they concur in favour of a party, an injunction is not to be granted in routine. In this case both the Courts exercised their discretionary jurisdiction in accordance with law and I am not persuaded to interfere with the orders passed by them. To me, they did not commit any material irregularity in the exercise of their jurisdiction. They adverted to each and every aspect of the case and they made an appraisal of the evidence, albeit tentatively, while coming to the conclusion to deny the relief of temporary injunction to the petitioner.

8. The judgment cited by the learned counsel for the petitioner and reported as "Mst. Saeeda Sultana and another v. Mst. Roshan Ara and others" {2002 SCMR 1345} (supra) is clearly distinguishable. It proceeds on its own facts. In that case, there was a dispute among son and four daughters of a deceased. The son was making claim on the basis of a gift-deed, while the daughters who had instituted a suit for declaration had maintained that the same was invalid. Against this background, protection was afforded to the daughters to the extent of their Islamic shares in the properties bequeathed by the deceased owner and interim injunction was granted to protect and safeguard their shares. On the face of it, this case has no application to the facts of the instant case. The reliance of the learned counsel for the petitioner on the aforesaid judgment handed down by the apex Court is not apposite, to say the least.

9. The upshot of the above discussion is that this revision petition being without merit is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 24 (DB) [Multan Bench Multan]

Present: Shahid Waheed and Shah Khawar, JJ.

MUHAMMAD SALEEM--Petitioner

versus

GOVERNMENT OF PUNJAB through its Chief Secretary and 6 others--Respondents

W.P. No. 14949 of 2012, decided on 15.7.2014.

Constitution of Pakistan, 1973--

----Art. 199--Promotion Policy Rules, 2010, R. 9(iv)--Promotion--Deferment was raising on creditability and unblemished career--Policy was challenged--Validity--Superior Courts--Civil servant against whom a departmental inquiry or criminal proceedings were pending was not an outcast for purpose of consideration of his case for promotion and there was no bar on his promotion--Any policy of government including Promotion Policy 2002 of Government of Punjab cannot come in its way and has become redundant. [P. 27] A & B

Mr. Muhammad AliSiddiqui, Advocate for Petitioner.

Mr. M. Aurangzeb Khan, A.A.G. along with Saleem Akhtar Qureshi, District Officer Co-Operative Multan for Respondents No. 1, 2 and 3.

Date of hearing: 25.6.2014.

Order

In the instant writ petition, the petitioner being a civil servant has challenged the vires of Sub-Rule (IV) of Rule 9 of the Promotion Policy, 2010 and decision of Provincial Selection Board with respect to the deferment of the petitioner for promotion as same being Un-Islamic, Un-Constitutional, discriminatory and against the fundamental rights of the petitioner.

1. The question of law to be determined by this Court is reproduced is under:

"Whether promotion of the civil servant could be deferred which he otherwise entitled to, on a sole ground that a case or inquiry is pending against him in which he is yet to be proven guilty?

1. Brief facts of the case are that the petitioner was appointed on 07.04.1984 as Assistant Registrar (BS-16) through Punjab Public Service Commission.

2. The promotion of the petitioner in BS-19 has been due since 04.12.2011 on the retirement of one Fayyaz-ul-Hassan Farooqi senior to him. However, he has not been promoted since that date.

3. On 1.3.2012, vide Notification No. SO(E)7-3/96(P-III), a final seniority list was issued by the Secretary Co-Operatives whereby, the petitioner was placed at Serial No. 1 and Respondents No. 4 to 7 were placed at Serial Nos. 2, 3, 4 and 5 respectively.

4. On 24.07.2012, meeting of the Provincial Selection Board-I was held whereby, Respondents No. 4 to 7 were promoted to BS-19 and the promotion of the petitioner was deferred.

5. Leaned counsel for the petitioner contends that the promotion of the petitioner was deferred, which he otherwise is entitled to, as per the impugned rule. Further submits that the petitioner has a spotless career and is at verge of his retirement. Till today, not an FIR as well as not a single inquiry has been registered and initiated against him; hence his deferment is raising questions on his creditability and unblemished career, that requires kind interference by this Hon'ble Court. Reliance is placed on Captain Sarfraz Ahmdd Mufti vs. Government of the Punjab and others (1991 SCMR 163), Maj. Ziaul Hassan, Home Secretary and others vs. Mrs. Naseem Chaudhry (2000 SCMR 645), Sh. Muhammad Riaz vs. Government of Punjab [(2003 PLC (CS) 1496] and Muhammad Afzal Khan vs. Government of Punjab through Secretary to Government of the Punjab, C&W Department and another [(2009 PLC (CS) 40)].

6. Report and parawise comments were filed by the respondents. One of the preliminary objections was that the matter relates with the terms and conditions of promotion and the petitioner has not availed his remedy by way of filing appeal before the Punjab Service Tribunal, hence Constitutional petition is not maintainable.

7. On facts, Respondents No. 1 & 2 also controverted the prayer made by the petitioner by contending that the promotion case of the petitioner was placed before the Punjab Selection Board, but the Board deferred the same due to the reason that an FIR No. 18/2010 Police Station Anti-Corruption Establishment, Multan is pending against the petitioner, and the petition is hit by the Promotion Policy of 2010. However, a post in BS-19 has been reserved for the petitioner, subject to his exoneration from the above said case and will be granted promotion from the date when his juniors were promoted.

8. I have given anxious consideration to the arguments advance by learned counsel for the petitioner and the learned AAG, Punjab.

9. Before arriving at a conclusion that the Policy under challenge is sustainable under the law or not, it will be proper to understand spirit of Article 8 of the Constitution of Pakistan 1973; which is re-produced herein under:--

"8. Laws inconsistent with or in derogation of Fundamental Rights to be void.--(1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void."

1. Admittedly in the constitution, the Superior Courts have been mandated to ascertain either any law is inconsistent with the rights conferred by the Constitution i.e. Fundamental Rights. In Tariq Cotton Mills Ltd. and another vs. Joint Registrar, Joint Stock Companies and another (1989 CLC 2013), it is held that the State is prohibited to make any law which curtails or take away any Fundamental Right and any law so made shall to the extent of inconsistency with such right, is to be void. The same principal of law has been enunciated in Sharaf Faridi vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404), it was held that limitation has been placed on the Legislature not to curtail the Fundamental Rights or abridge them by any law.

2. Question of law raised by the petitioner is answered in following terms:--

(i) Any judgment passed by the Hon'ble Supreme Court of Pakistan, in which a question of law has been determined, is binding on all the Courts subordinate to the Apex Court, as contemplated in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.

(ii) The petition in hand has been filed on the touch stone of above quoted judgments of the Hon'ble Supreme Court of Pakistan.

(iii) In the case of Maj Zail-ul-Hassan, Home Secretary vs. Mrs. Naseem Ch. (2000 SCMR 645), the Hon'ble Supreme Court has held that:

"We are afraid that the mere fact that some disciplinary proceedings are pending against the respondent is not a sufficient ground to disregard the Order passed by this Court. However, we may clarify that promotion as DSP will not debar the petitioner to continue with the disciplinary proceedings against the respondent if any, justly, fairly and in accordance with law."

(iv) In case titled as Captain Sarfraz Ahmad Mufti vs. Government of Punjab & others ((sic) SCMR 1637) the Hon'ble Supreme Court upheld judgment of the High Court in which the High Court had directed departmental authorities that case of civil servant be placed before Promotion Board. The High Court had referred to certain Policy letters of the Government under which respondent civil servant's case for promotion merited consideration, but he was illegally ignored.

(v) In the same manner, in case of Sh. Muhammad Riaz. vs. Govt. of Punjab through Secretary Communication and Works and another [(2003 PLC (C.S) 1496)] it was held that "withholding of promotion is a penalty and therefore refused to issue a formal notification of the promotion of the petitioner, after he had been recommended by the Provincial Selection Board, which was duly approved by the Competent Authority, was illegal and arbitrary in as much as that it was withheld on the ground of an anticipated departmental inquiry.

1. A principle of law has been enunciated by the Superior Courts. The nutshell of the same is that a civil servant against whom a departmental inquiry or criminal proceedings are pending is not an outcast for the purpose of consideration of his case for promotion and there is no bar on his promotion.

2. The above quoted judgments, in which question of law has been settled, have attained finality and force of law. Any policy of the Government including the Promotion Policy 2002 of the Government of the Punjab cannot come in its way and has become redundant.

3. For what has been discussed above, the instant writ petition is allowed. Sub Rule (iv) of Rule 9 of the Promotion Policy, 2002 of the Government of Punjab is hereby declared Un-Constitutional, against the spirit of Article 8 of the Constitution and against the principles of law enunciated by the Hon'ble Superior Courts of Pakistan. The respondent Department is directed to place the case of the petitioner to the Provincial Promotion Board and his case may be considered for promotion within a period of 30 days.

(R.A.) Petition allowed

PLJ 2015 Lahore 28 [Rawalpindi Bench Rawalpindi]

Present: Shah Khawar, J.

JAVED IQBAL SATTI--Petitioner

versus

JUDICIAL MAGISTRATE TALAGANG, etc.--Respondents

W.P. No. 1443 of 2014, decided on 12.8.2014.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 173, 265-K, 435, 439 & 561-A--Constitutional petition--Role of magistrate in administrative and in judicial capacity--Disagreed with cancellation report and direction S.H.O. to submit report u/S. 173, Cr.P.C.--Opinion of Police Officer--Discharging accused and canceling criminal case does not function as Criminal Court and order of cancellation of criminal case was not amenable to revisional jurisdiction of High Court u/Ss. 435 to 439, Cr.P.C.--Question of maintainability of petition--Validity--Jurisdiction of High Court under Sections 435 to 439, Cr.P.C. is barred in such like cases, but inherent jurisdiction of High Court under Section 561-A, Cr.P.C. can be pressed into service if order of Magistrate is not in accordance with law--Judicial Magistrate while disagreeing with cancellation report of Police has directed SHO to submit report under Section 173, Cr.P.C. after mentioning names of witnesses in relevant column for purposes of trial, contains no illegality--Investigating Officer of case is obliged to file report under Section 173, Cr.P.C. before Court of competent jurisdiction even after placing name of petitioner in Column No. 2 of said report--Moreover, petitioner can invoke provision of Section 265-K, Cr.P.C. before trial Court, if he considers that charge framed against him is groundless and trial Court can decide same in accordance with law. [Pp. 31 & 32] A, B, C & D

Mr. Muhammad Ilyas Siddiqui, Advocate for Petitioner.

Mr. Shahid Mehmood Abbasi, AAG. and Ch. Imtiaz Ahmed Khan, Advocate for Respondents.

Date of hearing: 12.8.2014.

Order

Through the instant writ petition, the petitioner has challenged the vires of order dated 30.4.2014, passed by the learned Additional Sessions Judge, Chakwal, whereby he upheld the order dated 28.02.2014 passed by the learned Judicial Magistrate Section-30, Talagang, whereby the learned Judicial Magistrate disagreed with the cancellation report and SHO was directed to submit report under Section 173 Cr.P.C. after mentioning the names of the witnesses in the relevant column for the purpose of trial within 14 days.

1. Brief facts of the case are that one Mst. Zulekhan Begum widow of Ghulam Shabbir resident of Talagang got lodged FIR No. 128,dated 02.08:2013 offence under Section 365 PPC in Police Station Talagang, District Chakwal contending therein that her son Imtiaz Shabbir was an employee in the Pharmaceutical company of the present petitioner Javed Iqbal Satti. Due to some differences, he left the job and arrived in Talagang. On 11.06.2013, the present petitioner came to Talagang and convinced him to resume his job and took him to Islamabad. Later, the complainant was informed through telephone that an FIR has been lodged against her son Riaz Shabbir. When the complainant inquired, she came to know that the present petitioner allegedly has abducted her son and has been illegally detained in his custody. Firstly, the matter was reported to the Police Station City Talagang, but no FIR was lodged. Finally, she approached DPO Talagang and on his intervention, the instant FIR was registered.

2. On 13.12.2013, the SHO Police Station City Talagang submitted report for cancellation of the instant FIR before the Court of learned Judicial Magistrate Section 30, Talagang by assigning reasons that the allegations levelled in the FIR were ill founded and alleged abductee Ghulam Shabbir was found to have joined M/s. Enterprises Pharmaceutical Company, Raiwind, Lahore and was in self hiding. On this, the Police raided the premises of said Pharmaceutical Company and recovered the alleged abductee.

3. The alleged abductee was presented before the learned Judicial Magistrate Talagang where his statement under Section 164 Cr.P.C. was recorded. In said statement, the alleged abductee supported the contents of FIR and maintained that he had been forcibly detained by the petitioner/accused in a factory situated at Raiwind, Lahore and he was subjected to forced labour. The Police also gave opinion that the statements of management and other staff of the said Pharmaceutical company at Lahore were recorded, according to the same, the petitioner was their regular employee and was drawing monthly salary. On these basis, the SHO concerned recommended for cancellation of FIR which was not agreed upon. The said decision was assailed by way of filing criminal revision before the learned Additional Sessions Judge, Talagang who dismissed the same and upheld the order of the learned Judicial Magistrate, Talagang. Hence, the instant writ petition.

4. The learned counsel for the petitioner contends that both the Courts below have wrongly exercised their jurisdiction while not concurring with the findings of the Police. He has placed reliance on the case law reported in Arif Ali Khan and another vs. The State and 6 others (1993 SCMR 187), Hussain Ahmad vs. Mst. Irshad Bibi and others (1997 SCMR 103), Soofi Abdul Qadir vs. The State and others (2000 P.Cr.L.J 520), Ehsan Ullah vs. Illaqa Magistrate, P.S. Wohwa, District D.G. Khan and 5 others (PLJ 2013 Lahore 612), Nazir Ahmad vs. State and others (PLJ 2013 Lahore 686) & Bahadur and another vs. The State and another (PLD 1985 Supreme Court 62). While seeking guidelines from the above quoted judgments, the learned counsel for the petitioner placed emphasis that jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is available to interfere with the findings of the learned Additional Sessions Judge, as well as the learned Judicial Magistrate Section-30 and further that the inherent jurisdiction of the High Court under Article 199 of the Constitution and 561-A of Cr.P.C. cannot be curtailed. He finally argued that both the judgments of the Courts below may be set-aside and FIR may be cancelled.

5. Conversely, the petition has been vehemently opposed by the learned AAG assisted by the learned counsel for the complainant. They have raised objection on the maintainability of the present writ petition in the light of judgments passed by the Honourable Superior Courts reported in Muhammad Fiaz Khan vs. Ajmer Khan another (2010 SCMR 105), Saddar Din vs. Deputy Inspector-General of Police (Investigation), Capital City Police. Lahore and 6 others (PLD 2009 Lahore 585), Director-General, Anti-Corruption Establishment Lahore and others vs. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401) & Bakht Bedar Ali Shah vs. State and 5 others (PLJ 2012 Lahore 95). They maintained that since the judicial Magistrate has acted in the administrative capacity while disagreeing with the cancellation report of the SHO, hence same cannot be interfered with by this Court in revision jurisdiction. They placed emphasis that the Investigating Officer of the criminal case is not authorized to render any opinion regarding guilt or innocence of an accused person under the relevant statutory provisions contained in Cr.P.C., the Police Order 2002 and the Police Rules 1934. Further contended that the Investigating Officer is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the concerned Magistrate, so that he or the trial Court can then form their own independent opinion. Finally concluded that opinion of Police officer regarding guilt or innocence of an accused person is inadmissible in evidence being irrelevant.

6. I have given anxious consideration to the submissions made by the learned counsel for the parties as well as the learned AAG and have also gone through the judgments referred above.

7. Both the petitioner and the complainant has relied upon the renowned pronouncement made by the Honourable Supreme Court of Pakistan in Bahadur and another vs. The State and another (PLD 1985 Supreme Court 62). In the said celebrated judgment, the Honourable Supreme Court had discussed the role of Magistrate, both in Administrative and in Judicial capacity. Finally, it is concluded that Magistrate seized of the report under Section 173 Cr.P.C., discharging the accused and canceling a criminal case, does not function as criminal Court and order of cancellation of criminal case for that reason is not amenable to the revisional jurisdiction of High Court under Sections 435 to 439 Cr.P.C. The said view has been substantiated by the Honourable Supreme Court of Pakistan in Hussain Ahmad vs. Mst. Irshad Bibi and others (1997 SCMR 1503). It is held that the High Court although cannot press into service, Sections 435 to 439 Cr.P.C., but it can invoke aid of Section 561 Cr.P.C. against such order. So, this is the settled that jurisdiction of High Court under Sections 435 to 439 Cr.P.C. is barred in such like cases, but the inherent jurisdiction of this Court under Section 561-A Cr.P.C. can be pressed into service if the order of the Judicial Magistrate is not in accordance with law.

8. So, far as the instant case is concerned, since the recommendations of the Police have been controverted by the alleged abductee Imtiaz Shabbir by way of recording statement under Section 164 Cr.P.C., fully supporting the prosecution version and maintained that he was allegedly abducted by the present petitioner, needs proper appreciation of evidence both from prosecution and defence side. The Judicial Magistrate Section-30, while disagreeing with the cancellation

report of the Police has directed the SHO concerned to submit the report under Section 173 Cr.P.C. after mentioning the names of the witnesses in the relevant column for the purposes of trial, contains no illegality. The learned Additional Sessions Judge, with a speaking order has rightly upheld the order passed by the learned Judicial Magistrate. The Investigating Officer of the case is obliged to file report under Section 173 Cr.P.C. before the Court of competent jurisdiction even after placing the name of the petitioner in column No. 2 of the said report. This is the learned trial Court which after recording evidence has to determine either the present petitioner is guilty of commission of offence or not? Moreover, the petitioner can invoke the provision of Section 265-K Cr.P.C. before the learned trial Court, if he considers that the charge framed against him is groundless and the learned trial Court can decide the same in accordance with the law and guidelines contained in the judgment of the Honourable Supreme Court of Pakistan reported in case of Director-General, Anti-Corruption Establishment Lahore and others vs. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401).

1. In view of above, no interference is called for by this Court in the findings of learned Additional Sessions Judge as well as the learned Judicial Magistrate Section-30. Consequently, the instant writ petition is, hereby, dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 32 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

SyedNAZAR ABBAS NAQVI--Appellant

versus

Mst. BASHIRAN BIBI (deceased) through Legal Heirs and 4 others--Respondents

F.A.O. No. 8 of 2014, decided on 12.3.2014.

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

----O. XXXIX, Rr. 1 & 2--Suit for specific performance--Application for grant of temporary injunction was dismissed--Oral agreement to sell--Challenge to--Validity--In absence of any proof of making of payment to deceased through cheque(s)/pay order(s)/draft(s) one would have to stretch one's credulity to believe in assertions made by appellant--Possession of plaintiff over suit land appears to be in capacity of a co-sharer--Appellant cannot make capital out of such fact--Mere possession of a person over a piece of land would not entitle him to grant of temporary injunction--Neither balance of convenience lies in favour of appellant nor is he likely to suffer irreparable loss--In absence of any of ingredients, which are a prerequisite for grant of temporary injunction, Courts of law invariable decline to grant relief asked for by plaintiff.

[Pp. 34 & 35] A & B

Mr. MuhammadYounas Sheikh, Advocate for Appellant.

Date of hearing: 12.3.2014.

Order

This appeal is directed against the order dated 21.11.2013 passed by learned Civil Judge, Khanewal, whereby he dismissed the application of the appellant for the grant of temporary injunction moved by him in a suit for specific performance.

1. The facts, in brief, are that the appellant instituted a suit for specific performance, contending therein that Mst. Bashiran Bibi, predecessor-in-interest of the respondents/defendants entered into an agreement to sell with him in respect of land measuring 48 kanals 2 marlas situated at Chak No. 79/10-R (the details whereof have been set out in the plaint) for a consideration of Rs.36,00,000/-. It was further averred in the plaint that out of the total consideration of Rs.36,00,000/- the plaintiff paid an amount of Rs.30,00,000/- as earnest money in the presence of the witnesses while the balance of the sale consideration amounting to Rs.6,00,000/- was to be paid at the time of execution and registration of the sale-deed. It was further maintained by the plaintiff that the agreement to sell was not reduced into writing because of the close relationship between the vendor and the vendee.

2. The defendants entered appearance, filed written statement and vehemently denied all the assertions made by the plaintiff. It was specifically denied by them that their mother ever entered into verbal/oral agreement to sell with the plaintiff. The receipt of the earnest money was denied as well.

3. Along with the plaint, the plaintiff/appellant also moved a miscellaneous application for the grant of temporary injunction. It was specifically prayed by him that the respondents/defendants be restrained from alienating the suit land and from interfering with the possession of the plaintiff over the suit land.

4. As stated above, the learned trial Court seized with the suit dismissed the application moved by the appellant for the grant of temporary injunction vide order dated 21.11.2013, the validity whereof has been assailed through the instant appeal.

5. Learned counsel for the appellant contends that the appellant had a strong prima facie case that balance of convenience also lies in his favour; that if the injunction sought by the appellant is refused, he would suffer irreparable loss; that a huge amount of Rs.30,00,000/- was paid to late Mst. Bashiran Bibi and her legal heirs are bound to transfer the suit land to the appellant; that oral agreement is as good an agreement as the one in writing; that the possession of the plaintiff over the suit land was not denied. In support of his propositions, he has placed reliance on the judgment reported as 'Mrs. Mussarat Shaukat Ali versus Mrs. Safia Khatoon and others' (1994 SCMR 2189).

6. I have heard the learned counsel for the appellant and gone through the documents annexed to the appeal, in addition to perusing the impugned order dated 21.11.2013.

7. It is hard to understand why the appellant paid a huge amount of Rs.30,00,000/-in cash to late Mst. Bashiran Bibi and if at all he made this payment to the deceased, why did he not get the suit land transferred in his name by means of a sale-deed or through a mutation attested in his favour. In the absence of any proof of making of payment to the deceased through cheque(s)/pay order(s)/draft(s) etc., one would have to stretch one's credulity to believe in the assertions made by the appellant. The possession of the plaintiff over the suit land appears to be in the capacity of a co-sharer. Therefore, the appellant cannot make capital out of this fact. Even otherwise, mere possession of a person over a piece of land would not entitle him to the grant of temporary injunction as was held by the Hon'ble Supreme Court of Pakistan in the case reported as Muhammad vs. Ali Mehnga Khan' (2004 SCMR 1111). Furthermore, given the claim of the appellant that he did not get the oral agreement reduced into writing on account of his close relationship with the deceased lady, it would be an uphill task for him to prove the transaction in question and as to when, where and in whose presence the deal was clinched between the deceased lady and the plaintiff. Again, whether late Mst. Bashiran Bibi, predecessor-in-interest of the defendants/ respondents had independent advice available to her at the time of the deal alleged to have been made by her with the plaintiff/appellant. All these facts are yet to be established by the appellant. Therefore, as things stand it cannot be observed, even tentatively, that the appellant has a Prima facie case. In case respondents are restrained from dealing with the suit land as they please and an injunction is granted, respondents would be at a disadvantage. Therefore, neither the balance of

convenience lies in favour of the appellant nor is he likely to suffer irreparable loss. And in the absence of any of the aforesaid ingredients, which are a prerequisite for the grant of temporary injunction, the Courts of law invariable decline to grant the relief asked for by the plaintiff.

1. The impugned order passed by the learned trial Court does not suffer, from any infirmity. Apparently, the learned trial Court kept in view all the aspects of the conflicting claims made by the parties to the suit. It appears to have weighed pros and cons of the consequences which were likely to flow from the grant or refusal of an injunction sought for by the appellant. To my mind, the learned trial Court rightly exercised its jurisdiction by dismissing the application of the appellant/plaintiff for the grant of temporary injunction.

2. For what has been stated above, this appeal challenging the order dated 21.11.2013 passed by learned Civil Judge, Khanewal being devoid of merits is hereby dismissed in limine.

(R.A.) Appeal dismissed

PLJ 2015 Lahore 35 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

KHURSHEED AHMAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MAILSI and others--Respondents

W.P. No. 6159 of 2009, decided on 28.1.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Suit for maintenance, decreed--Disown paternity of his son--Paternity could be determined by conducting DNA test--Remedy of an appeal--Maintainability of petition--Writ jurisdiction is not to be allowed to be used as a substitute for second appeal or revision provided in CPC--Unless there is patent illegality or impugned judgments and decrees passed by Family Court as also appellate Court suffer from grave infirmities, High Court would be slow in interfering with concurrent findings recorded by them--Family Court ought to have stayed his hands until conducting of DNA test, if this be made a yardstick/benchmark, it would be used as a ruse in every other case to ward off demand of provision of maintenance to minors. [P. 38] A & B

Report of DNA--

----Jurisdiction--Question is whether Family Court is to abdicate his jurisdiction until availability of DNA report--Court cannot close its eyes to ground realities, prevailing circumstances as well as conduct of unscrupulous elements. [P. 38] C

Mian Muhammad Jamal, Advocate for Petitioner.

Mr. M.Malik Khan Langah, Advocate for Respondents Nos. 3 and 4.

Date of hearing: 28.1.2014.

Order

Through this petition, the petitioner has challenged the legality, correctness and validity of the judgments and decrees dated 31.3.2009 and 20.6.2009 passed by the learned Judge Family Court, Mailsi and the learned Addl. District Judge, Mailsi, District Vehari, respectively.

1. The facts, in brief, are that Mst. Nazia Hussain and Asad Khurshid (minor) instituted a suit for maintenance, contending therein that Mst. Nazia Hussain was married to Khurshid Ahmad (petitioner herein) and that Asad Khurshid (minor) was born to them. Their relations were cordial. However, some three months prior to the institution of the suit, the petitioner herein turned the plaintiffs/Respondents Nos. 3 & 4 out of his house. It was further averred in the plaint that the petitioner/defendant was a cultivator who could easily pay maintenance to Mst. Nazia Hussain at the rate of Rs.6000/- a month, while he was liable to pay maintenance to the minor Asad Khurshid at the rate of Rs. 12000/- a month. All in all, past maintenance for three months amounting to Rs.36000/- was demanded. As for future maintenance, it was claimed at the rate of Rs. 18000/- a month.

2. The petitioner/defendant entered appearance and filed written statement, denying all the averments made by the plaintiffs. He went to the extent of disowning Asad Khurshid as his child. besides repudiating his marriage with Nazia Hussain. Out of divergent pleadings of the parties, the learned Judge Family Court framed the following issues:--

3. Whether the plaintiffs are entitled to get maintenance from the defendant? If so, from when and at what rate? OPP

4. Whether the plaintiff has filed a false and frivolous suit against the defendant as the plaintiff has no relations with the defendant? OPD

5. Relief.

6. In support of her claim. Mst. Nazia Hussain appeared herself as P.W.1 and produced Mukhtiar Hussain (P.W.2), Wajid Nawaz (P.W.3) and Haji Akhtar (P.W.4). All of them testified on oath that Mst. Nazia Hussain was married to Khurshid Ahmad, and that Asad Khurshid, the minor was born to them. They also deposed that the petitioner is a man of means, and can easily afford maintenance at the rate of Rs.6000/- a month to each of the plaintiffs. As against this, Khurshid Ahmad, appeared as D.W.1 and produced Muhammad Babar Khan as D.W.2. He stuck to his stand that he never married Mst. Nazia Hussain. He went on to disown the paternity of Asad Khurshid. He also stated that he did not have sufficient means to pay the maintenance demanded by the plaintiffs. This portion of his testimony was recorded in spite of his denial to any relationship with the plaintiffs.

7. Having recorded the evidence of the parties and after listening to the arguments of the learned counsel for the parties, the learned Judge Family Court Mailsi decreed the suit for maintenance, ordering the defendant (petitioner herein) to pay maintenance to Mst. Nazia Hussain at the rate of Rs. 1500/- per month from the date of filing of the suit until the period of Iddat, while maintenance of the minor Asad Khurshid was also fixed at the same rate with 10% annual increase. The rest of the claims made by the Plaintiff No. 1 were dismissed. The aforesaid judgment and decree dated 31.3.2009 passed by the learned Judge Family Court, Mailsi was assailed by filing an appeal before the learned Addl. District Judge, Mailsi. The findings of the learned Judge Family Court were upheld and the appeal was dismissed vide judgment and decree dated 20.5.2009.

8. As stated above, this writ petition has been filed to challenge the legality of the judgments and decrees passed by the learned Courts below. In support of the writ petition, the learned counsel for the petitioner contends that when the very relationship between Nazia Hussain and the petitioner was denied and the paternity of Asad Khurshid was repudiated, the learned Judge Family Court should have refused to proceed with the suit instituted by Mst. Nazia Hussain, directing her to first institute a suit for declaration. He forcefully argues that the paternity of Asad Khurshid could be determined only by conducting a DNA test. He makes criticism of the laid-back and perfunctory approach adopted by the learned Courts below. He questions the manner in which both the learned Courts below determined the crucial issue of paternity of. Asad Khurshid as well as the alleged marriage of Mst. Nazia Hussain with the petitioner. He goes on to argue that both the learned Courts below misapprehended the facts, misconstrued the evidence and misapplied the law. At the fag end of his submissions, he disclosed that the petitioner has already instituted a suit seeking to declare that Mst. Nazia Hussain was not married to him and that Asad Khurshid is not his son.

The arguments advanced by the learned counsel for the petitioner were controverted, rebutted and refuted by the learned counsel for Respondents Nos. 3 & 4. He was quite appreciative of the approach adopted by the learned Judge Family Court. He paid tribute to the sagacity of the learned Judge seized with the suit who asked the child to identify his father among a number of persons standing in the Court and observed that the minor was naturally drawn to his father and he did not even take a look at the strangers. This test employed by the Judge suggested to him that the defendant (petitioner herein) was being economical with the truth and that the minor is his son.

1. I have heard the arguments of the learned counsel for the parties and also gone through the record with their assistance. As is obvious from the contentions raised by the learned counsel for the petitioner, he is practically seeking reappraisal of the evidence. It goes without saying that this Court cannot undertake this exercise in writ jurisdiction. The law of the land has provided for only one appeal under Section 14 of the W.P. Family Courts Act, 1964. The writ jurisdiction is not to be allowed to be used as a substitute for second appeal or revision provided in the Civil Procedure Code. Unless there is patent illegality or the impugned judgments and decrees passed by the learned Judge Family Court as also the appellate Court suffer from grave infirmities, this Court would be slow in interfering with the concurrent findings recorded by them. As for the argument of the learned counsel for the petitioner that the learned Judge Family Court ought to have stayed his hands until the conducting of DNA test, if this be made a yardstick/benchmark, it would be used as a ruse in every other case to ward off the demand of provision of maintenance to minors. It is an open secret that the report of DNA test is never readily available. Sometimes, it takes months and months together before the same is made available. The question is whether the Judge Family Court is to abdicate his jurisdiction until the availability of DNA report. The answer must be in the negative. This Court cannot close its eyes to the ground realities, prevailing circumstances as well as the conduct of the unscrupulous elements.

2. Since the petitioner has failed to point out any misreading or non-reading of evidence adduced by the parties, I am not inclined to interfere with the conclusions arrived at by the learned Courts below. Their findings are unexceptionable.

3. This petition being devoid of merits is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 39

Present: Abdus Sattar Asghar, J.

Mrs. REHANA KAUSAR and others--Petitioners

versus

PAKISTAN ELECTRIC POWER COMPANY LIMITED (PEPCO) and others--Respondents

W.P. No. 28063 of 2011, decided on 7.3.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Special allowance--Benefit of--Entitlement of--Validity--There is no cavil to proposition that petitioners also possess equivalent educational qualification which was made basis for grant of special allowance --Extending an additional allowance to officers of one cadre and denying to other cadre in same level of skill and responsibilities having equal educational qualification amount to nothing else but discrimination violative to Arts. 25 and 27 of Constitution--Petitioners possessing equal educational, qualification, level of skill and responsibilities cannot be discriminated--Petitioners were also entitled to benefit of Special WAPDA Allowance at rate of Rs.10,000/- per month with effect from 01.09.2009. [Pp. 44 & 45] A, B & C

Mian Mahmood Hussain, Advocate for Petitioners.

Mr. TariqMahmood Aamir, Advocate for Respondents.

Date of hearing: 7.03.2014

Order

Petitioners have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 alleging that the petitioners possessing degrees of M.Sc. (Chemical Engineering) and M.Sc.(Chemical Technology) are entitled to the grant of Special WAPDA Allowance at the rate of Rs. 10,000/- per month with effect from 01.01.2009 which has been extended by the WAPDA and its relating Companies/respondents almost to all categories of their employees in BS-17 and above who possess B.Sc. Engineering and Masters Degrees; that the petitioners were constrained to send legal notice dated 24.10.2011 to the respondents seeking grant of special allowance which has been declined through the impugned order dated 3.11.2011; that the impugned order is illegal, arbitrary, discriminatory, violative to the petitioners' right guaranteed under the Constitution, untenable and liable to set aside. Petitioners have also sought for a direction to the respondents to grant the special allowance at the rate of Rs. 10,000/- per month to the petitioners with effect from 1.9.2009.

1. Learned counsel for the respondents with reference to their reports/parawise comments contends that PEPCO is a Managing Company for all the DISCOs, GENCOs and NTDC; that special allowance of Rs. 10,000/- per month was allowed to cater for a special situation to attract and harness the best engineering professionals in the respondents' Companies being predominantly engineering and technological organizations; that the allowance is restricted to engineering cadres having bona fide registrations from the Pakistan Engineering Council (PEC), a Regulatory Body for engineering professionals; that the motive behind extending the special allowance is to streamline the compensations proportionate to the value of work performance by the Engineering and Finance/Accounts professionals, composite of skills, efforts and responsibility required in the performance of work and the recruitment and retention needs, taking into account the qualification required to perform the work and market force in respect of employees with those qualifications; that the cadres which do not face any peculiar challenges warranting some remedial actions are not allowed any special allowance. He has further argued that no discrimination or comparison is drawn amongst the various qualifications; that engineering qualification has its own significance and importance but things have to be seen from the angle of its relevance, relative utility and convenience of availability of professionals to the organization; that the petitioners cannot be compared with the cadres of Engineers and Accounts/Audit, as every cadre has its peculiar utility and has to be seen or examined on case-to-case basis for relevance and importance to the organization; that PEPCO and Corporatized Entities are primarily engineering organizations having 90% personnel belonging to engineering cadre; that the respondents have allowed special allowance to Doctors serving in the respondent organizations, however petitioners have no match with the said cadre either by profession or by organization therefore they are not entitled to claim merit equal to the above said cadres; that the petitioners are not discriminated rather declined for special allowance in accordance with operative rules and regulations; that the impugned order dated 3.11.2011 is in accordance with law, rules, standing regulations and thus do not call for any interference.

2. Arguments heard. Record perused.

3. At the out-set it may be expedient to reproduce the relevant letters in chronological order issued by the WAPDA and PEPCO Authorities on the subject, which read below:--

4. "PAKISTAN WATER & POWER DEVELOPMENT AUTHORITY

| | | | --- | --- | | Telephone No. 9202482 9202211/2225 No. FO(B&F)3-78/Vol-I/3498-3597 | FINANCE DIVISION (ADMN & REG) 225-WAPDA House, Lahore Date 20.2.2009 |

OFFICE ORDER

Subject:- SPECIAL WAPDA ALLOWANCE

In supersession of this Division's O.M. No. FO(B&F)/10-66(b)/Vol-22/824-923 dated 30.8.2008, the Authority has been pleased to accord approval for restoration of "Special Engineering Allowance" as "Special WAPDA Allowance" at uniform rate of Rs. 10,000/- (Rupees ten thousand only) per month, with immediate effect, for Graduation Engineers in BPS-17 & above, working in all engineering cadres of WAPDA.

Sd/- (Muhammad Farooq Memon)

1. Pakistan Electric Power Company (Pvt) Limited.--

Office of the General Manager (Human Resources) 159-WAPDA House, Shahrah-i-Quaid-i-Azam, Lahore Tel. (042-9201989 & 9202211/2189 Fax (042)9202402 Ref. No. GM(HR)/HRD/A-587/2196-2234 Date: March 21, 2009

OFFICE ORDER

Subject:- SPECIAL ALLOWANCE

PEPCO BOD has been pleased to accord approval for grant of "Special Allowance" at a uniform rate of Rs. 10,000/- (Rupees ten thousand only) per month for Graduate Engineers in all Engineering Cadres of BPS-17 and above working in Corporatized Entities and allied Power Wing Head Office under PEPCO with effect from 20.2.2009.

Sd/- (Abdur Rahman)General Manager (HR) PEPCO

1. PAKISTAN WATER & POWER DEVELOPMENT

| | | | --- | --- | | Telephone No. 9202482 9202211/2225 No. FO(B &F)/3-78/Vol-2/887-986 | FINANCE DIVISION (ADMN & REG) 225-WAPDA House, Lahore Date 1.9.2009 |

OFFICE ORDER

Subject:- SPECIAL WAPDA ALLOWANCE FOR OFFICERS OF FINANCE, ACCOUNTS, COSTING & AUDIT CADRES

In order to attend and retain qualified persons, the Authority has been pleased to accord approval to the grant of "Special WAPDA Allowance" at uniform rate of Rs. 10,000/- (Rupees Ten Thousand only) per month to officers in Grade-17 & above working in Finance, Accounts, Costing and Audit Cadres, with immediate effect. This is subject to condition that the allowance shall be admissible only to those officers who possess the minimum qualification of M.B.A/M.P.A/M.Com/M.A. (Economics)/C.A.(Inter)/I.C.M.A (Inter).

Sd/- (Muhammad Farooq Memon) Director Finance (Admn & Regulations)

1. Pakistan Electric Power Company (Pvt) Limited

Office of the General Manager (Human Resources) 189-WAPDA House Shahrah-i-Quaid-i-Azam, Lahore Tel: (042)9201989 & 9202211/2189 Fax: (042)9202402

Ref. No. (GM)/HRD/A-332/6823-53 Date: 5.12.2009

OFFICE ORDER

Subject: GRANT OF SPECIAL ALLOWANCE FOR OFFICERS OF FINANCE. ASCCOUNTS. COSTING & AUDIT CADRERS.

PEPCO management has been pleased to accord approval for grant of a Special Allowance at Uniform rate of Rs. 10,000/- per month to the Officers in BPS-17 & above working in Finance, Accounts, Costing & Audit Cadres w.e.f. 01.09.2009. This is subject to the condition that allowance in question shall be admissible only to those Officers who possess the minimum qualification required for initial appointment in BPS-17 of the respective Cadre i.e. MBA/MPA/M.Com/M.A. (Economics)/C.A. (Inter)/ICMA (Inter)/Master of Administration Science (MAS) Degrees from Higher Education Commission (HEC) recognized Universities.

Sd/- (Ghaffar Ahmad) Assistant Manager(Admn)

1. STKAN WATER & POWER DEVELOPMENT AUTHORITY

| | | | --- | --- | | Telephone No. 99202482 99202211/2287 No. FO(B&F)10-103/Vol.IV/5338-46 | FINANCE DIVISION (ADMN & REG) 225-WAPDA House, Lahore Date 3.8.2009 |

OFFICE ORDER

Subject:- INCENTIVE TO ATTRACT & RETAIN DOCTORS IN WAPDA MEDICAL SERVICES.

In order to attract & retain Doctors in WAPDA Medical Services, the Authority has been pleased to accord approval for following incentives, w.e.f. 01.07.2011:-

(i) Professional Allowance.

Grant of Professional Allowance & Rs. 10,000/ per month for all Specialists, General Duty Medical Officers, Dental Surgeons and allied medical professional officers including qualified Physiotherapists and Pharmacists in WAPDA Medical Services.

(ii) Specialist Additional Incentive

Specialist in Radiology, Anesthesiology, Oncology and Reconstructive Surgery shall be allowed Specialist Additional Allowance as under:--

| | | | --- | --- | | For lower diploma holders For Higher Diploma Holders: | Rs. 15000/- per month; Rs. 20,000/- per month; |

(iii) Non-practicing Allowance.

The existing rates of non-practicing Allowance are revised as under:--

| | | | --- | --- | | BPS-17 & 18 BPS-17 & 18 BPS-19& above: | Rs.4000/- per month, Rs.4000/- per month, Rs.6000/- per month |

(vi) Critical Patient Care Allowance:

Medical Officer working in established Intensive Care Unit (ICU)/Coronary Care Unit (CCU) will be allowed Critical Patient Care Allowance @ Rs.4000/- per month.

Sd/- (Muhammad Farooq Memon)Director Finance (Admn & Regulations)"

1. Bare appraisal of the above referred orders makes it crystal clear that the benefit of special allowance of Rs. 10,000/- per month has been extended to all the officers of BS-17 and above working in Engineering, Finance, Accounts, Costing and Audit, Administration and Human Resources Cadres of WAPDA and related Companies. There is no cavil to the proposition that the petitioners also possess equivalent educational qualification which was made basis for grant of special allowance to the above said cadres. Petitioners serving as Chemical Managers possess degrees of M.Sc. (Chemical Engineering) and M.Sc. (Chemical Technology). Nature of their job and responsibilities are not less valuable from other cadres to which benefit of special allowance has already been extended. Extending an additional allowance to the officers of one cadre and denying to the other cadre in the same level of skill and responsibilities having equal educational qualification amount to nothing else but discrimination violative to Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973. On the same principle High Court of Sindh (Circuit Court) Hyderabad in Constitutional Petition No. D-22/2012 vide their order dated 01.08.2012 has granted special allowance of Rs. 10,000/- to the officers in BS-17 and above working in Administration and Human Resource Cadres of WAPDA and this Court in Writ Petition No. 19044/2009 vide order dated 16.2.2012 has granted Special WAPDA Allowance to the officers in BS-17 and above, holding requisite qualifications and working as Assistant Research Officers in WAPDA.

Petitioners possessing equal educational, qualification, level of skill and responsibilities cannot be discriminated. Petitioners therefore are also entitled to the benefit of Special WAPDA Allowance at the rate of Rs.10,000/- per month with effect from 01.09.2009.

1. For the above reasons, this petition is allowed and the respondents are directed to extend the benefit of Special WAPDA Allowance to the petitioners in the above terms. Arrears towards special allowance in terms of this order shall be paid to the petitioners within a period of 90 days.

(R.A.) Petition allowed

PLJ 2015 Lahore 45 [Multan Bench Multan]

Present: ShahKhawar, J.

SHAMA KHAN ZAFAR--Petitioner

versus

DISTRICT COORDINATION OFFICER, LODHRAN etc.--Respondents

W.P. No. 15606 of 2012, decided on 14.4.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Promotion to next higher grade--Appointment against leave vacancy--Seniority list of employees--Juniors were promoted--Inquiry was pending--Disciplinary proceedings pending against civil servant was not sufficient ground to disregard lawful right of four consideration for promotion--Validity--Mere pendency of departmental inquiry or in presence of minor penalty, a civil servant cannot be denied of his fundamental rights to be considered for promotion where his batch mates and even juniors are considered and promoted--Petitioner, who is a teacher by profession, must have gone through frustration and mental stress clue to denial of his legal right--Concept of administration of justice has been defined and interpreted by a number of judicial pronouncements. [P. 49] A & B

Mr.Noor Ahmad Khan Meo, Advocate for Petitioner.

Mr. Aurangzeb Khan, Assistant Advocate General, Punjab for Respondents.

Date of hearing: 14.04.2014

Order

Through instant writ petition, the petitioner has called in question his non-consideration by the Departmental Promotion Committee for promotion to next higher grade i.e. BS-16 under uplift and upward mobility (Pay Package w.e.f. 1.12.2009).

1. Relevant facts giving rise to the filing of the instant writ petition are that the petitioner was appointed as PTC vide Letter No. 11079 dated 31.12.1984 and joined his duties at Government Primary School, Dera Mehro Markaz Karor Pacca, Lodhran. Later on, he was temporarily adjusted as EST against the leave vacancy of Mr. Hazoor Bakhsh, EST vide Letter No. 7870/Admn dated 28.10.1985 with the condition that appointment against leave vacancy is temporary up till 31.08.1986 and after the said date he was to report back at his original post i.e. PTC. Instead of report back to his original post the said teacher was adjusted as EST against the post of Mr. Hazoor Bakhsh vide Letter No. 3365/Admn dated 10.08.1986 by the competent authority. On query regarding verification/confirmation of posting of the petitioner as EST by the Deputy District Education Officer, Kehror Pacca as well as the Incharge Head Master, Govt. High School, Bahawal Garh, Tehsil Kehror Pacca, District Lodhran vide letters dated 27.09.2010 and 16.08.1986 respectively, the District Education Officer informed that the services of the petitioner as EST had already been confirmed/verified vide Letter No. 3365 dated 16.08.1986 on permanent basis.

2. Subsequently, the Chief Minister of the Punjab videnotification dated 06.11.2009 approved the structure for uplift and upward mobility of Primary and Elementary School Teachers (Male and Female) of all categories in Punjab w.e.f. 01.12.2009 as per ratio given below:--

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Category of Teacher | Initial Level | | Level I | | Level II | | | | Pay Scale | Ratio of Post | Pay Scale | Ratio of Post | Pay Scale | Ratio of Post | | PSTs (Male & Female) | BS-9 | 50% | BS-12 | 35% | BS-14 | 15% | | ESTs(Male & Female) | BS-14 | 50% | BS-15 | 35% | BS-16 | 15% | | ESTs(English) (M & F) | BS-14 | 50% | BS-15 | 35% | BS-16 | 15% |

In this regard, the senioritylist of ESts (General), District Lodhran was prepared in which the petitioner was placed at Sr.No. 17. The meeting of Departmental Promotion Committee, Lodhran was convened on 11.08.2011 but the petitioner, whose seniority was rated at Sr. No. 17, was not considered for the benefit of next higher grade BS-16 and his juniors, who were assigned seniority at Serial No. 18 to 65, were awarded BS-16. When the petitioner approached the Executive District Officer (Education), Lodhran, he was informed that his name was not considered by the Departmental Promotion Committee due to the reason that his inquiry was pending on the basis of an Audit Para in respect of his irregular appointment against the post as EST.

1. The petitioner prayed that a direction may be issued to the respondents to place his case before the Departmental Promotion Committee for fair consideration to award grade BS-16 under the structure of uplift and upward mobility at par with his batch mates.

2. Notice was issued to the respondents who filed report and para-wise comments wherein, it is mentioned that in the year 2006-09, the audit scrutiny was conducted by the Audit Department of office of the Deputy District Education Officer (M) Tehsil Kahror Pacca. The Audit Officer raised the objection regarding appointment of the petitioner as EST at Government Middle School Mohammad Saeed Tehsil Kahror Pacca in the shape of Advance Audit Para No. 02 that the appointment of the petitioner is irregular and needs an inquiry into the matter and an inquiry officer was deputed to look into the matter.

3. Learned counsel for the petitioner has argued that the pendency of inquiry on the basis of Audit Para could not have been made basis for non-consideration of the petitioner in the next higher grade BS-16. He contended that it is a well established law laid down by the Hon'ble Superior Courts that the pendency of inquiry and even minor penalty cannot come in the way of promotion. Reliance has been placed on Maj. Ziaul Hassan, Home Secretary and others versus Mrs. Naseem Chaudhry (2000 SCMR 645), Mrs. Sanjida Irshad, Assistant Director Nursing, Bahawalpur versus Secretary to Government of the Punjab Health Department Lahore and others [2008 PLC (C.S) 1019] and Muhammad Afzal Khan versus Government of Punjab through Secretary to Government of the Punjab C&W Department and another [2009 PLC (C.S.) 40]. The Hon'ble Supreme Court of Pakistan in its judgment has held that some disciplinary proceedings pending against the civil servant is not a sufficient ground to disregard his lawful right of fair consideration for promotion. Moreover, the Hon'ble High Court in the above cited judgment has held that the civil servant cannot claim promotion as a matter of right, but it is an inalienable right to every civil servant that he be considered for promotion along with his batch mates, if he fulfills eligibility criteria.

4. During the course of arguments, learned Assistant Advocate General Punjab has fairly commented that a civil servant cannot be disregarded for promotion if one is not otherwise ineligible. He has fully agreed with the judgments passed by the Hon'ble Superior Courts on this issue.

5. I have given my anxious consideration to the arguments advanced by learned counsel for the petitioner as well as learned Assistant Advocate General and have perused the record with their able assistance.

6. This is an admitted position that the Chief Minister of the Punjab approved the structure of uplift and upward mobility of Primary and Elementary School Teachers of all categories vide notification dated 06.11.2009. In pursuance of the said notification, EST and other cadres were to be awarded next higher grade BS-15 & BS-16 on the basis of date of their regular appointments and length of service on the recommendations of District Selection Committee, Lodhran. Consequently, the District Education Officer, Lodhran notified seniority list for such promotion and petitioner's seniority was reckoned at Sr.No. 17 in the said list. The Departmental Promotion Committee was convened on 11.08.2011 but the petitioner's name was not placed before the same, as a result of which the juniors to the petitioner, who were assigned seniority against Sr. Nos. 18 to 65 were awarded BS-16. From the parawise comments filed by the respondents, it is made clear that the name of the petitioner was not placed before the Departmental Promotion Committee due to the reason that an inquiry on the basis of advance Audit Para was pending against him.

7. As held by the Hon'ble Superior Courts of the country that the pendency of inquiry and one minor penalty cannot come in the way of promotion of a civil servant. Further that civil servant cannot claim promotion as a matter of right but it is also undisputed fact that it is an inalienable right of every civil servant that he be considered for promotion alongwith his batch mates.

8. Surprisingly, in the instant case, the petitioner was deprived to be considered for promotion to the next higher grade BS-16 before Departmental Promotion Committee, Lodhran on the sole reason that his inquiry regarding Audit Para was pending.

9. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 speaks about the right of individuals to be dealt with in accordance with law, 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. In the same manner, Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 ensures equality of citizens by mandating that all citizens are equal before law and are entitled to equal protection of law.

10. Chapter-I of the Constitution of Islamic Republic of Pakistan, 1973 is an integral part of the Constitution and all State functionaries are duty bound to extend these rights across the board to the citizen. It is not necessary for State functionaries to have performed their Constitutional obligations after intervention of the Hon'ble Superior Courts. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court has the jurisdiction to protect and enforce the fundamental rights of the citizens which have been denied. According to Article 5 of the Constitution of Islamic Republic of Pakistan, 1973, loyalty to State and obedience to Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The word "citizen" does not confine to the ordinary citizen of the country but also covers person's functions in connection with the affairs of the Federation, Province or a legal authority. All the State functionaries are duty bound to strictly adhere to the Constitution and specially Articles 4, 5 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 while dealing with their day to day business. They should not wait for intervention of the Hon'ble Superior Courts but to extend equal treatment and protection of law whenever they are seized of the matters of the aggrieved persons.

11. In the present case, the respondents were mindful of the fact that there are number of judgments passed by the Hon'ble Superior Courts having decided question of law that mere pendency of departmental inquiry or in the presence of minor penalty, a civil servant cannot be denied of his fundamental rights to be considered for promotion where his batch mates and even juniors are considered and promoted. The department sat over the case of the petitioner for a long time waiting for the decision of this Court. The name of the petitioner could have been placed in the next scheduled meeting of Departmental Promotion Committee but the needful was not done in complete determent. The petitioner, who is a teacher by profession, must have gone through frustration and mental stress due to denial of his legal right. The concept of administration of justice has been defined and interpreted by a number of judicial pronouncements. Reference could be placed on the judgment passed by the Hon'ble Supreme Court of Pakistan in case titled Samiullah Khan Marwat

versusGovernment of Pakistan and another reported in [2003 SCMR 11401, in which concept of administration of justice has been interpreted, the relevant portion of the judgment is reproduced as under:

'The exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey the command of law and the Constitution. The concept of administration of justice is not confined only to the judicial system rather every person discharging the functions in relation to the rights of people is bound to act fairly, justly and in accordance with law."

1. In the aforementioned circumstances, I have no other option except to allow the instant writ petition. The respondents are directed to place petitioner's promotion case before the Departmental Promotion Committee, Lodhran within a period of two months from the receipt of this order and the Departmental Promotion Committee shall consider the promotion case of the petitioner in highly fair and just manner. The result of the Departmental Promotion Committee shall be conveyed to this Court through the Deputy Registrar (Judicial). The instant writ petition is allowed in the above terms.

(R.A.) Petition allowed

PLJ 2015 Lahore 50 [Multan Bench Multan]

Present: Shoaib Saeed, J.

TECHNICAL EDUCATION & VOCATIONAL TRAINING AUTHORITY through Chief Operating Officer--Petitioner

versus

HUSNAIN HAIDER and 2 others--Respondents

W.P. No. 8507 of 2013, decided on 20.11.2014.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Technical Education and Vocational Training Authority Act, 2010, S. 2(1)--Constitutional Petition--Appointment as cashiers--Rejection of up-gradation--Challenge to--Condonation of delay was not provided justifiable ground for condonation--No plausible reasons were assigned--Question of limitation could not satisfy Court for inordinate delay in filing of appeals--Rule of good governance--Validity--Petitioner neither cross-examined witnesses produced by respondents nor produced any evidence in support of their pleadings--Evidence produced by respondents went un-rebutted--Employees covered there-under and not to exclude persons involved in same nature of work--Under Art. 25 of Constitution, similarly placed persons are to be treated alike--When benefit was granted to one employee it should be passed on to respondents who were equally eligible and qualified for same treatment in terms, of notifications--Petition was dismissed.

[P. 53] A, B & C

Mr. Ahmad Hassan Khan, Advocate for Petitioner.

Ch.Saleem Akhtar Warraich, Advocate for Respondents.

Date of hearing: 20.11.2014

Order

Through this single order I intend to dispose of the titled writ petition as well as W.P. No. 8508 of 2013 (TEVTA vs. Sajid Mehmood) and W.P. No. 8509 of 2013 (TEVTA vs. Raja Idrees) as common questions of facts and law are involved in all these matters.

1. Petitioner in these writ petitions has impugned the judgment dated 07.05.2013 passed by the Punjab Labour Appellate Tribunal No. II, Multan and dated 24.09.2012 passed by the Presiding Officer, Punjab Labour Court No. 9, Multan respectively.

2. Brief facts of the case are that respondents Hasnain Haider and Raja Idrees were appointed as cashiers while Sajid Mehmood was appointed as accountant on 06.02.2006 in the Institute of Blue Pottery Development (IBPD), Multan.

Petitioner is a body incorporated and established by the Government of the Punjab under the Punjab Technical Education and Vocational Training Authority Act, 2010, it establishes, maintains, regulates and administers various technical institutions as defined under Section 2(1) of the Act ibid. The Institute of Blue Pottery Development Multan is one such amongst others.

That Government of Punjab videits Notification dated 21.04.2010 upgraded clerical posts of TEVTA contract employees.

Respondents in all the three petitions submitted applications for up-gradation from BS-11 to BS-14 in pursuance of Notification of Govt. of Punjab dated 23.11.2009. Applications were rejected by the petitioner for the reason that those did not fall in Notification dated 21.04.2010. Thereafter applications were re-submitted but those were also declined.

Aggrieved against the rejection of applications for up-gradation, respondents sent grievance notices on 09.12.2011 to the petitioner which were not responded, leading to filing of grievance petitions before Labour Court No. 9, Multan.

Petitioner put in appearance but after a few dates of hearings did not pursue the matter and was declared ex parte. An application for setting aside ex-parte order was moved but that too was not prosecuted which led to its dismissal. Thereafter ex-parte evidence of the respondents was recorded on 10.09.2012. Petitioner failed to produce evidence, the evidence led by respondents went un-rebutted, Punjab Labour Court No. 9 accepted grievance petitions of the respondents vide order dated 24.09.2012.

Appeals against the said judgments dated 24.09.2012 were filed with the Punjab Labour Appellate Tribunal No. II, Multan which were also dismissed through a single judgment on the point of limitation, being barred by time.

1. Learned counsel for the petitioner mainly emphasized that the Institute of Blue Pottery Development, Multan was established with the object to revive the old Muslim Technology of Blue Pottery in the field of ceramics and to produce skilled workers. It provides training to students for one year duration. It also provides free of cost job training to students who are paid a monthly stipend of Rs.1500 to Rs.3000/-. It was further argued that respondents were not workmen as defined under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 or under the Punjab Industrial Relations Act 2010, therefore, Labour Court (Respondent No. 2) had no jurisdiction to entertain their grievance petitions. Reliance was placed on the judgments reported as Karachi Chamber of Commerce and Industry , Karachi versus Sindh Labour Court No. V. Karachi and others (2012 PLC 251 Supreme Court of Pakistan); Board of Governors Aitchison College, Lahore versus Punjab Labour Appellate Tribunal and others (2001 SCMR) 1928); KG. Old Principal, Christian Technical Training Centre, Gujranwala versus Presiding Officer Punjab Labour Court, Northern Zone and six others (PLD 1976 Lahore 1097)

2. Conversely, it was argued that appeals filed before Labour Appellate Tribunal No. II, Multan (Respondent No. 3) were barred by one month and 13 days; that the application seeking condonation of delay did not providejustifiable grounds for its condonation. Reliance placed on the judgment reported as Commissioner of Income Tax/Wealth Tax vs. Messrs Hameed Model Industries (Pvt.) and another (2000 SCMR 648) and Raja Khan versus Manager (Operation) Faisalabad Electric Supply Corporation (WAPDA) and others (2011 SCMR 676). It was further argued that another employee namely Muhammad Jabran was up-graded from grade-11 to grade-14 which was proved through Ex.P-10 the document went un-rebutted by the petitioner. Respondents being similarly placed were discriminated. Reliance was placed on the case law cited as Abid Hussain and 5 others versus Secretary to Government of the Punjab, Finance Department, Civil Secretariat, Lahore and 5 others (2012 PLC(C.S) 26) and AfzalKhan and others versus Chief Commissioner and others (2012 PLC(C.S) 87).

3. Arguments heard. Available record perused.

4. There is no denying the fact that appeals before the Punjab Labour Appellate Tribunal No. II, Multan were filed with an inordinate delay of one month and 13-days, application seeking condonation was filed, but no plausible reasons were assigned therein. Learned counsel for the petitioner when confronted with the question of limitation could not satisfy the Court for inordinate delay in filing of appeals.

The judgments referred to by the learned counsel for the petitioner are not attracted to the facts of the case, petitioner neither cross-examined the witnesses produced by the respondents nor produced any evidence in support of their pleadings. The evidence produced by the respondents went un-rebutted.

1. Exh.P-10 regarding up-gradation of similarly placed employee was proved while respondents were discriminated although similarly placed.

2. The spirit and object of Notifications dated 23.11.2009 and 21.04.2010 was meant to benefit the employees covered there-under and not to exclude the persons involved in the same nature of work. Under Article 25 of the Constitution of Islamic Republic of Pakistan 1973, similarly placed persons are to be treated alike.

3. The dictates and rule of good governance that when benefit was granted to one employee it should be passed on to the respondents who were equally eligible and qualified for same treatment in terms, of the afore-referred notifications.

In view of the above, all the three writ petitions being devoid of merits are dismissed.

(R.A.) Petitions dismissed

PLJ 2015 Lahore 54 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

CHIEF EXECUTIVE OFFICER MEPCO--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL NO-II, MULTAN, etc.--Respondents

W.P. No. 615 of 2014, decided on 17.6.2014.

Industrial Relations Ordinance, 2002 (XCI of 2002)--

----S. 46(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Imposition of major penalty of compulsory retirement--Challenge to--Grievance petition was filed after seven years delay--Grievance to notice of employer in writing--Communication of decision--Validity--If an employer fails to communicate his decision within period specified or if a worker is dis-satisfied with such decision worker may take matter to labour Court but he shall do so within a period of two months from date of communication of decision by employer or as case may be from expiry of period specified in Section 46(2) of Industrial Relations Ordinance.

[P. 57] A

Jurisdiction ofLabour Court--

----It is an undeniable fact that jurisdiction of Labour Court/Tribunal created under special statute is dependent upon nature of claim, person who files claim, time during which it has been filed and manner in which such claim has to be filed--All jurisdictional facts and assessment of these facts determines jurisdiction of labour Court as well as Labour Appellate Tribunal--Jurisdiction can be exercised by Labour Court/Tribunal when all jurisdictional facts exist together. [P. 57] B

Industrial Relations Ordinance, 2002 (XCI of 2002)--

----Scope of--Result of defective--Jurisdiction--Labour Court or Labour Appellate Tribunal are under an obligation to act within scope of Industrial Relations Ordinance, 2002 and cannot exercise jurisdiction as Civil Court; as soon as Labour Court or Labour Appellate Tribunal steps out of four corners of a special law order/judgment passed would be result of defective or excessive exercise of jurisdiction. [Pp. 57 & 58] C

Constitution of Pakistan, 1973--

----Art. 199--Industrial Relations Ordinance, (XCI of 2002), S. 46--Constitutional petition--Violation of law--Imposition of major penalty of compulsory retirement--Court under Art. 199 of Constitution would always rectify illegality and violation of law and undo harm caused by Tribunal--Order passed by Labour Appellate Tribunal is patently in violation of express provisions of law i.e. Section 46 of Industrial Relations Ordinance, 2002. [P. 58] D

Ch.Saleem Akhtar Warriach, Advocate for Petitioner.

Mr. MuhammadAtif Qureshi, Advocate for Respondent No. 3.

Date of hearing: 17.6.2014.

Judgment

Through this constitutional petition, the petitioner has challenged the judgment dated 8.10.2013 passed by Punjab Labour Appellate Tribunal-II, Multan.

1. The facts of the case are that the Respondent No. 3 was appointed as Assistant Lineman in WAPDA and was subsequently promoted as Lineman-II. Respondent No. 3 aggrieved by the imposition of major penalty of compulsory retirement initially filed a departmental appeal which was not responded to and, therefore, petitioner filed an Appeal No. 921(L)/C.S/2000 before Federal Service Tribunal which was subsequently withdrawn on 26.10.2001. The petitioner on 14.2.2007 filed a grievance petition before Punjab Labour Court No. 8, Bahawalpur against the imposition of major penalty of compulsory retirement. The Punjab Labour Court No. 8 dismissed the grievance petition filed by the petitioner through judgment dated 9.4.2010. Aggrieved by the judgment passed by Punjab Labour Court No. 8/Respondent No. 2 an appeal was filed before Punjab Labour Appellate Tribunal No. II and through impugned judgment the grievance petition filed by the petitioner was accepted. Hence, this writ petition.

2. The learned counsel for the petitioner argued that Punjab Labour Appellate Tribunal No. II/Respondent No. 1 while passing the impugned judgment did not consider the fact that the grievance petition was filed by the petitioner almost after seven years delay. It is further argued that the impugned judgment dated 8.10.2013 is based on surmises and conjectures; Punjab Labour Appellate Tribunal No. II while passing the impugned judgment completely disregarded the fact that being a Special Tribunal created under the special law it does not possess the inherent powers as are available to a Civil Court and since the grievance petition filed by the petitioner was barred by time Respondent No. I/Punjab Labour Appellate Tribunal No. II erred in law while accepting the grievance petition filed in the year 2007. It is further argued that grievance petition could not have been accepted as the petitioner after being imposed a major penalty of compulsory retirement has accepted his benefits as a full and final settlement.

3. On the other hand, the learned counsel appearing on behalf of Respondent No. 3 has vehemently opposed the arguments advanced by learned counsel for the petitioner and argued that since the order dated 22.4.2000 imposing penalty of compulsory retirement upon the petitioner was void and no limitation runs against the void order.

4. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record.

5. Section 46 of the Industrial Relations Ordinance, 2002 reads as under:--

"Redress of individual grievances.--(1) A worker may bring his grievance in respect of any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or collective bargaining agent, within one month of the day of which cause of such grievance arises."

(2) Where a worker brings his grievance to the notice of an employer himself or through his Shop Steward or collective bargaining agent, the employers shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.

(3) If an employer fails to communicate a decision within the period specified in sub-section (2) or, if a worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his collective bargaining agent or the Labour Court, as the case may be, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute.

Provided that a worker who desires to take the matter to the Labour Court, he shall do so within a period of two months from the date of communication of the employer or, as the case may be, from the expiry of the period specified in sub-section (2).

(4)………………………..

(5)………………………..

(6)………………………..

(7)………………………..

(8)………………………..

1. The perusal of this section provides that a workman may bring his grievance to the notice of his employer in writing either himself or through its Shop Steward or collective bargaining agent within one month of the day on which cause of such grievance arises; the employer in case the grievance is brought to his notice is under an obligation to communicate his decision to the notice of the employee within a period of 15 days; if an employer fails to communicate his decision within the period specified or if a worker is dis-satisfied with such decision the worker may take the matter to the Labour Court but he shall do so within a period of two months from the date of communication of the decision by the employer or as the case may be from the expiry of the period specified in sub-section (2) of Section 46 of the Industrial Relations Ordinance, 2002.

2. There is no denial to the fact that initially Respondent No. 3 filed the service appeal before Federal Service Tribunal which was withdrawn on 26.10.2001 and thereafter he remained silent for about five years; after a long slumber of these five years a grievance notice was served on 6.11.2006 and a grievance petition was filed on 14.2.2007. It is not denied by the learned counsel for Respondent No. 3 that respondent has received all his benefits from the petitioner.

3. It is an undeniable fact that jurisdiction of Labour Court/Tribunal created under the special statute is dependent upon the nature of the claim, person who files the claim, time during which it has been filed and the manner in which such claim has to be filed. These are all jurisdictional facts and assessment of these facts determines the jurisdiction of Labour Court as well as Labour Appellate Tribunal. Jurisdiction can be exercised by Labour Court/Tribunal when all the jurisdictional facts exist together.

4. It has been held in a judgment reported in NLR 1982 Labour 179 (Pakistan Mineral Development Corporation versus Amir Khan) that the Labour Court/Tribunal would have no jurisdiction to entertain a case where all the jurisdictional facts are not existing together. It has been specifically observed by the Division Bench that if a case has not been filed within prescribed time the Labour Court/Tribunal would have no jurisdiction to entertain such case.

5. In my opinion, Labour Court or Labour Appellate Tribunal are under an obligation to act within the scope of Industrial Relations Ordinance, 2002 and cannot exercise jurisdiction as a Civil Court; as soon as Labour Court or Labour Appellate Tribunal steps out of the four corners of a special law order/judgment passed would be result of defective or excessive exercise of jurisdiction. This Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 would always rectify the illegality and violation of law and undo the harm caused by the Court/Tribunal. It is apparent that the order passed by Respondent No. 1 is patently in violation of express provisions of law i.e. Section 46 of the Industrial Relations Ordinance, 2002. It is not right to say that the Tribunal which is in vested with the jurisdiction to decide a particular matter has the jurisdiction to decide it rightly or wrongly because the condition for the grant of jurisdiction is that it should decide the matter in accordance with law when the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it.

6. In my view, a petition to the labour Court is dependent upon a valid grievance notice. Before deciding the grievance petition/labour appeal, it is incumbent upon the labour Court as well as labour tribunal as to whether the grievance notice has been served within the prescribed period of limitation as service of notice precedes invocation of jurisdiction of labour Court. The grievance notice sent after an inordinate delay of more than 5 years instead of a prescribed period of 15 days in Section 46 of the Industrial Relations Ordinance, 2002 is not a valid grievance notice on the basis of which grievance petition could have been filed; and in case the grievance notice has not been served within the period stipulated under the provisions of a special law i.e. Industrial Relations Ordinance, 2002, the most significant of the jurisdictional fact would be missing while filing a grievance petition and non sending of a grievance notice is a defect which goes to the root of the case.

7. At this stage, it would not be out of place to mention here that Respondent No. 3 after imposition of major penalty of compulsory retirement had received of his benefits and was also receiving his pension from the petitioner. After receiving all his emoluments in full and final settlement Respondent No. 3 had also withdrawn his service appeal pending before Federal Service Tribunal on 26.10.2001. The accumulative effect of these factors would be that Respondent No. 3 was also estopped from claiming his reinstatement by filing a grievance petition in the year 2007 against the order imposing the penalty of compulsory retirement dated 22.4.2000. In this regard reference is made to the judgment of Hon'ble Supreme Court of Pakistan reported in 2013 PLC 219 (Independent Newspaper Corporation (Private) Ltd. Versus Punjab Labour Appellate Tribunal Lahore and others).

8. For what has been discussed above, this Court is of the considered opinion that Punjab Labour Appellate Tribunal No. II while passing the impugned order dated 8.10.2013 erred in law as it stepped out of four corners of Industrial Relations Ordinance, 2002. Rcsultantly, this petition is allowed. The impugned order dated 8.10.2013 is set aside.

(R.A.) Petition allowed

PLJ 2015 Lahore 59 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

MUHAMMAD TAHIR IQBAL--Petitioner

versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA), STATE BANK OF PAKISTAN, ISLAMABAD through Chairman and 4 others--Respondents

W.P. No. 15277 of 2012, heard on 7.7.2014.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(2) r/w. Art. 199(5)--Statutory duty--Maintainability of writ petition--Question of--Whether statutory body was a person within meaning of Art. 199(1)(a)(2) r/w Art. 199(5) of Constitution--Determination--A public authority performing public or statutory duty and carrying out its' transactions for benefit of public and not for private gain of profit. [P. 63] A

Removal from Service (Special Powers) Ordinance, 2000 (XVII of 2000)--

----Preamble & S. 10--Constitution of Pakistan, 1973, Art. 199--Fundamental right to fair trial--Right of appeal--Ultra vires of Constitution--Persons incorporation service shall have a right of appeal under Section 10 of Removal from Service (Special Powers) Ordinance, 2000 but subsequently employees were deprived of their right of appeal as same was held to be ultra vires of Constitution--Deprivation of such right of appeal would amount to judicial sanctification of all orders passed by departmental authorities awarding various penalties to employees and would also be violative of fundamental right to fair trial and due process as ordained in Art. 10-A of Constitution--Employees could invoke Art. 199 of Constitution to seek compliance of Removal from Service (Special Powers) Ordinance, 2000. [P. 64] B

Constitution of Pakistan, 1973--

----Art. 9--Right of access to justice--Fair and proper trial--Right of access to justice is a well recognized inviolable right enshrined in Art. 9 of Constitution and is equally found in doctrine of "due process of law"--Such right includes right to be treated in accordance with law, right to have a fair and proper trial and a right to have an impartial Court or Tribunal. [P. 64] C

Constitution of Pakistan, 1973--

----Art. 199--Removal from Services (Special Powers) Ordinance, (XVII of 2000), Ss. 2(b) & 3(1)--Constitutional Petition--Acts of misconduct, inefficiency and corruption--Instead of giving opportunity of personal hearing or conducting regular inquiry, major penalty of dismissed from service was imposed upon petitioner show-cause notice--Challenge to--Holding of a regular inquiry is a sine qua non when nature of allegation levelled against petitioner required recording of evidence--Imposition of major penalty of dismissal from service--Right of personal hearing was given to said official through letter and on basis of that personal hearing given to one, respondent had taken plea that since was a co-accused therefore it would be presumed that right of personal hearing has also been given to petitioner--Stance taken by respondents is un-acceptable--Neither petitioner has been given a right of personal hearing nor a regular inquiry has been conducted by competent authority; moreover, no reasons whatsoever have been given as to why requirement of holding of regular inquiry against petitioner has been dispensed with.

[P. 65 & 66] D, E, F & G

Mr.Qamar-uz-Zaman Butt, Advocate for Petitioner.

Mr.Faraz Samad, Legal Advisor for Respondents.

Date of hearing: 7.7.2014.

Judgment

Through this constitutional petition, the petitioner has invoked the extra ordinary constitutional jurisdiction of this Court while challenging the order dated 30.08.2012 passed by the Respondent No. 3.

1. Brief facts of the case are that the petitioner was appointed as Data Entry Operator on 09.12.2003 for a period of 5 years. A show-cause notice was served upon the petitioner on 23.6.2009 under Sections 2(b) and 3(1) of the Removal from Services (Special Powers) Ordinance, 2000 while attributing the following acts of misconduct, inefficiency and corruption to the petitioner:

"You had used the login of Rashid Mehmood, Office Assistant illegally and uploaded un-official documents on FTP for spreading it among the staff to form so called NADRA Union, which is clearly against prevention of Electronic Crime Ordinance, 2007. Thus act displayed by you is highly objectionable."

1. The petitioner replied to the said show-cause notice on 25.07.2009 and specifically negated the charge levelled against him and further requested the Respondent No. 3 to probe into the case to arrive at an appropriate conclusion.

2. Instead of giving any opportunity of personal hearing to the petitioner or conducting any regular inquiry, a major penalty of dismissal from service was imposed upon the petitioner vide office order dated 6.8.2009.

3. Aggrieved by the order of dismissal, the petitioner filed Writ Petition No. 7224/2009 which was disposed of by this Court on 11.07.2012 while directing the Chairman, NADRA to treat the writ petition as an appeal filed by the petitioner and decide the same in accordance with law, after affording an opportunity of hearing to the petitioner through a well reasoned and speaking order.

4. In pursuance to the order passed by this Court, a letter was communicated to the Deputy Director HR on 30.8.2012 informing that the Chairman/competent authority has rejected the departmental appeal filed by the petitioner, hence this writ petition.

5. The learned counsel for the petitioner while advancing his arguments submitted that the entire proceedings initiated against the petitioner were a result of mala fide; the allegations levelled through the show-cause notice dated 23.06.2009 were specifically denied by the petitioner and thus it was incumbent upon the authorities to hold a regular inquiry as the nature of allegations levelled against the petitioner required thorough probe. It has been further argued that while deciding the appeal, the Respondent No. 2 did not take into account of the fact that since a major penalty of dismissal from service had been imposed upon the petitioner, the same could not have been done without giving an opportunity of fair trial to the petitioner.

6. On the other hand, the legal advisor for the respondents raised a preliminary objection regarding the maintainability of the writ petition. It was argued that NADRA Employees (Service Regulations), 2002 were non-statutory in nature and therefore the petitioner could not invoke the constitutional jurisdiction of this Court.

It has been further argued that the petitioner was given an opportunity for hearing before imposition of major penalty of dismissal from service and there was no justification in holding a regular inquiry. The legal advisor for the respondents has relied upon a judgment reported in 2009 SCMR 444 (Ghulam Shabbir Sheikh versus Chief Executive Officer, Quetta Electric Supply Company (QESCO), Quetta and another) to strengthen his arguments.

1. I have considered the arguments advanced by the learned counsel for the parties and have also perused the record.

2. This Court would first advert to the question of maintainability of this writ petition.

3. The NADRA Employees (Service Regulations), 2002 have been framed in exercise of powers conferred under Section 45 of NADRA Ordinance, 2000.

Section 45 of the NADRA Ordinance, 2000 reads as under:--

"Regulations.--(1) The Authority may, by notification in the official Gazette, make regulations, not inconsistent with the provision of this ordinance or the rules, for the carrying out of its functions under this Ordinance and any other matter for which, under this Ordinance provision may be made by regulations.

(2) Without prejudice to the generality of the foregoing powers, such regulations may provide for appointment of Registration Officers, members of its staff, experts, consultants, advisers and other officers and employees and the terms and conditions of their service:

Provided that, subject to the provision of Section 40 till the time any amendments are made or any fresh regulations are made in this behalf, any rules or regulations governing the terms and conditions of their service and in force at the time of the establishment of the Authority shall be applied as nearly as practicable in the same manner as before to the extent the same are not inconsistent with the provisions of this Ordinance, with any references to the Directorate General of Registration, or any competent authority by whatever nomenclatures therein to be deemed to be a reference to the Authority."

1. The NADRA Employees (Service Regulations), 2002 have been published in the Gazette of Pakistan on November, 11th 2002 through a statutory notification. Since, NADRA Employees (Service Regulations), 2002 have been framed by the authority in exercise of powers conferred under Section 45 read with Section 35 and Section 37 of the NADRA Ordinance, 2000. Such powers have been exclusively conferred upon the authority and are not subject to the approval of the Federal Government or any other authority; and are therefore statutory in nature.

2. It is not out of place to mention here that while determining, the maintainability of writ petition, the Courts generally apply the "function test" to consider whether a statutory body was a "person" within the meaning of Article 199(1)(a)(2) read with Article 199(5) of the Constitution of Islamic Republic of Pakistan. A public authority performing public or statutory duty and carrying out its transactions for the benefit of the public and not for private gain of profit. The Honourable Supreme Court of Pakistan in a judgment reported in PLD 1975 Supreme Court 244 (Salahuddin and 2 others versus Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others) has laid down the functional test to assess whether a body or authority is a person within the meaning of Article 199 of the of the Constitution of Islamic Republic of Pakistan, 1973 and observed as under:

"The primary test must always be whether the function entrusted with the organization or person concerned are indeed functions of the state involving some exercise of sovereign or public power; whether the control of the organization vests in a substantially manner in the hands of the Government; and whether the bulk of the funds is provided by the state. If these conditions are fulfilled when the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."

1. The Honourable Supreme Court of Pakistan in a judgment reported in 2013 SCMR 1707 (Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed) while discussing the effect of imposition of penalty under Removal from Service (Special Powers) Ordinance, 2000 has observed as under:

"Although the rules/regulations of statutory organization might have been non statutory but there was a statutory intervention in the shape of Removal from Service (Special Powers) Ordinance, 2000 and the employees had to be dealt with under the said law."

1. The Honourable Supreme Court went on to observed in the same judgment that the Legislative intent in promulgation of Removal from Service (Special Powers) Ordinance, 2000 was that the persons incorporation service shall have a right of appeal under Section 10 of the Removal from Service (Special Powers) Ordinance, 2000 but subsequently employees were deprived of their right of appeal as the same was held to be ultra vires of the Constitution by the Hon'ble Supreme Court in the cases of Muhammad Mubeen-ul-Islam and others. Versus Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 Supreme Court 602 (Muhammad Mubeen-us-Salam and others versus Federation of Pakistan through Secretary, Ministry of Defence and others) and Muhammad Idrees versus Agricultural Development Bank of Pakistan and others (PLD 2007 Supreme Court 681). Deprivation of such right of appeal would amount to judicial sanctification of all orders passed by the departmental authorities awarding various penalties to the employees and would also be violative of fundamental right to fair trial and due process as ordained in Article 10-A of Constitution of Islamic Republic of Pakistan. Employees in question could invoke Article 199 of the Constitution to seek compliance of Removal from Service (Special Powers) Ordinance, 2000.

2. In view of above discussion, this Court holds that the writ petition is maintainable.

3. Now, I would discuss the propriety of the impugned orders, dated 06.08.2009 and 30-08-2012. It is established from record that a show-cause notice was issued to the petitioner on 23.06.2009; reply was filed by the petitioner and thereafter major a penalty of dismissal from service was imposed upon the petitioner through order dated 06.08.2009.

4. The intention of the Legislature while promulgating Removal from Service (Special Powers) Ordinance, 2000 inter alia was that the matters for "person in corporation service" should be dealt with in accordance with provisions of said law and to ensure a fair trial it was inter alia provided in the said Ordinance that unless specifically exempted by a reasoned order, the competent authority shall hold a regular inquiry against an employee accused of misconduct and he shall have a right of appeal.

5. The right of access to justice is a well recognized inviolable right enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan and is equally found in the doctrine of "due process of law". This right includes the right to be treated in accordance with law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal.

The term "due process of law" is summarized as follows:--

• A person shall have due notice of proceedings which effect his rights.

• The person shall be given reasonable opportunity to defend.

• That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of its honesty and impartiality; and

• That it is a Court of competent jurisdiction.

1. The due process of law clause has now the specifically enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan which is reproduced below:--

"10-A. -- Right to fair trial.--For the determination of a civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process".

1. I must observe that holding of a regular inquiry is a sine qua non when the nature of allegation levelled against the petitioner required recording of evidence. In this regard, I am fortified by a judgment of the Honourable Supreme Court of Pakistan reported as 2011 PLC (C.S.) 1352 (Mst. Firdous Batool versus Executive District Officer and another).

2. The Honourable Supreme Court of Pakistan in a judgment reported in 2009 SCMR 339 (Muhammad Haleem and another versus General Manager (Operation) Pakistan Railways Headquarter, Lahore and others) has observed that where the charges could only be established by producing evidence, the authority could not dispense with the holding of inquiry and without specifying as to why there was no need for holding a regular inquiry and how the charges /misconduct would be proved without holding an inquiry. Holding of inquiry is essential to prove the charges of fact and the same cannot be dispensed with.

3. The similar view has been taken by the Honourable Supreme Court of Pakistan in a judgment reported in 2012 PLC (C.S.) 728 (Muhammad Afzal versus Regional Police Officer, Bahawalpur and others).

4. The legal advisor for the respondents has relied upon 2009 SCMR 444 but, with due deference it is observed that the judgment relied upon by the legal advisor for the respondents is distinguishable as in that case the civil servant was proceeded departmentally and he was duly informed of charges levelled against him, thereafter a high powered committee was constituted to probe into the matter. Civil Servant was afforded reasonable opportunity of personal hearing before imposition of penalty and the same was considered enough to provide opportunity of defence.

5. In the present case, a show-cause notice was issued on 23.06.2009, a reply to the said show-cause notice was given on 25.07.2009 and without giving any opportunity of personal hearing or holding of regular inquiry which as has been observed above is a sine qua non before imposition of major penalty of dismissal from service, the major penalty of dismissal from service was imposed on the petitioner on 6.8.2009. The petitioner has not even been given a right of personal hearing. The respondents with their parawise comments have attached a show-cause notice issued to one Rashid Mehmood and thereafter right of personal hearing was given to the said official through letter dated 30.09.2009 and on the basis of that personal hearing given to one Rashid Mehmood, the respondents have taken the plea that since Rashid Mehmood was a co-accused therefore it would be presumed that the right of personal hearing has also been given to the petitioner.

6. In my opinion, the stance taken by the respondents is un-acceptable. Neither the petitioner has been given a right of personal hearing nor a regular inquiry has been conducted by the competent authority; moreover, no reasons whatsoever have been given as to why the requirement of holding of regular inquiry against the petitioner has been dispensed with.

7. For what has been discussed above, this writ petition is Accepted. It is declared that the petitioner has been denied a fundamental right to have a fair trial as ordained in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Resultantly, the order of dismissal from service dated 6.8.2009 and the order dated 30.8.2012 are declared to have been passed without lawful authority. The case is remitted back to the competent authority to pass a fresh order in pursuance to Show Cause Notice dated 23.6.2009 after holding a regular inquiry. However, the petitioner would not be entitled for any back benefits.

(R.A.) Petition accepted

PLJ 2015 Lahore 67 [Multan Bench Multan]

Present: MuhammadQasim Khan and Sikandar Zulqarnain Saleem, JJ.

GHULAM FARID--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 3079 of 2014, decided on 22.5.2014.

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

----S. 540--Constitution of Pakistan, 1973, Art. 199--Summoning as Court witness--Jurisdiction to re-summon and re-examine any witness--Dismissal of application was devoid of powers to summon a person and examine as witness--No innocent person is punished--Validity--Court of criminal jurisdiction enjoys plenary powers to summon a person and examine him as a witness at any stage of trial under Section 540, Cr.P.C. when evidence of such person appears to Court essential to do just decision of case--Trial Court is vested with jurisdiction to re-examine any witness and only requirement is that his/her examination would be essential for just decision of case--Court cannot be expected to sit as silent spectator even when it notices non-production of certain witnesses to be likely to result in miscarriage of justice--Summoning of Court witness under Section 540, Cr.P.C. would not be termed or regarded as a step towards filling of gaps or lacunas as question of prejudice would also not arise because in doing so Court would be giving effect to a provision of law. [Pp. 69 & 70] A, B, C & E

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 3--Nominated in FIR--Witness was injured during occurrence--Presence cannot be doubted in any manner, her young age at time of occurrence that by itself would not ipso facto render her incapable of becoming a witness under Art. 3 of Qanun-e-Shahadat Order, 1984--Being an inmate of house where occurrence took place, she is most important witness to be examined at trial and her examination would definitely advance interest of justice. [P. 70] D

Child Witness--

----Intellect of child witness--Not requirement of law--Court was quite competent to give its observation with regard to intellect of witness.

[P. 71] F

Child Witness--

----Whether can understand and answer in rational manner--Child of tender years is not by reason of his/her youth, as a matter of law, absolutely disqualified as a witness--No general rule of universal application can be laid down that in no case the evidence of a child witness be believed--Even the judge has inherent powers to ensure the justice is done, in cases when he smells foul play trial judge would not only be justified, but would in fact be duty bound, in the interest of justice, to ascertain the facts himself with the application of judicial mind. [P. 71] G, H & I

Malik Ali Muhammad Dhol and Khalid Abdullah Khan Chingwani, Advocates for Petitioner.

Qazi Sadar-ud-Din, Advocate for Respondents No. 3 to 5.

Mr. Muhammad AliShahab, Deputy Prosecutor General for State.

Date of hearing: 22.5.2014.

Order

By means of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, of the Code of Criminal Procedure, 1898, Ghulam Farid petitioner has called in question the order dated 9.7.2013 passed by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan whereby Mst. Rukhsana Bibi PW was given up as she failed to give rational answers to the questions and the order dated 11.2.2014 has also been impugned through the instant petition whereby an application moved by the petitioner for summoning of Mst. Rukhsana Bibi as a Court witness has been turned down.

1. The facts leading to institution of instant petition are that petitioner is complainant of a private complaint "Kundan Mai vs. Ghulam Farid" pending adjudication before the learned Special Judge Anti-Terrorism Court, Dera Ghazi Khan. Mst. Rukhsana Bibi is one of the victim of occurrence reported through the private complaint; as she allegedly sustained burn injuries result of sprinkling of acid. On 9.7.2013 Mst. Rukhsana Bibi star jnjured witness of the complaint was called to stand in the witness box; before recording of her evidence she was questioned to ascertain whether she was capable of giving evidence by understanding the nature of questions and could give rational answers thereto, being minor. When questions were being asked, counsel for the complainant at his own stated before the learned trial Court that Mst. Rukhsana Bibi being minor is unable to give rational answers, whereupon she was given up on the basis of that statement. Thereafter an application was submitted by complainant/petitioner under Section 540, Cr.P.C. read with Section 338-F PPC and Section 3 of Nafaz-e-Shari'ah Act, 1991, which has been declined vide impugned order dated 11.2.2014 by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan. Hence, this petition.

2. In support of this petition, learned counsel for the petitioner has contended that Mst. Rukhsana Bibi daughter of Ghulam Farid petitioner appeared before the Court and her cursory statement was recorded, wherein, she disclosed all details of the occurrence very confidently and when later on she appeared before the learned trial Court as PW-2, three questions were put to her and the learned counsel for the complainant without any cogent reason gave-up her evidence. The learned counsel submits that Mst. Rukhsana Bibi was the star witness of the case as she was also injured during the occurrence, therefore, the complainant moved an application under Section 540, Cr.P.C. for re-summoning her, but the learned trial Court dismissed the said application through the impugned order dated 11.02.2014. Further submits that when Mst. Rukhsana Bibi appeared in the witness box as PW-2, the questions put to her were not relevant to assess her mental approach and maturity. Adds that it was not the order of the learned trial Court that witness is not mature enough to understand the questions put to her and it was only the statement of learned counsel for the complainant. Lastly, argued that under Section 540, Cr.P.C., the trial Court had ample jurisdiction to re-summon and re-examine any witness.

3. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for Respondents No. 3 to 5 has vehemently opposed this petition on various grounds.

4. We have heard the learned counsel for the parties and also gone through the impugned orders as well as the relevant provisions of law with due care and caution.

5. The dismissal of application filed by the petitioner is devoid of judicial consideration. The Court of criminal jurisdiction enjoys plenary powers to summon a person and examine him as a witness at any stage of trial under Section 540, Cr.P.C. when evidence of such person appears to the Court essential to do the just decision of the case. For ready reference Section 540, Cr.P.C. is reproduced as under:

"540. Power of summon material witness or examine persons present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

From the perusal of the above, it demonstrates that Section 540, Cr.P.C. is divided into two parts first is discretionary in nature whereas the second is mandatory. Solitary purpose of judicial proceedings in criminal cases is to find out the truth and to arrive at a correct calculation and to see that no innocent person is punished. If it appears essential to the Court that the evidence is necessary for just decision of the case, the trial Court is vested with jurisdiction to re-examine any witness and the only requirement is that his/her examination should be essential for the just decision of the case. Mst. Rukhsana Bibi was the star witness of the case as she was also injured during the occurrence and her statement was essential for just conclusion of the case. Court cannot be expected to sit as silent spectator even when it notices non-production of certain witnesses to be likely to result in miscarriage of justice. There is no doubt about it that Mst. Rukhsana's name is mentioned in the FIR and she was also injured during the occurrence. Her presence, therefore, cannot be doubted in any manner, her young age at the time of occurrence that by itself would not ipso facto render her incapable of becoming a witness under Article 3 of Qanun-e-Shahadat Order, 1984. In such a situation on being an inmate of the house where the occurrence took place, she is the most important witness to be examined at the trial and her examination would definitely advance the interest of justice. Main purpose of entire judicial proceedings is to find out the truth and to arrive at the correct decision. Second part of the section is obligatory on the Court to examine such a witness ignoring technical and formal obligations.

1. Summoning of Mst. Rukhsana under Section 540, Cr.P.C. would not be termed or regarded as a step towards filling of gaps or lacunas as question of prejudice would also not arise because in doing so Court would be giving effect to a provision of law. Moreover, in 'Adab-ul-Qazi'it has been stated as under:--

جو شخص تمہارے سامنے یہ دعوی کرے کہ اس کے پاس اپنے موقف کی تائید میں کوئی حق بات موجود ہے جو اس وقت وہ پیش کرنے سے قاصر ہے تو اس کو اتنی مہلت دہ کہ وہ اس بات کو پیش کر سکے، اس مہلت کے اندر اندر اگر وہ کوئی ثبوت لے آیا تو وہ اس کے بنیاد پر اپنا حق لے لے گا۔ ورنہ بصورت دیگر تمہارے لیے جائز ہو گا۔ کہ تم اس کے خلاف فیصلہ دے دو، اس لئے کہ ایسا کرنے سے اس کو کوئی عذر پیش کرنے کا موقعہ نہ ملے گا اور اس کی بے بصیرتی اس پر واضح ہو جاے گی۔

مسلمان سب کے سب عادل ہیں اور ایک کی گواہی دوسرے کے خلاف قابل قبول ہے سوائے اس شخص کے جس کو کوئی سزائے حد دی گئ ہو، یا اس کے بارے میں یہ تجربہ ہو چکا ہو کہ وہ جھوٹی گواہی دیتا ہے یا اس ﴿کی جانبداری﴾ کے بارے میں اس وجہ سے کوئی بدگمانی کی جارہی ہو کہ وہ صاحب معاملہ کا ﴿جس کے حق میں گواہی دے رہا ہے﴾ کوئی رشتہ دار یا تعلق دارہے۔

1. The Honourable Judges of Supreme Court of Azad Jammu & Kashmir in Qadeer Hussain vs. The State (1995 P.Cr.LJ. 803) have observed that rule enunciated in Article 3 of The Qanun-e-Shahadat Order, 1984, is not an absolute or inflexible rule. It means that observing intellect of a child witness in shape of questions and answers is not the requirement of law. The Court was quite competent to give its observation with regard to the intellect of the witness. It would mean that only requirement is the satisfaction of the Court. It may be pointed out that in the instant case, the child witness who was produced by the prosecution in support of its case was of the age of 10/11 years. She was not of the age so as not to understand the nature of questions put to her. Even otherwise, a child of tender years is not by reason of his/her youth, as a matter of law, absolutely disqualified as a witness. There is no precise age which determines the question of competency of a person to give evidence. In case of a child witness it is immaterial whether he/she can understand and answer in a rational manner the questions put to him/her. No general rule of universal application can be laid down that in no case the evidence of a child witness be believed. Each case depends upon its particular facts and circumstances. Moreover, it was not the order of the learned trial Court that witness is not mature enough to understand the questions put to her rather her evidence was given up on the statement of learned counsel for the complainant. Even the judge has inherent powers to ensure the justice is done, in cases when he smells foul play the learned trial judge would not only be justified, but would in fact be duty bound, in the interest of justice, to ascertain the facts himself with the application of judicial mind. In the present case there was enough material before the learned trial Judge to come to the conclusion that in giving up the sole injured witness, the complainant counsel had acted rather recklessly and perhaps at the instigation, if not in collusion with, persons interested in stifling the prosecution

case. Thus, the trial Court has erred in law by not taking into consideration the cursory statement of Mst. Rukhsana Bibi recorded by the learned Judge Anti-Terrorism Court earlier on 16.5.2012.

1. For what has been stated above we accept this petition, set aside the impugned orders and the learned trial Court is directed to examine Mst. Rukhsana Bibi as a prosecution witness who was given up by the counsel for the complainant being minor.

(R.A.) Appeal accepted

PLJ 2015 Lahore 72 [Multan Bench Multan]

Present: Arshad Mahmood Tabassum, J.

MUHAMMAD HASHIM--Appellant

versus

MUHAMMAD MEVA--Respondent

R.F.A. No. 175 of 2011, heard on 24.6.2014.

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

----S. 148--Ex-parte evidence--Discretion with Court--Suit for recovery on basis of pronote, borrowed an amount--Application for leave to appear and defend suit, was allowed subject to furnishing surety bond within specific time--Failed to submit surety bond--Application for extension in time for submitting surety bond, dismissal of--Validity--There is no denial of fact that under Section 148 of CPC it is discretionary with Court that where any period is fixed or granted for doing of any act it may enlarge such period--However, it is well settled by now that discretion has to be exercised by a Court of law judiciously and in light of circumstances of each case--Appellant was directed to submit surety bond within ten days--Appellant in a very casual manner requested for extension in time which request of his did not find favour with trial Court--Application for extension in time was dismissed.

[Pp. 74 & 75] A & B

2011 SCMR 659 rel.

Syed Jawad Hussain Jafari, Advocate for Appellant.

Malik Ali Muhammad Dhol, Advocate for Respondent.

Date of hearing: 24.6.2014.

Judgment

This R.F.A. has been directed against the judgment and decree dated 20.4.2011, passed by the learned Additional District Judge, D.G. Khan whereby he decreed the suit of the respondent-plaintiff for recovery of Rs.7,50,000/- on the basis of promissory note dated 27.7.2009.

1. Briefly, the facts of the case are that the respondent on 11.1.2011, instituted suit for recovery of Rs.7,50,000/- on the basis of pronote dated 27.7.2009, against the appellant, averring in the plaint that on 27.7.2009, the appellant had borrowed an amount of Rs.7,50,000/- payable on demand and executed a pronote and receipt dated 27.7.2009; that when the respondent-plaintiff demanded repayment of the said amount, the appellant delayed the same on one pretext or other and ultimately refused to repay the same, hence the suit. The appellant submitted application for leave to appear and defend the suit on 15.2.2011, which was allowed vide order dated 17.3.2011, subject to furnishing surety bond in the sum of Rs.7,50,000/- within ten days i.e. on 1.4.2011. The appellant failed to submit surety bond as directed by the learned trial Court, instead on 1.4.2011 submitted application for extension in time for submitting u surety bond on the following ground:

یہ کہ جس شخص نے مقدمہ ھذا میں سائل کی ضمانت دی تھی وہ بیمار ہو گیا جس کی وجہ سے وہ پٹواری حلقہ سے گوشوارہ ملکیت حاصل نہ کر سکا۔ اس لئے سائل مقدمہ ھذا میں ضمانت نامہ داخل نہ کر سکا۔

The said application was however dismissed on the same day by the learned trial Court with the following observations:--

"On 17.3.2011, leave to defend to Muhammad Hashim defendant was granted allowing him to file written statement subject to furnishing surety bond in the sum of Rs.7,50,000/-. Today, neither the surety bond has been filed nor written statement tendered on behalf of the defendant, rather an application has been moved for extension of time on simple score that surety has become ill. The name of surety and illness certificate has not been put up. Moreover, the application is not supported even by an affidavit. This Court has already granted sufficient time of two weeks for filing written statement as well as surety bond, but the defendant failed to avail the opportunity granted to him. Application in hand being devoid of legal force is hereby rejected and consequently, the right of the defendant to file written statement and surety bond is hereby closed, requiring the plaintiff to produce his ex-parte evidence on 6.4.2011."

1. The learned trial Court then recorded ex-parte evidence of the respondent-plaintiff and then decreed the suit vide impugned judgment and decree, hence this RFA.

2. Learned counsel for the appellant has argued that the appellant had failed to submit surety bond due to the circumstances which were beyond his control and that he had submitted application for extension in time within the time which was fixed for submission of surety bond, hence the learned trial Court was obliged to consider the said application sympathetically and to extend time for submission of surety bond in the interest of justice and that by not doing so, the learned trial Court has committed an illegality rendering the impugned judgment and decree as illegal. He has relied upon the case titled "Gulzar vs. Bashir Akhtar and 2 others" (2004 CLC 1518).

3. Conversely learned counsel for the respondent has fully supported the impugned judgment and decree.

4. Heard. Record perused.

5. There is no denial of the fact that under Section 148 of the, CPC it is discretionary with the Court that where any period is fixed or granted for doing of any act it may enlarge such period. However, it is well settled by now that discretion has to be exercised by a Court of law judiciously and in the light of circumstances of each case. In the instant case, the appellant was directed to submit surety bond within ten days i.e. by 1.4.2011. It was for the appellant to have shown to the Court that any justifiable circumstance did exist which prevented him from submitting the surety bond in time and which necessitated extension in time for that purpose. The application for extension in time is available on record which shows that in Para No. 3 of the said application (reproduced above) the appellant has mentioned that the person who had undertaken to submit surety bond on his behalf had fallen ill, but the appellant did not mention name of such person. So much so that the said application was not even accompanied by an affidavit in support of the facts stated therein. It has clearly been provided in Rule 2. Chapter 1-E of the High Court Rules and Orders, Volume-V that an assertion contrary to or outside the record or not supported by evidence already on record should be supported by an affidavit. The exact text of Rule 2 supra reads as under:--

| | | | --- | --- | | When affidavits necessary | 2. When a memorandum of appeal, cross-objection on appeal, application for review or petition for revision or any other application or petition presented in a suit or appeal under the Code of Civil Procedure, or in a proceeding to which Section 141 of the Code |

| | | | --- | --- | | | applies, contains an assertion of any fact or facts contrary to or outside the record, or not supported by evidence already on the record, such assertion shall be supported by one or more affidavits. |

Thus it appears that the appellant in a very casual manner requested for extension in time which request of his did not find favour with the learned trial Court. These facts are duly mentioned in the order dated 1.4.2011, passed by the learned trial Court whereby the application for extension in time was dismissed. The said order, therefore, calls for no interference. Reliance in this regard may be placed on the case titled Muhammad Ramzan and others vs. Ghulam Qadir (2011 SCMR 659).

1. On dismissal of the application for extension in time filed by the appellant, the learned trial Court recorded ex-parte evidence of the respondent-plaintiff who produced the scribe of the pronote, namely, Sh. Kaleem Qureshi as PW-1. The respondent-plaintiff himself entered the witness-box as PW-2 and produced Irshad Hussain as PW-3, who also supported the claim of the respondent-plaintiff. It is also noteworthy that even the appellant had not denied execution of the pronote and his signatures thereon, in his application for leave to appear and defend the suit. Thus the learned trial Court after proper application of mind decreed the suit of the respondent-plaintiff to which no exception can be taken. This appeal, therefore, fails and the same is hereby dismissed.

(R.A.) Appeal dismissed

PLJ 2015 Lahore 75 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD AMIN--Petitioner

versus

JUDGE FAMILY COURT, SAHIWAL and 3 others--Respondents

W.P. No. 2956 of 2014, decided on 12.3.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 13(3) & 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for maintenance, decreed--Procedure to enforce decrees--Judgment debtor did not abide by undertaking and did not pay any amount--Asserted and produced before executing Court--Managed surety bond--Discretion was to be exercised at time of passing decree--Decree relating to money can be executed by Family Court only in manner laid down in Land Revenue Act, 1967--Validity--Money decree is to be recovered as arrears of land revenue only if Court so directs at time of passing decree--If no such direction has been made by Court it may follow any procedure thereafter to implement its money decree, including arrest of judgment-debtor and attachment of his property--Executing Court resort to attaching and sale of property belonging to surety--Surety is as much bound by his undertaking as was, is judgment-debtor--Both are collectively and severally liable to make payment to decree-holders--If judgment-debtor is sent behind bars, such fact by itself would not absolve surety of his liability--At time, he wanted to save skin of judgment-debtor, who is admittedly his close relative--In other words, be stuck his neck out and now he cannot be allowed to turn round to evade his liabilities arising from his being surety for judgment-debtor--Petition was dismissed.

[Pp. 78] A, B, C & D

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Date of hearing: 12.3.2014.

Order

Through this petition, the petitioner has assailed the validity of the order dated 19.2.2013 passed by the learned Judge Family Court, Sahiwal, whereby the application of the petitioner seeking to absolve him of the liability arising out of a surety bond executed by him, was dismissed.

1. The facts, in brief, are that Mst. Abida Kausar and Mst. Sajida Kausar, the minors (Respondents Nos. 2 and 3) had instituted a suit for maintenance against Riaz Ahmad, Respondent No. 4, their father. The suit was decreed by the learned Judge Family Court, Sahiwal vide judgment and decree dated 23.2.2008. All in all, the aforementioned Riaz Ahmad was ordered to pay an amount of Rs.40,8000/- to the minors by way of maintenance, and he was ordered to pay future maintenance at the rate of Rs.6000/- per month. Since the judgment-debtor/Respondent No. 4 herein failed to pay the decretal amount to the decree-holders, an execution petition was filed by them. On 03.2.2012, the judgment-debtor was arrested and produced before the learned Executing Court. He paid an amount of Rs. 10,000/- to the decree-holders. As regards the remaining amount, he managed a surety bond. In consequence thereof, he was ordered to be released forthwith.

2. In point of fact, the petitioner herein stood surety for Riaz Ahmad, the judgment-debtor. He filed the surety bond on a stamp paper worth Rs.100/-. As per his undertaking, the petitioner undertook to pay an amount of Rs.500,000/- to the decree-holders in the event of non-payment of the decretal amount to them by the judgment-debtor. He gave an undertaking that both his person and property would be liable for the same. In addition to executing the surety bond in writing, the petitioner got recorded his statement to the above effect.

3. Since the judgment-debtor did not abide by his undertaking and did not pay any amount, after making payment of Rs. 10,000/- to the decree-holders on 03.2.2012, the learned Executing Court was constrained to adopt coercive measures against him. Resultantly, on 26.11.2013, he was ordered to be lodged at Central Jail, Sahiwal until his paying the decretal amount to the decree-holders.

4. At the same time on 21.1.2014, i.e., 54 days after the aforementioned order passed by the learned Executing Court, the present petitioner came up with an application, requesting that he be allowed to withdraw his surety bond executed in favour of the judgment-debtor, Riaz Ahmad, thereby absolving him of liability arising out of it. He took the plea that he had simply stood surety for the judgment-debtor and he was under the impression that in the event of non-payment on the part of the judgment-debtor, he would not be personally liable for the decretal amount. After considering all of his pleas, the learned Executing Court did not find any merit in them, and his application was dismissed by it by passing a detailed, well-reasoned and well-argued order dated 19.2.2014. In his order, the learned Executing Court dealt with each and every argument made on behalf of the petitioner. It was observed by the learned Executing Court that it may adopt any procedure to execute its own decree and that it is not bound by any technical provision of any other procedure laid down in any other statute.

5. The learned Executing Court is not wide of the mark in observing that it may adopt any procedure to enforce the decrees passed by it. As a matter of fact, Section 17 of the West Pakistan Family Courts Act, 1964, excludes the application of the Civil Procedure Code, 1908 except Sections 10 and 11 thereof. Therefore, the detailed procedure set out in Order XXI, CPC laid down by the legislature to execute civil decrees need not be followed by a Family Court. Be that, as it may, Section 13 of the West Pakistan Family Courts Act, 1964 provides for the mode and manner in which a Family Court shall pass a decree. Sub-section (3) of Section 13 (ibid) read as under:

"Where a decree relates to the payment to money and the decretal amount is not paid within the time specified by the Court, (not exceeding thirty days) the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree-holder."

1. A perusal of the afore-quoted provision of law shows that the Family Court concerned has been vested with the discretion as to how it would order the recovery of a money decree passed by it. But this discretion is to be exercised at the time of passing a decree. Of late, a wrong notion is taking hold among the legal circles that the decree relating to money can be executed by the Family Court only in the manner laid down in the Land Revenue Act, 1967. It is time that this misconception was dispelled/removed.

2. The very wording in which sub-section (3) of Section 13 of W.P. Family Courts Act, 1964 is couched makes it obvious that the money decree is to be recovered as arrears of land revenue only if the Court so directs at the time of passing the decree. And if no such direction has been made by the Court concerned, it may follow any procedure thereafter to implement its money decree, including the arrest of the judgment-debtor and attachment of his property.

3. This brings me to the argument of the learned counsel for the petitioner that the learned Executing Court is to first attach the property of the judgment-debtor and if the amount realised from its sale is not found sufficient to meet the demand of the decree-holders, only then can the learned Executing Court resort to attaching and sale of the property belonging to the surety. With respect to him, I am not persuaded to agree with him. The surety is as much bound by his undertaking as was, is the judgment-debtor. Both are collectively and severally liable to make payment to the decree-holders. And if the judgment-debtor is sent behind the bars, this fact by itself would not absolve the surety of his liability.

4. I have carefully looked at the terms of the undertaking given by the petitioner recited in the surety bond furnished by him to the learned Executing Court. I have also examined his statement made by him at the time of furnishing the surely bond. They lead to the inevitable conclusion that the petitioner was quite conscious of his liabilities. At the time, he wanted to save the skin of the judgment-debtor, who is admittedly his close relative. In other words, he stuck his neck out and now he cannot be allowed to turn round to evade his liabilities arising from his being surety for the judgment-debtor, namely, Riaz Ahmad.

5. For what has been stated above, there is no merit in the instant petition, which is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 79 [Multan Bench Multan]

Present: Mahmood Ahmed Bhatti, J.

Mst. SHAZIA--Petitioner

versus

SOHAIL NAZIR KHAN--Respondent

T. Appln. No. 98-C of 2013, decided on 17.3.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 25-A--Civil Procedure Code, (V of 1908), S. 151--Transfer of family suits--Suits were consolidated to avoid risk of passing contradictory judgments by two Courts--Validity--It is not so easy for a lady to travel alone to another District to pursue a family case--Besides, she would have to bear travel expenses--It is always desirable that family suits are tried, heard and decided by one and same Family Court so as to avoid conflicting judgments.

[Pp. 80] A & B

Nemo for parties.

Date of hearing: 17.3.2014.

Order

Mst. Shazia, the petitioner filed this petition under Section 25-A of W.P. Family Courts Act, 1964, seeking withdrawral and transfer of a suit for restitution of conjugal rights titled "Sohail Nazir v. Mst. Shazia Zamurad" pending in the Court of learned Judge Family Court, Layyah to the Court of learned Judge Family Court Kot Addu, District, Muzaffargarh, where her suit for maintenance is pending adjudication.

1. A perusal of the documents annexed to the petition shows that Mst. Shazia instituted a suit for maintenance, recovery of dower as well as recovery of dowry articles on 30.01.2013. The suit is said to be pending in the Court of learned Judge Family Court, Kot Addu, District Muzaffargarh. It seems that Sohail Nazir respondent did not take it lying down. He came up with a suit for restitution of conjugal rights. This suit was instituted by him on 14.2.2013, i.e., subsequent to the suit filed by Mst. Shazia. This made the petitioner rush to this Court to file the instant petition.

2. The very sequence of events shows that the second suit for restitution of conjugal rights was instituted by Sohail Nazir, respondent as a counterblast to the one instituted by Mst. Shazia. She has expressed the apprehension that if she would go to Layyah to pursue the case filed by the respondent, her life would be endangered. Besides, it would put her to a lot of inconvenience. On the other hand, Sohail Nazir, respondent is not likely to suffer any hardships, and if both the suits instituted by the parties to this petition are consolidated, it would also avoid the risk of passing contradictory judgments by the two Courts.

3. I have pondered over the matter, and am of the firm view that the request made by Mst. Shazia is quite reasonable. Regardless of the assertions made by her in the petition, the fact remains that it is not so easy for a lady to travel alone to another District to pursue a family case. Besides, she would have to bear the travel expenses. Be that as it may, it is always desirable that family suits are tried, heard and decided by one and the same learned Judge Family Court so as to avoid conflicting judgments.

4. In view of the above, the suit titled "Sohail Nazir v. Mst. Shazia Zamurad" for restitution of conjugal rights pending trial at Layyah is withdrawn and transferred to the Court of learned Judge Family Court, Kot Addu, District, Muzaffargarh, where the suit of the petitioner for maintenance, recovery of dower and dowry articles is pending adjudication.

5. Since the suit for maintenance instituted by the petitioner has been pending adjudication since 30.1.2013, and has not been decided within six months, as is required under Section 12-A of W.P. Family Courts Act, 1964, the learned Judge Family Court, Kot Addu, District, Muzaffargarh seized with the suits would make sure that the proceedings in both the suits are carried out expeditiously, bringing them to a close within a month from the receipt of this order. Disposed of.

(R.A.) Petition disposed of

PLJ 2015 Lahore 81 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

QADEER AHMAD KHAN, EX-PATWARI--Petitioner

versus

DISTRCIT COORDINATION OFFICER/DISTRICT COLLECTOR, SAHIWAL DIVISION, SAHIWAL--Respondent

W.P. No. 5598 of 2014, decided on 5.5.2014.

Punjab Employees Efficiency, Discipline and Accountability Act, 2006--

----S. 16--Constitution of Pakistan, 1973, Arts. 199 & 212--Major penalty of compulsory retirement--Power of judicial review--Not availed adequate and efficacious remedy--Jurisdictional bar--Validity--Power of judicial review can only be exercised if High Court has jurisdiction to adjudicate upon matter--Even if order is coram non judice or amount to colourable exercise of powers, only remedy available to petitioner is to have recourse of filing a departmental appeal--Petition was dismissed. [P. 84] A

Mr. MuhammadIqbal Khan, Advocate for Petitioner.

Mr. Aziz-ur-Rehman Khan, AAG on Court’s Call.

Date of hearing: 29.4.2014.

Order

Through this constitutional petition, the petitioner has challenged the order dated 16.4.2014 through which a major penalty of compulsory retirement has been imposed upon the petitioner under Section 4(b)(iv) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

1. The learned counsel for the petitioner argued that major penalty of compulsory retirement cannot be imposed upon the petitioner as the petitioner had been exonerated by the Inquiry Officer. It has been further argued that after exoneration the competent authority could not have passed the impugned order dated 16.4.2014 and, therefore, petitioner has the right to be reinstated in service. The learned counsel further argued that jurisdiction of the superior Courts is to be stretched to take into its folds all the disputes to be resolved while limitation of jurisdiction and powers are to be squeezed and kept to minimum strength and length. The learned counsel for the petitioner while placing reliance upon PLD 2009 Supreme Court 866 (Ghulam Abbas Niazi versus Federation of Pakistan and others) argued that jurisdiction of this Court cannot be taken away where authority has acted without jurisdiction, mala fide and coram non judice.

2. On the other hand, learned Law Officer has vehemently opposed the petition and argued that in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 this Court should not exercise the powers of judicial review. It has been further argued that the petitioner has not availed the adequate and efficacious remedy provided under Section 16 of the Punjab Employees Efficiency. Discipline and Accountability Act, 2006.

3. I have considered the arguments advanced by the learned counsel for the parties and perused the available record.

4. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is "subject to the Constitution" while Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 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 administrative Court or tribunal extends." Article 212 being a non-obstante article prevails over Article 199.

5. The Honourable Supreme Court of Pakistan in a judgment reported as I. A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) has held that even if some constitutional rights of a civil servant have been violated, this would not mean that High Court can interfere in such matters in exercise of its powers conferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

6. In Khalid Mahmood Wattoo vs. Government of Punjab and others (1998 SCMR 2280) it was held by the Honourable Supreme Court of Pakistan that even if the order passed is perverse or coram non judice, the High Court cannot extend its powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

7. This view has lately been re-affirmed by the Honourable Supreme Court of Pakistan in a judgment reported as Government of Sindh through Secretary Education and literacy Department and others vs. Nizakat Ali and others (2011 SCMR 592) wherein a statement was made by the Advocate General, Sindh, that the order passed by the Division Bench of Karachi High Court had been implemented but their lordships although dismissed the CPLA but made an observation that in the matters relating to terms and conditions of service High Court would first decide as to whether it has jurisdiction to interfere in the matters relating to terms and conditions of service.

8. Following the dictum laid down by the Hon'ble Supreme Court of Pakistan this Court in a judgment reported in 2010 PLC (C.S) 51 (Lahore High Court) {Dr. Ghazanffarullah and 2 others versus Secretary Health, Government of the Punjab, Lahore and 6 others) reproduced the statement of Chief Justice Johan Marshall in following words:--

“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 SC 49). In short, jurisdiction denotes the authority for the Courts to exercise judicial power. 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.

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 distinction between judicial power and jurisdiction is not kept in mind. If there is no jurisdiction, the question of exercise of judicial power does not arise. I am fortified by the judgment of august Supreme Court of Pakistan reported in 2007 SCMR 54 (Peer Muhammad versus Government of Balochistan through Chief Secretary and others). The relevant part is re-produced below:

"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 cannot 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 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 Tribunal under Punjab Employees Efficiency, Discipline and Accountability Act, 2006. I must observe here that the power of judicial review can only be exercised if this Court has jurisdiction to adjudicate upon the matter. In the present case, even if the order is coram non judice or amount to colourable exercise of powers, the only remedy available to the petitioner is to have recourse of filing a departmental appeal.

2. For what has been discussed above, this petition is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 84 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

GHULAM NABI (JUDICIAL-II) PUNJAB, LAHORE and 3 others--Petitioner

versus

MEMBER BOARD OF REVENUE (JUDICIAL-II) PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 12381 of 2011, decided on 24.4.2014.

Land Revenue Rules, 1967 (XVII of 1967)--

----R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment of lambardar--Validity of order--Order passed by District Officer whereby he ordered appointment of petitioner as Headman/Lambardar was a speaking one--He assigned valid and cogent reasons in support of his order--While passing order, he had not only in his mind Rule 17 of W.P. Land Revenue Rules, 1967 but he also took pains to evaluate credentials and antecedents of two contestants for village Headman/Lambardar--He took into consideration each and every aspect, which could have a bearing on final outcome of exercise carried out by him--While passing such arbitrary orders, they forget that under Art. 4 of Constitution, it is inalienable right of every citizen to be treated in accordance with law--If law of land confers discretion upon an authority, same is to be exercised justly, honestly, equitably, based on sound judicial principles. [Pp. 87 & 88] A, B & C

Ch. Muhammad Hussain Jehanian, Advocate for Petitioner.

Mr. Muhammad Javed Saeed Pirzada, AAG for Respondents.

Pir Ahmad Shah Khagga, Advocate for Respondent No. 3.

Date of hearing: 24.4.2014.

Order

Through his petition, the petitioner has impugned the validity of the orders dated 13.4.2010 and 17.8.2011 passed by E.D.O.(R), Khanewal and Member, (Judl.-II), Board of Revenue, Punjab, Lahore, respectively whereby the revision petition of Muhammad Arshad, Respondent No. 3 was allowed, which order in turn was upheld by the Board of Revenue, Punjab, Lahore.

1. The facts, in brief, are that upon the demise of Muhammad Yaqoob son of Muhammad Bakhsh, permanent Headman/Lambardar of Chak No. 507/EB, Tehsil Burewala, District Vehari, this post fell vacant. District Officer (R) initiated the process to fill the slot. He called for the reports from the field staff. At the end of the day, he appointed Ghulam Nabi, the petitioner herein a Headman/Lambardar of the said village vide order dated 20.1.2009. Feeling aggrieved, Muhammad Arshad, Respondent No. 3 herein filed a revision petition before E.D.O.(R), Vehari. However, due to a transfer order passed by Board of Revenue, Punjab, Lahore the same was finally heard and decided by Executive District Officer (R), Khanewal, who allowed the same vide order dated 13.4.2010. Now it was the turn of the petitioner herein to approach Member, Board of Revenue, Punjab Lahore to challenge the correctness of the aforesaid order dated 13.4.2010. Be that as it may, ROR No. 876/10 filed by the petitioner was dismissed vide order dated 17.8.2011 passed by learned Member, Board of Revenue, Punjab, Lahore.

2. As stated above, the two orders-one passed by the Executive District Officer (R) Khanewal dated 13.4.2010 and the other dated 17.8.2011 passed by Board of Revenue, Punjab-are the subject matter of the instant revision petition.

3. Ch. Muhammad Hussain Jehanian Advocate, learned counsel for the petitioner argues that the impugned orders have been passed in disregard of Rule 17 of W.P. Land Revenue Rules, 1967. He submits that a mere perusal thereof shows that they are arbitrary, capricious, whimsical and atrocious, to say the least. He goes on to argue that while setting aside the well-reasoned and well-argued order dated 20.1.2009 passed by District Officer (R), Vehari, Executive District Officer (R), Khanewal and Member Board of revenue did not meet the reasoning given in the order dated 20.1.2009. He elaborates that unless the reasoning of the District Officer (R), Vehari was found to be perverse or fallacious or untenable, there was no warrant to interfere with the same.

4. On the other hand, Pir Ahmad Shah Khagga Advocate, learned counsel for Respondent No. 3 has supported the impugned orders. He made the argument that Member, Board of Revenue, Punjab being sitting at the apex of the revenue hierarchy was vested with complete and absolute discretion to appoint anybody as a Headman/Lambardar of the village. He further submits that when he found the qualifications of both the Contestants-Respondent No. 3 and the petitioner-equal, he threw his weight behind Respondent No. 3. Therefore, according to him, the petitioner need not feel any heartburn.

5. It is noteworthy that Mr. Muhammad Javed Saeed Pirzada, Assistant Advocate General Punjab was critical of the approach adopted by Member, Board of Revenue, Punjab, Lahore, so he did not support the impugned orders. He put up the argument that both the impugned orders are liable to be stuck down while the order dated 20.1.2009 passed by District Officer (R), Vehari being logical, consistent and reasonable required to be restored.

6. I have heard the learned counsel for the parties and learned Law Officer, besides perusing the record annexed to the writ petition.

7. It would be advantageous to reproduce herein Rule 17 of W.P. Land Revenue Rules, 1967 for ready reference, which has a decisive bearing on the outcome of the controversy in issue:

“(a) ……………………

(b) extent of property in the estate, if there are no sub-divisions of the estate, and in case there be Sub-divisions of the estate, the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate;

(c) services rendered to the Government by him or by his family;

(d) his personal influence, character, ability and freedom from indebtedness;

(e) the strength and importance of the community from which selection of a headman is to be made;

(f) his ability to undergo training in Civil Defence in the case of headmen in Tehsils situated along the Boarder."

1. Having gone through the record, I have no hesitation in holding that the order dated 20.1.2009 passed by District Officer (R), Vehari, whereby he ordered the appointment of the petitioner as Headman/Lambardar of Chak No. 507/EB Tehsil Burewala, District Vehari was a speaking one. He assigned valid and cogent reasons in support of his order. It seems that while passing the order, he had not only in his mind Rule 17 of W.P. Land Revenue Rules, 1967 but he also took pains to evaluate the credentials and antecedents of the two contestants for village Headman/Lambardar. He took into consideration each and every aspect, which could have a bearing on the final outcome of the exercise carried out by him. Paragraph No. 7 of the order dated 20.1.2009 passed by District Officer (R), Vehari is reproduced hereunder for ready reference:

“Arguments heard. Record perused. As per report of Wasil Baqi Nawis, Burewala, both the candidates deposited the amount of Dhal Bachhis previously delivered to them, in advance, as such they are not defaulters of any government dues. However, the amount of Rs.6907/- with regard to canal water has been deposited by the candidate Muhamamd Arshad into government treasury vide Bank Challan No. 104 dated 29.09.2008 as such he remained defaulter of government dues for a period of about 20 years. Although recommendation of Revenue Field Staff is in favour of Muhamamd Arshad yet he is a litigator as he has filed suit against the Province of Punjab with regard to superdari of Larnbardar Grant. So far as the cases registered against Ghulam Nabi are concerned, the Police declared him innocent during the investigation. It clearly shows that Muhammad Arshad, insidiously got registered false cases only to beat down the opponent candidate and to get the post of Lambardar. These acts do not reflect his good character and such type of deceptive person is not suitable for the post of a Lambardar. As regards the factor of proprietary land education or is concerned, Ghulam Nabi is Matric and is owner of land measuring 161 Kanals 16 Marlas whereas Muhammad Arshad is under-Matric and is an owner of land measuring 77 Kanals 1 Marla. As such Ghulam Nabi has an edge over the opponent candidate with regard to the education and proprietary land. Comparatively, Ghulam Nabi, Retired Field Assistant, is considered a suitable person who fulfils the basic conditions of Ruld 17(e) of the Land Revenue Rules, 1968 i.e. ability and freedom for indebtedness. Therefore, Ghulam Nabi son of Shahab Din, caste Jat is hereby appointed as a permanent Lambardar of Chak No. 507/EB, Tehsil Burewala, District Vehari."

1. In sharp contrast to the aforesaid order passed by D.O. (R) Vehari, the Member, Board of revenue, Punjab, Lahore adopted a casual, perfunctory and laid-back approach. How he dealt with the question of appointment of village Headman/Lambardar is evident from the operative part of his order dated 17.8.2011, the relevant portion whereof reads as under:

"After perusal of the record and impugned orders of both the lower Courts I find that both the parties are almost equal under the criteria laid down on the subject except experience and in this way, the respondent has more experience in Lambardari matter as is evident from the available record. As such, he has edge over the present petitioner. Therefore, the EDO (Revenue), Khanewal has rightly set aside the order of DO (Revenue)/Collector, Vehari dated 20.1.2009 vide his impugned order dated 13.4.2010. I find no justification to interfere in the impugned order which is based on facts and good reasons. The same is upheld. The revision petition is rejected accordingly."

1. I agree with the learned counsel for the petitioner that while setting aside the well-reasoned order dated 20.1.2009 passed by D.O.(R), Khanewal, both E.D.O.(R), Khanewal and Member, Board of revenue, Punjab, Lahore were under an obligation to meet the reasoning given therein. But they did not advert to the same and found it convenient to pass orders at their whims, probably proceeding on the assumption that they have unbridled powers to pass any order they like. It seems that while passing such arbitrary orders, they forget that under Article 4 of the Constitution of Islamic Republic of Pakistan, it is the inalienable right of every citizen to be treated in accordance with law. It goes without saying that if the law of the land confers discretion

upon an authority, the same is to be exercised justly, honestly, equitably, based on sound judicial principles. And if the Courts of law arrived at the conclusion that the concerned authorities did not keep in view the objectives to be achieved by the Statute which confer discretion upon them, their arbitrary and whimsical orders would be stuck down.

1. The upshot of the above discussion is that the impugned orders dated 13.4.2010 and 17.8.2011 passed by Executive District Officer (Revenue), Khanewal and Member, (Judl.-II), Board of Revenue, Punjab, Lahore, respectively being unsustainable are hereby set aside, while the order dated 20.1.2009 passed by District Officer (Revenue), Vehari, is restored, by which Ghulam Nabi, the petitioner was appointed as Headman/Lambardar of Chak No. 507/EB, Tehsil Burewala, District Vehari.

2. This petition is allowed in the above terms.

(R.A.) Petition allowed

PLJ 2015 Lahore 89 [Rawalpindi Bench Rawalpindi]

Present: Shezada Mazhar, J.

SyedMUHAMMAD SHAMIM ASGHAR--Petitioner

versus

R.D.A. & others--Respondents

W.P. No. 2616 of 2011, decided on 1.4.2014.

Constitution of Pakistan, 1973--

----Art. 199—Constitutional petition—Deceased father of petitioner specific amount participated in auction of plots and was declared successful bidder of three plots--Certain disputes arisen between father of petitioner and respondent authorities due to which plots were cancelled--Later on any offer was made to father of petitioner for payment of balance outstanding amount along with interest who availed same and made payment--However, as per claim of authority was still outstanding without making payment of such amount no transfer can be claimed--Not a single document is placed on record which could show that company had any nexus with above said plots--All letters issued by respondents were in name of late father of petitioner, therefore, petitioner has no locus standi to file instant petition in his personal capacity without obtaining decree from Court of competent jurisdiction regarding legal heirs of deceased father or in his capacity as chairman of company as Company has no nexus with disputed plots--Petition was dismissed.

[P. 93] A & B

2006 SCMR 869 & 2004 PTD 2128 rel.

Ms.Shazia Bilal, Advocate for Petitioner.

Mr.Kashif Ali Malik, Advocate for RDA.

Date of hearing: 1.4.2014.

Order

Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made the following prayer:--

"In the circumstances, it is, therefore, very humbly and graciously prayed that the instant constitutional petition may kindly be accepted and the Respondents No. 1 & 2 may kindly be directed to issue Transfer/Allotment Letters of Plots No. 25, 26 & 37 Sherpao Colony Rawalpindi along with the approved Building Site plan of the same to the petitioner.

It is further prayed that Respondent No. 3 may kindly be restrained for any interference including letting the said plots for holding Itwaar Bazar and respondent may also be directed to remove the garbage drums from the said plots and make sure that in future Respondent No. 3 will not interfere of any kind over the said plots of petitioner.

It is further prayed that Respondent No. 4 may kindly be directed not to interfere in possession or ownership of petitioner regarding said plots and also that the Respondent No. 4 may restrain for giving any unlawful direction to the Respondents No. 1, 2 & 3 regarding issue of Allotment Letters or approval of Building Site Plan of the said plots to the petitioner.

Any other relief which this Honourable Court may deem fit and proper may also be granted to the petitioner".

1. The facts as mentioned in the writ petition are that predecessor-in-interest of the petitioner namely Moulvi Ahmed Sagheer Shahzada formed and established a Company namely M/s Accurate Builders and Constructors (Pvt.) Ltd for development and construction of residential and commercial houses and plazas. Respondents Nos. 1 & 2 published an advertisement in daily "Naw-e-Waqat" for auction of certain plots to be conducted on 02.04.1998. The former Chairman of Accurate Builders & Constructors (Pvt.) Ltd namely Moulvi Ahmed Sagheer Shahzada participated in the said auction and was declared highest bidder for plots No. 25, 26 & 37 Sherpao Colony, Rawalpindi. Respondents No. 1 & 2 accepted the offer of said Chairman. It is claimed in the writ petition that the payments of the said plots were deposited in favour of Respondents No. 1 & 2. The petitioner's company also submitted a building plan of a Housing Plaza for approval, however, Respondents No. 1 & 2 with mala fide intention and ulterior motive delayed issuing of transfer letters of these plots and did not give any reply for the approval of building plan. In the year 2008, Respondent No. 4 initiated an inquiry against the petitioner company and also imposed caution on all the properties owned by the company namely Accurate Builders and Constructors (Pvt.) Ltd. or late Maulvi Ahmed Sagheer Shahzada including the above mentioned plots. The petitioner applied on many occasions for issuance of transfer letter of the said plots as well as for approval of the building plan but respondents did not pay any heed to the request of the petitioner. It is claimed by Respondents No. 1 & 2 that Respondent No. 4 has already imposed caution, therefore, transfer letter could not be issued nor any building plan can be approved. It is also claimed in the writ petition that Respondent No. 3/Tehsil Municipal Administration/TMA Rawalpindi is holding Sunday/Itwaar Bazar on the said plots without obtaining any permission from the petitioner which is also an illegal act. Hence the present writ petition.

2. The learned counsel for the petitioner submits that the petitioner is owner in possession of the said plots. Respondents No. 1 & 2 are not issuing allotment letters even after the receipt of full payment which is against the Constitution of Islamic Republic of Pakistan, 1973 as well as rules and regulations issued by the respondent authority. Submits that on receipt of the full payment from the predecessor-in-interest of the petitioner the subject plots were no longer under ownership or possession of Respondents No. 1 & 2 and said respondents were duty bound to fulfill all the responsibility in this regard regarding transfer of said plots in favour of the petitioner which they did not fulfill. It is also claimed that NAB cannot stop Respondent No. 2 from issuing allotment letters or approval of building without obtaining order from the Accountability Court. No such order ever obtained by NAB.

3. During the pendency of the writ petition, the petitioner filed CM. No. 888/2012 whereby sought interim relief against the notice dated 14.06.2012 issued by Respondents No. 1 & 2 regarding payment of the balance interest amount of the said plots. In this regard, learned counsel for the petitioner submits that on receipt of total payment including interest, the respondents have no right to claim further interest as the same will amount to claiming of interest over interest which is not allowed under the law. In support of her contention, the learned counsel for the petitioner relied upon National Bank of Pakistan vs. Punjab Buildings Products Ltd. (PLD 1998 Karachi 302), Dawood Islamic Bank Limited vs. Ad more Gas (Pvt.) Limited and 6 others [(2012 CLD 263) (Sindh)] and Agricultural Development Bank of Pakistan vs. Messrs Bandagi Agro Services (Pvt.) Limited and another [(2002 CLD 1686) (Lahore)]. Submits that the writ petition be accepted and a direction be issued to the respondents to issue transfer/allotment letter in respect of Plot Nos. 25, 26 & 37 Sherpao Colony, Rawalpindi and also approve the building plan in favour of petitioner.

4. On the other hand, learned counsel appearing on behalf of Respondents No. 1 & 2 submits that the petitioner has no locus standi to file the present writ petition as the plots were purchased in auction by one Maulvi Ahmed Sagheer Shahzada and the petitioner without obtaining any decree from the competent Court approached this Court on the ground that he is the Chairman of the Company M/S Accurate Builders & Constructors (Pvt.) Ltd. Submits that the plots were purchased by Maulvi Ahmed Sagheer Shahzada in his personal capacity and the Company was not the purchaser of the plots, therefore, the present writ petition is not maintainable by Syed Muhammad Shamim Asghar son of Moulvi Ahmed Sagheer Shahzada as Chairman of the company or even in his personal capacity without any declaration with regard to legal heirs of Moulvi Ahmed Sagheer Shahzada. Further submits that an inquiry was pending against Moulvi Ahmed Sagheer Shahzada as well as the Company M/S Accurate Builders & Constructors (Pvt.) Ltd. and during the pendency of the said inquiry a letter under Section 23 of the NAB Ordinance, 1999 was issued whereby the plots owned by Moulvi Ahmed Sagheer Shahzada were put under caution. The said letters have never been challenged by Maulvi Ahmed Sagheer Shahzada or the Company. Under the law said notice is binding upon Respondents Nos. 1 & 2. Further submits that an amount of Rs. 15,37,842/- is still outstanding on account of mark up, therefore, on this account also transfer letter cannot be issued to any person. Learned counsel further submits that the facts have not been properly stated before the Court, plots were auctioned in the year 1998 against total amount of Rs. 1,22,49,119/-, 20% down payment was made. However, the balance amount could not be paid, therefore, the plots were cancelled on 20.11.1998. A civil suit was filed and during the pendency of the said suit a letter dated 8.7.2005 was issued whereby it was offered that balance amount along with interest of 13.5% be paid within a period of one month and a condition was also imposed that litigation will have to be withdrawn. The petitioner availed the said offer, deposited an amount of Rs.95,00,000/- only but failed to pay the balance amount. Later on Respondents No. 1 & 2 allowed balance payment in two installments at the rate of Rs.47,15,759/- per installment. The said two installments were paid in the year 2006. Later on a ban was imposed by the NAB authorities and during audit of the accounts of the respondents/ authority an objection was raised that interest amount of Rs. 15,34,882/- has not been recovered from the petitioner, therefore, notice dated 14.06.2012 was issued. The petitioner neither challenged the said notice nor paid any amount on account of interest, therefore, Respondents No. 1 & 2 cannot issue transfer letter in favour of any person including the petitioner. Submits that the writ petition is liable to be dismissed. The learned counsel for Respondents No. 1 & 2 relied upon Manzoor Hussain vs. Karam Hussain and others (2006 SCMR 869) and Commissioner of Income-Tax vs. Narendra Doshi (2004 PTD 2128) in support of his contention.

5. I have heard the arguments and perused the record.

6. Perusal of the record reveals that late father of the petitioner namely Moulvi Ahmed Sagheer Shahzada participated in auction of the plots and was declared successful bidder of three plots No. 29, 26 & 37 Sherpao Colony, Rawalpindi. Certain disputes arisen between the father of petitioner and the respondent authorities due to which plots were cancelled. Later on any offer was made to the father of the petitioner for payment of balance outstanding amount along with interest who availed the same and made the payment. However, as per the claim of respondents/authority the amount of Rs. 15,34,882/- was still outstanding without making payment of such amount no transfer can be claimed.

7. Not a single document is placed on record which could show that the company namely M/s Accurate Builders and Contractors (Pvt.) Ltd., had, any nexus with the above said plots. All the letters issued by the respondents were in the name of late father of the petitioner, therefore, the petitioner has no locus standi to file the present writ petition in his personal capacity without obtaining decree from the Court of competent jurisdiction regarding legal heirs of the deceased father or in his capacity as the Chairman of the company M/s Accurate Builders and Contractors (Pvt.) Ltd., as the said Company has no nexus with the plots No. 29, 26 & 37 of Sherpao Colony, Rawalpindi.

8. Even other wise disputed facts are involved in the present writ petition which cannot be resolved through constitutional petition. It is also not ascertainable from the available record whether the petitioner is the only surviving legal heir of late Moulvi Ahmed Sagheer Shahzada, for this reason also the present writ petition is not maintainable.

9. In view of what has been discussed above, the instant writ petition being devoid of any force is hereby dismissed.

(R.A) Petition dismissed

PLJ 2015 Lahore 94

Present: Atir Mahmood, J.

MUHAMMAD SHAHZAD--Petitioner

versus

JUDGE FAMILY COURT, LAHORE and 2 others--Respondents

W.P. No. 7952 of 2014, decided on 24.4.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 9(6) & 17-A--Suit for dissolution of marriage, recovery of maintenance, allowance, dowery article, delivery expenses--Marriage was dissolved on basis of khula--Ex-parte judgment was set aside subject to make payment as well as monthly maintenance allowance for minor--Validity--Condition imposed for suspension of decree was not sustainable as under Section 9(6) of Family Courts Act, Family Court has no power to impose any cost in application for suspending ex-parte judgment and decree--Payment of interim maintenance allowance was also not sustainable as provision of Section 17-A of Act comes into field only when written statement was filed by defendant--Family Court, after having filed interim maintenance allowance, order was set aside to extent of imposition of condition of payment as well as payment of interim maintenance allowance for minor--Petition was allowed. [P. 96] A & B

Raja AhmedRaza, Advocate for Petitioner.

Mr.Hamid Rasheed, Advocate for Respondents.

Date of hearing: 24.4.2014.

Judgment

Brief facts of the case are that Respondent No. 2 filed a suit for dissolution of marriage, recovery of maintenance allowance, dowry article, delivery expenses and 5 tola gold ornaments with the averments that she was married with the petitioner on 31.10.2010 for a consideration of Rs.2000/- as dower money which was not paid; that out of this wedlock, a daughter namely Maham was born on 06.08.2012; that delivery expenses of Rs.30,000/- were borne by parents of the plaintiff; that 5 tola gold ornaments were gifted to the plaintiff by the defendant which are still in his custody; that the relations between the parties remained cordial in the beginning, however, later on, the petitioner-defendant expelled the plaintiffs from his house in October, 2011; that no maintenance was ever paid to the plaintiffs.

1. Summons were issued and service through publication was also made but none appeared on behalf of the petitioner, therefore, he was proceeded against ex parte, evidence of Respondent No. 2 was recorded and the suit of the respondents was decreed vide ex parte judgment dated 23.01.2014 in the terms that the marriage was dissolved on the basis of khula, the plaintiff was held entitled to recover dowry articles as per list Ex.P1/2 except gold ornaments 5 tola or a sum of Rs. 100,000/- in lieu thereof and also for delivery charges to the extent of Rs. 15,000/-. Vide said judgment, Plaintiff No. 1 was awarded maintenance allowance @ Rs.2500/- and Plaintiff No. 2 @ Rs.5000/-per month from the date of institution of the suit. The respondent then filed an execution petition wherein notices were issued to the petitioner. On receipt of notice in the execution petition, the petitioner filed application for setting aside ex parte judgment and decree dated 23.01.2014. On 27.02.2014, the learned Judge Family Court passed the following order in the application of the petitioner:

“As the decree was passed ex-parte and by relying upon the affidavit annexed with the application, the operation of the ex-parte judgment and decree is, hereby, suspended till the next date of hearing subject to payment of Rs. 15,000/- as well as monthly maintenance for minor respondent at the rate of Rs.5000/- per month as decreed (which shall be adjustable at the time of final decision of the case) alongwith a surety bond for remaining decretal amount on behalf of petitioner/ judgment debtor for the satisfaction of this Court."

1. The order dated 27.02.2014 has been challenged in this writ petition mainly on the ground that the learned Judge Family Court has no jurisdiction to impose condition of payment of cost of Rs.15,000/- as well as interim maintenance allowance in the application for setting aside ex parte judgment and decree. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and supported the impugned order. His whole emphasis is on the point that all modes of service were adopted for service of the respondent but he did not appear before the Court, therefore, the Court was left with no option but to pass an ex parte judgment and decree.

2. Arguments heard. Record perused.

3. The impugned order reflects that ex parte judgment and decree dated 23.01.2014 passed by learned Judge Family Court was suspended on an application filed by the petitioner for setting aside the ex parte judgment and decree but at the same time, the condition was imposed to make payment of Rs. 15,000/- as well as monthly maintenance allowance for the minor respondent @ Rs.5,000/- per month as decreed.

4. Perusal of the impugned order reflects that the condition imposed by learned family Court for suspension of the impugned judgment and decree is not sustainable as under Section 9(6) of the learned Family Courts Act, 1964, the family Court has no power to impose any cost in application for suspending ex parte judgment and decree. Furthermore, the payment of interim maintenance allowance of Rs.5,000/- is also not sustainable as the provision of Section 17-A of the Act ibid comes into field only when the written statement is filed by the defendant. Keeping in view the pleadings as well as circumstances of the case, the family Court, after having filed written statement by the defendant, can pass the order for interim maintenance allowance, therefore, the impugned order dated 27.02.2014 is set aside to the extent of imposition of condition of payment of Rs. 15,000/- as well as payment of interim maintenance allowance for the minor respondent @ Rs.5000/- per month. This writ petition is allowed in the said terms.

(R.A.) Petition allowed

PLJ 2015 Lahore 97

Present: Ijaz-ul-Hassan, J.

ZARAK BARI MALIK--Applicant

versus

BARI STUDIOS (PVT.) LTD. through its Director and 3 others--Respondents

C.O. No. 31 of 2010, decided on 25.3.2014.

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 305--Delayed in reaching High Court was duly supported by affidavit--Petition was dismissed for non-prosecution--Application for restoration was moved after four days after order of dismissal--Matter was at its initial stage--Validity--There is no valid reason for High Court to disbelieve an affidavit, which has been sworn by a counsel of High Court and is also supported by an affidavit of petitioner--Matter is at its initial stages--No prejudice would be caused to either side if matter is restored--Law favours adjudication of matters on merits and discourages non-suiting parties on basis of technicalities--Petitioner in view of fact that even first time when instant petition was dismissed for non-prosecution same was restored subject to payment cost. [Pp. 98 & 99] A, B & C

Mr.Usman Ghazi, Advocate for Applicant.

Mr.Tipu Salman Makhdoom, Advocate and Mr. Hammad Munir, Advocate for Respondent.

, Assistant Director Securities and Exchange Commission of Pakistan.

Date of hearing: 25.3.2014.

Order

This is an application for restoration of the petitioner, which was dismissed for non-prosecution vide order dated 12.11.2013.

1. The learned counsel for the applicant submits that on the date in question, the petitioner was out of station and had instructed his counsel to appear in this Court. The learned counsel met with a road accident, in consequence of which, he was not present when the case was called, which resulted in dismissal of the same. He argues that the petition is at its early stages and no prejudice would be caused to any of the parties by restoration of the same. Further, the application for restoration was promptly moved on 16.11.2013 i.e. four days after the order of dismissal was passed, therefore, the application is liable to be allowed.

2. The learned counsel for the respondent, on the other hand, submits that this is the second time that the petition has been dismissed for non-prosecution. He points out that earlier this petition was dismissed on 10.10.2011. However, it was subsequently restored on payment of costs of Rs.5000/-. He submits that even on 24.09.2013, the learned counsel for the petitioner did not appear, in consequence of which the matter could have been dismissed, however, this Court showed grace and did not dismiss the petition. He, therefore, argues that the conduct of the petitioner disentitles him to restoration of the petitioner. The learned counsel further submits that the argument that the learned counsel for the petitioner met with a road accident, which prevented him from appearing before this Court, is not supported by any evidence. Further neither an affidavit of the clerk of the learned counsel has been placed on record, nor any affidavit of the associate who was allegedly directed to attend the case, has been produced. He finally argues that the application was not immediately moved and the petitioner waited for at least four days before approaching this Court for restoration of his case.

3. I have heard the learned counsel for the parties and gone through the available record. It appears that the petition was dismissed for non-prosecution. The name of the learned counsel had appeared in the cause list. The argument of the learned counsel for the petitioner that he met with an accident and was therefore delayed in reaching this Court is duly supported by his affidavit. There is no valid reason for this Court to disbelieve an affidavit, which has been sworn by a learned counsel of this Court and is also supported by an affidavit of the petitioner. The Hon'ble Supreme Court of Pakistan in a number of cases including Seth Shivrattan G. Mohatta and another vs. Messrs Muhammadi Steamship Co. Ltd. (PLD 1965 SC 669), Babu Jan Muhammad and others vs. Dr. Abdul Ghafoor and others (PLD 1966 SC 461) and Muhammad Haleem and others vs. H.H. Muhammad Naim and others (PLD 1969 SC 270) has held that if the counsel has met with an accident and the matter has been dismissed for non-prosecution, the same constitutes sufficient basis for restoration of the petition. It has already been held above that I have no reason to disbelieve the stance taken by the learned counsel for the applicant. Even otherwise, the matter is at its initial stages. No prejudice would be caused to either side if the matter is restored. Law favours adjudication of the matters on merits and discourages non-suiting parties on the basis of technicalities. However, the fact that this

petition has been dismissed for non-prosecution the second time, furnishes justification to impose costs on the petitioner in view of the fact that even the first time when this petition was dismissed for non-prosecution on 10.10.2011, the same was restored subject to payment of Rs. 10,000/- as cost.

1. In view of the foregoing, subject to payment of Rs. 10,000/- as costs, which shall be deposited with the Lahore High Court Bar Association Diagnostic Centre within seven days from today, this application is allowed and the petition is restored to its original number. Receipt indicating payment of the aforesaid amount shall be placed on record before the next date of hearing.

2. Let the main petition be listed for hearing in the third week of May, 2014.

(R.A.) Application allowed

PLJ 2015 Lahore 99

Present: Syed Mansoor Ali Shah, J.

MUHAMMAD RIAZ MALIK, MEMBER NATIONAL ASSEMBLY--Petitioner

versus

DISTRICT RETURNING OFFICER, LAHORE and 21 others--Respondents

W.P. No. 27437 of 2014, decided on 23.10.2014.

Representation of the People Act, 1976 (LXXXV of 1976)--

----Ss. 62 & 67--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Summoning and examining of DRO--Remedy against final order--Validity--Interim orders of Election Tribunal cannot be challenged before High Court in its constitutional jurisdiction under Art. 199 of Constitution--Instant petition is, therefore, not maintainable, hence dismissed. [P. 101] A

Ch.Aamir Rehman, Advocate for Petitioner.

Mr. Anwaar Hussain,Assistant Advocate General, Punjab.

Mr.Tipu Salman Makhdoom, Advocate for Respondent No. 2.

Syed Tajamal Hussain, Assistant Superintendent, District Returning Officer, Lahore.

Date of hearing: 23.10.2014.

Order

Vide order 23.09.2014 learned Election Tribunal, Lahore sought a report from District & Sessions Judge District Returning Officer, Lahore in the following manner:

“... However, I find it just and appropriate to have a report based on facts from the learned District & Sessions Judge/District Returning Officer, Lahore regarding the aforesaid questions in order to arrive at the truth and to afford an opportunity to the custodians of the election record so that they may bring on record their stance regarding the disputed election record, if they feel so advised. It is genuinely expected that requisite report shall reach this Tribunal on or before 29.09.2014."

Grievance of the petitioner is that the District & Sessions Judge/District Returning Officer, Lahore be directed to comply with the aforesaid order.

1. It is noticed that before parting with the order dated 23.09.2014, learned Election Tribunal noted as follows:

“7. ... I want to make it clear that I cannot compel the District Returning Officer to make a report. In case, he does not find it appropriate to make a report about the disputed election record, the Election Tribunal shall draw its own inferences from the evidence available on record to decide the fate of Election Petition on facts and law."

On the next date of hearing i.e., 29.09.2014 learned Election Tribunal was pleased to pass the following order:

"This may be read in continuation of order No. 64 dated 23.09.2014. The District Returning Officer has expressed his inability to prepare the report in terms of order dated 23.09.2014, referred to above.

1. Arguments in progress. For remaining arguments to come up on 02-10-2014."

Perusal of the above order reveals that the matter has already been resolved by the learned Election Tribunal, Lahore.

1. Learned counsel for the petitioner pointed out that thereafter the petitioner filed application under Section 62 of the ROPA, 1976 for summoning and examining of the aforementioned District Returning Officer, which was declined vide order dated 13.10.2014.

2. Without commenting on the merits of the case. I have considered the aforementioned orders, the only remedy available to the petitioner is to approach the august Supreme Court of Pakistan against the final order under Section 67 of ROPA, 1976. In the light of judgment delivered by the Full Bench of this Court passed in W.P. No. 11155/2013 dated 19.2.2014, interim orders of the Election Tribunal cannot be challenged before this Court in its constitutional jurisdiction under Article 199 of the Constitution. The instant petition is, therefore, not maintainable, hence dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 101 [Multan Bench Multan]

Present: ShahKhawar, J.

Mst. WAHDUL MAI--Petitioner

versus

DISTRICT POLICE OFFICER, MUZAFFARGARH, etc.--Respondents

W.P. No. 6275 of 2014, decided on 22.5.2014.

Constitution of Pakistan, 1973--

----Arts. 10 & 199--Constitutional petition--Loyalty to state was basic duty of every citizen--Obligation to every citizen--Provisions of constitution--Member of the law enforcing agencies throughout the country are supposed to go through and understand, the same, so that they know their duties and obligations towards the State as well as the citizens--Since the alleged detenue has been produced who is now in the valid custody of police so, instant petition was disposed of. [P. 102] A & B

Nemo for petitioner.

Mr. Aziz-ur-Rehman Khan, Assistant Advocate General for Respondents.

Date of hearing: 22.5.2014.

Order

The alleged detenue has been produced. Learned Assistant Advocate General states that the alleged detenue has been arrested in three different FIRs and he is under interrogation. Further contends that the allegation of arresting the accused on 04.05.2014 is not correct. Muhammad Sharif S.I./Station House Officer was asked whether he has read Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 who replied in negative.

1. This is strange that the police officers who under the Constitution and the law are empowered to make arrests of the citizens, involved in cognizable offences, while adhering to the provisions of the Constitution of Islamic Republic of Pakistan, 1973 and specially Article 10, which provides safeguards as to arrest and detention. This is astonishing that a Sub-Inspector of Punjab Police has not even read this important Article of the Constitution, which he is supposed to learn by heart. It reflects that the Punjab Police as well as police of other provinces is not imparting Constitutional education, during the departmental courses to their personnel. In the same manner, loyalty to State and obedience to Constitution and Law is mandated in Article 5 of the Constitution of Islamic Republic of Pakistan,1973 which provides that (1) Loyalty to the State is the basic duty of every citizen (2) Obedience to the Constitution and Law is the (inviolable) obligation to every citizen wherever he may be and of every person for the time being within Pakistan.

2. Keeping in view the above said mandatory provisions of the Constitution, the member of the law enforcing agencies throughout the country are supposed to go through and understand, the same, so that they know their duties and obligations towards the State as well as the citizens.

3. The Deputy Registrar (Judicial) of this Court is directed to circulate copies of this order to the Secretary, Government of Pakistan, Ministry of Interior, Chief Secretaries and Provincial Police Officers (IGs) of all provinces with a direction that they should include Chapter-I, (Fundamental Rights) of the Constitution of Islamic Republic of Pakistan, 1973, as a compulsory subject in the curriculums of the courses which are offered to the members of the law enforcing agencies during their courses, at all levels.

4. Since the alleged detenue has been produced who is now in the valid custody of police so, present writ petition with the above observations stands disposed of.

(R.A.) Petition disposed of

PLJ 2015 Lahore 103

Present: ShahKhawar, J.

MUMTAZ AKHTAR RANA--Petitioner

versus

INSPECTOR GENERAL OF POLICE etc.--Respondents

W.P. No. 11699 of 2013, decided on 3.4.2014.

Pakistan Penal Code, 1908 (XLV of 1860)--

----S. 489-F--Criminal Law Amendment Ordinance, (LXXXV of 2002), Scope of--Dishonestly issuing cheque--Maximum punishment was three years--Section 489-F, PPC was inserted to punish delinquents having dishonestly issued cheque towards repayment of loan--Validity--Section 489-F could only be invoked where cheque was deliberately issued with an intention to defraud payee with criminal intention. [P. 106] A

Punjab Health Foundation Act, 1992--

----S. 10(1)(e)--Pakistan Penal Code, (XLV of 1860), S. 489-F--Function of foundation--Loans to health instructions--Cheques were given as security and were not issued against any obligation--Terms and conditions of loan agreements--Dishonor of cheque as criminal act on part of loanee, was not correct--When a loan has been granted and same is secured by mortgage deed of valuable immoveable property and that too in presence of Clause (12) of agreement and same cannot be recovered by way of exercising coercive measures not mentioned in loan agreement--There is a procedure provided in said clause that recovery of loan could be effected by resorting to provisions of Revenue Recovery Act, 1890--Punjab Health Foundation does not come within purview of Financial Institution as provided in financial institutions (Recovery of Finance Ordinance), 2001 but being an organization empowered to extend loans could be equated with status of financial institution which is creation of statute i.e. Punjab Health Foundation Act, 1992, being a special law, having empowered (PHF) to grant loans--Where in case of default by petitioner, Addl. Director of Health may issue show-cause notice to borrower to pay loan immediately alongwith penalty which may be in shape of sale of mortgage property and recovery of arrears of land revenue under Revenue Recovery, Act, 1890.

[Pp. 106 & 107] B, C & D

Ch.Ishtiaq Anwar, Advocate for Petitioner.

Kh. Salman Mahmood, Assistant Advocate General Punjab Muhammad Ittefaq Accounts Officer, Punjab Health Foundation.

Date of hearing: 3.4.2014.

Order

Brief facts of the case are that Dehi Taraqiati Committee being a NGO is working in different projects including literacy, health, population and vocational welfare etc. Mumtaz Akhtar Rana is the president of the NGO.

1. Respondent No. 2 is Additional Director F & R, Punjab Health Foundation, Lahore an organization which came into being on the strength of the Punjab Health Ordinance, 1994 (herein after Act, 1992). The said act was promulgated on 10th of November, 1992 to provide for the establishment of the Punjab Health Foundation to promote and finance the development of the health sector in the Province of the Punjab. Section 10 of the Act, 1992 deals with the function of the foundation and Section 10(1)(e) provides to give loans to health institutions. The health institutions also cover the institutions established under the NGOs.

2. The petitioner's NGO applied for load of Rs. 12,00,000/- from Respondent No. 2 for construction of hospital over land measuring 09-kanals 11-marlas situated at Mauza Hajrai Khurd Tehsil Pattuki District Kasur, which was accordingly allowed to the said NGO against an agreement executed between petitioner and Respondent No. 2. Respondent No. 2 at the time of execution of loan agreement obtained sixteen cheque as security of loan from the petitioner @ Rs.75,000/- each with the promise that on deposit of each installment, respective cheque would be given back to the petitioner.

3. This is contention of the petitioner that she has been paying the installments but Respondent No. 2 submitted an application before Respondent No. 3 with the allegation that three cheque Bearing Nos. 630379061, 63037908 and 63037911 were dishonored on their presentation. Further that on the application of Respondent No. 2, Respondent No. 1, Inspector General of Police, Punjab directed CCPO, Lahore to take necessary legal action by way of lodging FIR before Respondent No. 3. That letter has been impugned by the petitioner in the instant writ petition by making assertion that the loan is secured by mortgaging the precious land of the petitioner; that Respondent No. 2 can only invoke jurisdiction of the competent Court to determine the liability of the petitioner and then proceed in accordance with law. Further that police has no lawful authority to interfere into the matter which purely of civil nature. It was further contended that the cheques were given to Respondent No. 2 as security and the same were not issued against any obligation.

4. Notices were issued to respondents and learned Assistant Advocate General, Punjab made appearance on behalf of the respondents and submitted before this Court brief history of the case pertaining to the loan issued by Punjab Health Foundation to the petitioner. After perusal of the same, it transpired that recovery of loan is to be made in sixteen installments i.e. Rs.75,000/- each were detailed in the brief history. According to the same the loanee has to pay the 6th installment on the due date. Show-cause notices were issued to the loanee for the deposit of installments but in vain. As the advance cheque was dishonored, therefore, the police department was approached for launching FIR against the loanee considering the dishonor of cheque a criminal act on the part of loanee. Subsequent to the assessment of said show-cause notices, the loanee approached the foundation and promised to pay 4th coming installment on due date. Learned Assistant Advocate General Punjab further contended that loanee has paid 12th installment on 12.02.2014 and still defaulter of 7 to 11 installments and surcharge @ 4% per month.

5. The petitioner has also providea copy of loan agreement executed between petitioner and Respondent No. 2 and has adverted to clause 3, 9 and 12 of the agreement.

Clause (3). before the release of land the borrower shall execute a registered mortgage deed of immoveable property on prescribed format or provide bank guarantee or Government security to the satisfaction of the Foundation.

Clause (9) if the loan is not repaid according to the repayment schedule, the borrower will be liable to pay a penalty of 4% per month on the defaulted amount.

Clause (12). If the borrower commits a breach of any clause of this agreement the creditor may issue show-cause notice to the borrower to pay the loan immediately alongwith penalty. The creditor is also at liberty to take any legal action to recover the loan and penalty, if any, which may include legal notice, publication in newspaper and sale of the mortgaged property OR invoke the Bank Guarantee OR as arrears of land revenue under the Revenue Recovery Act, 1890

1. The criminal action proposed entails the punishment contained in Section 489-F of the Pakistan Penal Code for dishonestly issuing a cheque and maximum punishment whereof is three years. This section was introduced and inserted by Ordinance LXXXV of 2002 dated 25.10.2002. The said section was inserted in Pakistan Penal Code to punish the delinquents having dishonestly issued a cheque towards repayment of loan or fulfillment of an obligation which is dishonored on presentation. This section could only be invoked where the cheque has been deliberately issued with an intention to defraud the payee with criminal intention.

2. Now advert to the terms and conditions of the loan agreement and going through the above referred clauses of the loan agreement, it transpires that other than deposit of cheque as security, the land was secured by way of mortgage deed dated 24.03.2007 executed by the petitioner in favour of Respondent No. 2 before the Sub-Registrar Pattoki, District Kasur against land measuring 9-kanals 11-marlas bearing Khewat No. 738, Khetoni No. 2143 to 2145, Qita No. 3 situated at Mauza Hanjrai Khurd Tehsil Pattoki District Kasur.

3. The assertion of learned Assistant Advocate General Punjab that police department was approached for launching of FIR against the loanee considering the dishonor of cheque as a criminal act on the part of the loanee, is not correct. When a loan has been granted and same is secured by mortgage deed of valuable immoveable property and that too in presence of Clause (12) of above referred agreement and same cannot be recovered by way of exercising coercive measures not mentioned in the loan agreement. There is a procedure provided in the said clause that the recovery of loan could be effected by resorting to the provisions of the Revenue Recovery Act, 1890.

4. This is an admitted fact that the Punjab Health Foundation does not come within the purview of financial institution as provided in the Financial Institutions (Recovery of Finances) Ordinance, 2001 but being an organization empowered to extend loans could be equated with the status of financial institution which is creation of statute i.e. Punjab Health Foundation Act, 1992, being a special law, having empowered (PHF) to grant loans.

5. Rather I could not find any case law in this particular situation but inference could be drawn on the basis of judgments of the superior Courts having dealt with such like matters. Reference could be placed on the judgment passed in case reported as "Khalid Javed v. State etc" PLJ 2014 Cr.C. (Lahore) 48 and 2014 CLD 45 in which it is held that any provision of Section 489-F of the Pakistan Penal Code could not be attracted where loans were protected by mortgage, warranties and covenants with regard to ownership, mortgage, pledge, hypothecation or in terms of other purchase on assets of property and financial institutions could recover the amount by adopting a property process under any of such mode. Reference could also be made of a case report as Tariq Mehmood V. Askari Leasing LTD P L D 2009 Lahore 629.

6. In the instant case the loan issued by Respondent No. 2 in favour of petitioner has been secured through a mortgage Deed No. 398 dated 24.03.2007 registered with Sub-Registrar, Pattoki District Kasur. In case of default, a mode has been provided where in case of default by the petitioner, Respondent No. 2 may issue show-cause notice to the borrower to pay the loan immediately alongwith penalty which may be in the shape of sale of mortgage property and recovery of arrears of land revenue under Revenue Recovery, Act, 1890.

7. In presence of these clauses in the agreement, I am of the considered view that Respondent No. 2 is not competent to resort to the provision of Section 489-F of the Pakistan Penal Code and any such action will be nullity in the eye of law as held by the renowned pronouncements made by the superior Courts.

8. What has been discussed above, I allow the instant writ petition in the above terms and set-side the letter dated 10.07.2012 which has recommended registration of FIR against the petitioner under Section 489-F of the Pakistan Penal Code.

(R.A.) Petition allowed

PLJ 2015 Lahore 107

Present: Abdus Sattar Asghar, J.

MUHAMMAD AMIN--Petitioner

versus

NAJMA PARVEEN, etc.--Respondents

W.P. No. 29715 of 2014, decided on 11.11.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Right to file written statement was struck off--Many opportunities were provided to file written statement--Failed to file written statement--Validity--It is well settled by now that Family Court Act, has been enacted for expeditious settlement and disposal of disputes relating to family affairs--Conduct of a party is relevant factor in administration of justice--High Court did not find any legal infirmity, material irregularity or jurisdictional error in impugned order passed by Family Court--Petitioner has no cause to invoke constitutional jurisdiction of High Court. [P. 109] A & B

Mr. MuhammadAzam Warraich, Advocate for Petitioner.

Date of hearing: 11.11.2014.

Order

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the order dated 22.5.2014 passed by learned Family Judge Pasrur whereby petitioner's right to file written statement was struck of.

1. It is argued by learned counsel for the petitioner that impugned order is passed in a slipshod manner without application of judicious mind or comprehending the questions of law and facts involved in this case; that learned trial Court wrongly exercised the jurisdiction while passing the impugned order which is liable to set aside.

2. Arguments heard. Record perused.

3. Succinctly facts leading to this petition are that Najma Parveen respondent has filed a suit for dissolution of marriage and recovery of dowry articles against the petitioner on 26.11.2013. Process server reported that petitioner was residing abroad consequently proclamation in the newspaper was issued besides issuing process of the Court through registered post. On 24.3.2014 M.Fayyaz Bajwa Advocate filed power of attorney on behalf of the petitioner. The same day copies of the plaint etc. were served upon to learned counsel for the petitioner and the case was fixed for 16.4.2014. On the said date written statement was not filed and request for adjournment was made by learned counsel for the petitioner. Another request was allowed and case was adjourned for filing of written statement for 08.5.2014. On the said date learned counsel for the petitioner made request for an adjournment for filing of written statement which was allowed with a caution of last opportunity and a warning that no further adjournment would be given and the case was adjourned for 22.5.2014. On the said date written statement was not filed consequently through impugned order petitioner's right of filing written statement was struck of.

4. Section 8(1)(a) of the West Pakistan Family Court Act 1964 provides that on presentation of plaint to the Family Court it shall fix a date of not more than thirty days for the appearance of the defendant.

Section 9 of the Act (ibid) further provides that on the date fixed under clause (a) of sub-section (1) of Section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement. This section further stipulates that in case of default the Family Court may proceed ex-parte.

1. In this case record transpires that after petitioner's appearance before the Court through counsel on 24.3.2014 petitioner availed as many as five opportunities in sixty days up till 22.5.2014 but miserably failed to file the written statement despite caution of last opportunity and specific warning. It is well settled by now that Family Court Act has been enacted for the expeditious settlement and disposal of disputes relating to the family affairs. Needless to say that conduct of a party is relevant factor in the administration of justice. In case of contumacious default of the petitioner to file written statement the Family Court therefore acted well within its jurisdiction to strike of the petitioner's right to file the written statement for orderly dispensation of justice under the Act.

2. Besides petitioner has not been able to advance any cogent reason for his failure in filing the written statement despite availing six opportunities within a period of sixty days since his appearance before the Court. In view of the above I do not find any legal infirmity, material irregularity or jurisdictional error in the impugned order passed by learned Judge Family Court. Petitioner has no cause to invoke the constitutional jurisdiction of this Court.

3. For the above reasons, this constitutional petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 109 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

MUHAMMAD SHABBIR and 4 others--Petitioners

versus

MUHAMMAD RAFIQUE and 4 others--Respondents

C.R. No. 930 of 2013, heard on 13.6.2014.

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

----O. XLI, R. 27--Production of documentary evidence as additional evidence--Production of additional evidence of certified copies of mutation and khasra gardawari--Validity--Petitioners had failed to give any justification that as to why same documents were not produced during trial of suit even written statement was filed in year 2008 and neither these documents were attached with written statement to specifically deny claim made by respondent nor these were mentioned--Acceptance of application to extent of production of cheque and amendment in written statement would open pandora box--Cheque which relates to year 2005, is not required by appellate Court to decide appeal on merits rather production of same cheque would result into introducing a new cause of action which may change nature of entire litigation.

[Pp. 112, 113 & 114] A, D & E

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

----O. VII, R. 17 & Ss. 107 & 151--Amendment in pleadings--Application to extent of amendment in written statement was dismissed--Proposed amendment would only be allowed in such manner and on such terms as may be just and necessary for purpose of determining real questions in controversy between parties, but in present case, petitioners had filed application under Order VI Rule 17, CPC to introduce a new plea which do not relate to controversy raised in plaint as well as in written statement--Proposed amendment is not necessary to determine real controversy regarding validity and originality of gift mutations challenged in plaint--Application for amendment may be filed at any stage in interest of justice but while allowing such amendment consideration for Court should be that no such amendment should be allowed which is aimed at changing complexion of case altogether or would introduce a new case based on new cause of action. [Pp. 113 & 114] B, C & F

Mr. Abdul SalamAlvi, Advocate for Petitioners.

Mr.Kanwar Muhammad Younis, Advocate for Respondents No. 1 and 2.

Date of hearing: 13.6.2014.

Judgment

This civil revision is directed against the order, dated 10.12.2013 passed by learned Additional District Judge, Jehanian through which the learned Additional District Judge partially allowed the application under Order XLI Rule 27, CPC and under Order VI Rule 17 read with Sections 107 and 151, CPC for production of additional evidence and amendment of written statement.

1. Facts of the case are that Respondent No. 1/Muhammad Rafique filed a suit for declaration against the petitioners and Respondents No. 2 to 5 for cancellation of gift Mutations No. 824, 825 and 826 on the ground that the predecessor in interest of the parties was on death bed at the time of mutations, which were entered but remained un-attested by the revenue officer. The petitioners and the proforma respondents filed a contesting written statement, resisting the pleas of Respondent No. 1/Muhammad Rafique/Plaintiff. The petitioners also filed two other different suits for declaration that valid gift mutations were entered in their favour. The learned Civil Judege 1st Class, Jahanian through a consolidated judgment and decree dated 30.07.2010 decreed the suit in favour of Muhammad Rafique/Respondent No. 1 and dismissed the suits filed by the petitioners.

2. An appeal was preferred by the petitioners against the above said judgment and decree and during the pendency of the appeal, the petitioners filed an application under Order XLI Rule 27 for production of certified copies of Mutations No. 703, 749, a Cheque No. 37780401 dated 10.03.2005 and a copy of Khasra Gardawari as an additional evidence and under Order VI Rule 17, CPC for amendment in the written statement. The application was contested through filing of written reply by the Respondent No. 1/Muhammad Rafique. During the pendency of the above said application another application under Order VI Rule 17, CPC read with Sections 107 and 151, CPC for amendment of the above said application was filed, which was also contested by the Respondent No. 1/ Muhammad Rafique through filing of written reply.

3. The learned Additional District Judge dismissed the application to the extent of amendment in written statement and production of Cheque No. 37780401 whereas accepted the application to the extent of production of certified copies of Mutation No. 703, 749 and copy of Khasra Gardawari through impugned order dated 10.12.2013.

4. Through this civil revision, the petitioners have challenged the legality of impugned order dated 10.12.2013.

5. The learned counsel for the petitioners has argued that the predecessor-in-interest of the parties purchased the land in the name of Respondent No. 1/Muhammad Rafique and paid an amount through cheque No. 37780401, dated 10.03.2005. It is further argued that as the predecessor in interest Muhammad Hayat paid the amount of land measuring 12 Kanal purchased in the name of Muhammad Rafique/Respondent No. 1, so the gift mutations were validly executed in favour of petitioners and that is why the Respondent No. 1 was given less land than the petitioners.

6. The learned counsel for the petitioners further argued that the documents mentioned in the application under Order XLI Rule 27, CPC are public documents and also admissible in evidence. To strengthen his arguments, the learned counsel for the petitioners has placed reliance on 2007 SCMR 1117 (Ghulam Zohra and 8 others versus Nazar Hussain through Legal Heirs) and 2007 SCMR 231 (Ghulam Muhammad versus Mian Muhammad and another).

7. On the other hand, the learned counsel for the Respondents No. 1 and 2 vehemently opposed the revision petition and also supported the impugned order. He further argued that the documents mentioned in the application are not relevant to the present case and plea regarding amendment in written statement has already been mentioned in Para 14 of the written statement. He further argued that the provision of Order XLI Rule 27, CPC could not be pressed to fill in the lacunas in the case.

8. I have heard the arguments advanced by learned counsel of the parties with anxious consideration and perused the record.

9. The perusal of application under Order XLI Rule 27, CPC and under Order VI Rule 17 read with Sections 107 and 151, CPC clearly reveals that the proposed amendment is clearly mentioned in the Para 14 of the written statement but in the evidence the same has not been pressed. After framing of issues the petitioners could have filed an application for recasting of issues in accordance with their pleadings. As regards to the production of documentary evidence as additional evidence, the petitioners have failed to give any justification that as to why the same documents were not produced during the trial of the suit even the written statement was filed in the year 2008 and neither these documents were attached with the written statement to specifically deny the claim made by the Respondent No. 1 nor these were mentioned.

It would be expedient to refer to the provisions of Order VI Rule 17, CPC which reads as under:--

Rule 17 -- Amendment in pleadings--

"The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determine the real questions in controversy between the parties."

1. The bare perusal of above referred provision of law clearly reveals that the proposed amendment should only be allowed in such manner and on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties, but in the present case, the petitioners have filed application under Order VI Rule 17, CPC to introduce a new plea which do not relate to the controversy raised in the plaint as well as in the written statement.

2. I am of the opinion that the suit titled Muhammad Rafique vs. Muhammad Munir etc. is a suit for declaration where the plaintiff Muhammad Rafique has challenged the validity and originality of the gift mutations and purchase of land earlier in year 2005 do not relate to the present case, therefore the proposed amendment is not necessary to determine the real controversy regarding validity and originality of the gift mutations challenged in the plaint.

3. It would be expedient to refer to the provisions of Order XLI Rule 27, CPC which is reproduced as under:--

Rule 27 -- Production of additional evidence in appellate Court.

(i) the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if, (a) The Court from whose decree, the appeal is preferred has refused to admit the evidence which or to have been admitted, or

(b) The appellate Court requires any document to be produce or any witness to be examine to enable it to pronounce judgment, or for any other substantial cause, (c) Where-ever additional evidence is allowed to be produce by an appellate Court; the Court shall record the reasons for its admission."

1. The wording employed in above referred provision of law is couched in negative language and impose the conditions mentioned in the Clause (a) and Clause (b).

Clause (a) is not applicable to the present case but to the extent of Clause (b), suffice it to say that it is the discretion of the appellate Court to require any document to be produced or any witness to be examined for the purpose of enabling it to pronounce judgment. The appellate Court in the present case has rightly observed that acceptance of the application to the extent of production of cheque and the amendment in written statement would open the Pandora box.

The cheque which relates to year 2005, is not required by the appellate Court to decide the appeal on merits rather the production of the same cheque would result into introducing a new cause of action which may change the nature of the entire litigation.

1. It is correct that application for amendment may be filed at any stage in the interest of justice but while allowing such amendment the consideration for the Court should be that no such amendment should be allowed which is aimed at changing the complexion of the case altogether or would introduce a new case based on new cause of action.

2. With due deference to the judgments referred by the learned counsel for the petitioners, I am of the humble opinion that the judgment 2007 SCMR 1117 (Ghulam Zohra and 8 others versus Nazar Hussain through Legal Heirs) is not applicable in the present case rather the Honourable Supreme Court has held that appellate Court could admit additional evidence if same would promote ends of justice. As far the reliance upon 2007 SCMR 231 (Ghulam Muhammad versus Mian Muhammad and another); the ratio of the above said judgment do not providethat the documents irrelevant or changing the nature of the case could be produced in additional evidence.

3. In my humble opinion, the case-law referred by the learned counsel for the petitioners is of no help to the petitioners as in the above judgments, the August Supreme Court of Pakistan has not laid down the dicta that additional evidence is to be accepted in each and every case and also that through additional evidence, new facts be introduced which may change the entire complexion of the case.

4. This proposition could hardly be disputed that the principle object behind all legal 'formalities is to safeguard paramount interest of justice but at the same time which is equally important to bear in mind the well known maxim that equity follows the law; in cases where the law clearly applies; it has to be given full effect howsoever harsh it might appear to be. Normally legal technicalities and formalities should not be allowed to stand in the way of justice unless they present a hurdle which might lead to unsettlement and uncertainty of law.

5. For what has been discussed above, I am of the opinion that the learned Additional District Judge while passing the impugned order has not committed any jurisdictional error or material irregularity. Resultantly, this civil revision is dismissed.

(R.A.) Revision dismissed

PLJ 2015 Lahore 115 (DB) [Multan Bench Multan]

Present: Shezada Mazhar and Shah Khawar, JJ.

Mrs. IRENO WAHAB--Petitioner

versus

LAHORE DIOCESAN TRUST ASSOCIATION LIMITED--Respondent

C.M. No. 1383-C, 1385-C and 1386-C of 2013, R.F.A. No. 72 of 1990, heard on 22.5.2014.

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

----S. 12(2)--Decree was procured on basis of fraud and misrepresentation--Possession was procured through bailiff appointed by Executing Court--Malafide in order to protect litigation--Such practice will be practice in futility and to frustrate decisions--Validity--Such practice will be a practice in futility and to frustrate decisions passed by trial Court, High Court and Supreme Court--Petitioner could not make out a case of fraud and misrepresentation having committed by respondent--Decree has been procured due to fraud, misrepresentation and without jurisdiction, then there is no need to file a fresh suit but to assail same by way of filing application in Court, which has finally passed decree--If a decree has been procured collusively, any person having knowledge of same who is aggrieved, can challenge same by way of filing application in Court, having passed decree, to ensure that fraud and misrepresentation may not attain perpetuity--Cognizance in applications under Section 12(2), CPC must be taken after due diligence and not in a casual manner--Where from contents of application under Section 12(2), CPC, Court's arrive at a conclusion that application has been filed just to protract trial, it must be nibbed from bud--CM was dismissed. [P. 121] A, B, C & D

Ch. Abdul Ghani, Advocate for Petitioner.

Qazi Zia Zahid, Advocate for Respondent.

Date of hearing: 22.5.2014.

Judgment

Shah Khawar, J.--Through this judgment, we intend to dispose of C.M. No. 1383-C of 2013 (application under Section 12(2) of CPC), C.M. No. 1385-C of 2013 & C.M. No. 1386-C of 2013.

1. Before adverting to the application under Section 12(2), CPC filed by the petitioner against the judgment and decree dated 24.01.2001 passed by learned Division Bench of this Court, it will be appropriate to have a glance over the back ground of the case.

2. The Lahore Diocesan Trust Association Limited (Church Missionary Society), through Rev. Earnes Tak, Clerk in Holy Orders, 3 Mission Road, Lahore/Respondent No. 1 filed a suit against one Mrs. Irene Wahab, for possession in respect of Christ Church's Vicarge, known as "Kothi Padri Sahib" L.M.Q Road, Multan measuring 5-kanals and 10-marlas, together with the Pastor's Banglow Servant Quarters, Godowns and other buildings whole comprising of 11-Rooms, one Drawing Rooms. 04-Verandas, 02-Kitchens, 02-Bathrooms and 02-Latrines. It was contended in the suit that suit property known as "Kothi Padri Sahib" was attached to the Church and was Trust Property. It was occupied by late Cannon Bashir Ahmad Malik who was priest Incharge of the Church with permission of the plaintiff. Bashir Ahmad Malik retired on 30.06.1970 but on account of his service he was allowed to continue the possession of the property with the condition that he would run Sunday Services. The said Bashir Ahmad Malik died in 1973 leaving behind a widow and a daughter Mrs. Irene Wahab/Respondent No. 1. After the death of widow of Bashir Ahmad Malik, her daughter/Respondent No. 2 was asked to vacate the premises but she refused to handover the property to the plaintiff, hence, the suit.

3. Respondent No. 2/Mrs. Irena Wahab contested the suit alleging therein that the suit was barred by jurisdiction as well as by Order 2 Rule 2 of CPC; it was barred by time and was not properly valued for the purpose of Court fee and jurisdiction. On facts, Respondent No. 1 alleged that her possession over the suit property and perfected entitled being adverse to that of Respondent No. 2.

4. Keeping in view the divergent claims of the parties, twelve issued were framed. The parties adduced oral as well as documentary evidence in support of their claims. Vide judgment and decree dated 20.10.1990, the suit was decreed in favour of the Respondent No. 1.

5. Feeling aggrieved the Respondent No. 2 filed R.F.A. No. 72/1990 which was dismissed by this Court vide judgment dated 24.01.2001. Leave to appeal before the Hon'ble Supreme Court of Pakistan was also dismissed on 15.05.2001.

6. The present petitioner filed an application under Section 12(2), CPC before the learned Senior Civil Judge, Multan against the judgment/decree dated 22.10.1990, passed by the learned Senior Civil Judge, Multan. The said application was dismissed by the learned Senior Civil Judge, Multan on 31.07.2013 on the ground of in-competency of the Court hence, this C.M.No. 1383-C/2013 has been filed before this Court dated 09.09.2013 (Application under Section 12(2), CPC ). Respondent No. 1 filed reply to the CM.No. 1383/2013 in R.F.A.No. 72/1990- by raising preliminary objections and contested the same on facts. In preliminary objections the petitioner No. 1 claimed that the petition under reply is hopelessly barred by limitation; that no valid or legal resolution as required by law has been appended; that no documents as to support the claim of the petitioner of its being a juristic person have been filed; that no address of registered office of the petition is mentioned; that after passing of judgment/decree dated 24.01.2001, passed in R.F.A.No. 72/1990 and endorsed by the August Supreme Court of Pakistan vide judgment dated 15.05.2001, the judgment/decree dated 22.10.1990 has attained finality. It was further contended that earlier, vide order dated 02.11.2005 a learned Divisional Bench of this Court has dismissed CM.No. 1555/2005 in R.F.A No. 72/1990, an application under Section 12(2), CPC filed by one Daniel Altaf. He then filed Civil Petition No. 2743/2005 before the August Supreme Court of Pakistan, which was dismissed as not pressed.

7. The petitioner in the instant CM /application under Section 12(2), CPC has contended as under:--

"that it is an admitted fact that the disputed property originally belonged to the Church Missionary Society (CMS-E), incorporated in England, which was merged into the Church Missionary Trust Association (India) as described earlier, in pursuance of the Indian Church Act, 1927. The promulgation of Indian Church Act 1927, dissoluted the legal union between the Church of England and the Church of England in India. After the independence of Pakistan, the Church Missionary Trust Association (CMTA), India was renamed into the Church Missionary Trust Association (CMTA), Pakistan on 07-10-48. Since its birth that happened on 18th February, 1928, the petitioner's Association (CMTA) had become the exclusive and sole owner/trustee of all the programs, assets and properties of CMS-E, CMTAL-E and CEZ-E, The Hon'ble Courts remained unaware of this fact and fell into error as the fake CMTAL, London & Respondent No. 1 have no title or concern over the properties of the Church Missionary Society (CMS-E) after the promulgation of India Church Act, 1927, and this fact was kept in the dark by the Respondent No. 1, hence was ignored by the Hon'ble Courts.

that according to the revenue record the original owner/trustee of the disputed property was the Church Missionary Society (CMS-E) incorporated in England, and Respondent No. 1 deceitfully presented himself as owner/trustee of the disputed property and got decreed the suit for possession from the Courts through concealments and on the basis of fake & fabricated transfer deed, which is rootless, fictitious, & a forged document and has no effect upon the rights of petitioner.

that the learned trial Court neither inquired into the authenticity & genuineness of the documents produced by the Respondent No. 1 nor recorded any evidence for ascertaining the correctness & genuineness of the documents/transfer deed, which were produced by the Respondent No. 1 and were manipulated & prepared to grab the properties and the assets of the petitioner's Association for illegal personal gains. -

that the pleadings & record of trial Court revealed that the Whole matter was conducted in a slipshod manner without application of judicial mind, while the Respondent No. 2 remained silent during litigation regarding, the ownership of the deputed property, which adversely affected the petitioner's legal rights/ownership."

1. We have given our conscious consideration to the arguments advanced by learned counsel for the parties and perused the record.

2. Admittedly the suit was filed by Respondent No. 1 against Respondent No. 2 which was decreed vide judgment and decree dated 22.10.1990 by the learned Senior Civil Judge, Multan. Feeling aggrieved Respondent No. 2 filed R.F.A No. 72/90 which was dismissed on 24.01,2001 and same was affirmed by the Hon'ble Supreme Court of Pakistan vide its judgment dated 05.05.2001. Respondent No. 1 got possession of the suit property through Bailiff of learned Executing Court, Multan on 18.08.2008. Throughout this period, the present petitioner did not figure out and remained in deep slumber.

3. The petitioner has relied upon an Instrument of Transfer from one trustee to another made on 05.05.1956 by Church Missionary Trust Association Limited of London, a company incorporated in England under the Companies (Consolidation) Act 1909. Though its Attorney Reverend Mr. R.W.F. Wootton Clerk in Holy Orders residing at Gujranwala, Pakistan whereby the Lahore Diocesan Trust Association Limited was appointed as the Trustee. The petitioner has filed copies of Jamabandi for the year 1951-52 in support of his version and a certificate issued by Provincial Assistant Registrar Joint Stock Companies Sindh, Karachi dated 21.04.2011, confirming that M/s Church Missionary Trust Association is registered vide registration dated 21.08.1928 as joint stock company.

On the other hand, Respondent No. 1 has annexed certificate of Incorporation dated 22.12.1942 No. 105 LR of 1942-43, issued by Registrar/Joint Stock Company Punjab and Assistant Registrar J/S/Companies Lahore, last Certificate of incorporation dated 11.06.2012 registered by Registrar J/S/Companies, City District Court, Lahore, memorandum of Association, Articles of Association in accordance with the Companies Act, 1913, certificate of Transfer of properties from the Church Missionary Trust Association to Respondent No. 1, power of Attorney dated 14.04.1955, a schedule of properties under the control of Respondent No. 1 which finds mentioned at Sr.No. 37 and Instrument of Transfer dated 05.05.1956.

1. This is an admitted fact that ever since the passing of judgment/decree dated 22.10.1990 by the leaned Senior Civil Judge, Multan, litigation remained pending between Respondent No. 1 and Respondent No. 2, till the decision of the Hon'ble Supreme Court of Pakistan which finally affirmed the judgment/decree passed under challenge. Even after the restoration of possession of the disputed property in favour of Respondent No. 1, it could not be believed that the petitioner remained unaware of litigation inter-se Respondent Nos. 1 & 2.

2. The copy of proclamation in the daily "Pyara Watan" dated 10.08.2012 enclosed by the petitioner reveals that the petitioner had entered into agreement of lease with one Dr. Muhammad Ihsan, ought to be registered before the Sub-Registrar, Multan and objections were invited. Question arises that when the disputed property had already been restored in favour of Respondent No. 1 on 18.09.2008 through the Bailiff of the Executing Court, then how the petitioner was competent to execute the agreement of lease in favour of Dr. Muhammad Ahsan? We are of the firm view that even being in the knowledge of the above litigations, the petitioner tried to lease out the disputed property to one Dr. Muhammad Ahsan and due to the vigilance of Respondent No. 1, the petitioner did not succeed in the same and filed the. instant CM/application under Section 12(2), CPC.

3. One of the grounds of present CM. has been that the petitioner was a necessary party to the main suit filed by Respondent No. 1 who in a deceitful manner did not implead the petitioner as a defendant. Conversely, Respondent No. 1 contended that since the petitioner had nothing to do with the disputed property and moreover the petitioner had no nexus with the same, so question of impleading him as party did not arise.

4. Before parting with the judgment in the instant case it is necessary to understand the spirit of Section 12(2) of CPC which is reproduced herein under:

"Section 12(2)CPC "where a person challenged 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."

In the instant CM. the petitioner has assailed the judgment and decree having allegedly procured by Petitioner No. 1 on the basis of fraud and misrepresentation. To establish these ground, the petitioner was required to prove the following aspects:--

(i) the fraud and misrepresentation was procured during the proceedings in the Court;

(ii) alleged fraud included untrue statements by Respondent No. 1 who did not believe to be true and has committed active concealment of facts;

(iii) judgment was obtained on the basis of forged documents;

(iv) the decree was collusively obtained.

None of the above important ingredients have been met by the petitioner. Admittedly the suit for possession filed by Respondent No. 1 was emphasizely contested by Respondent No. 2, up till the Hon’ble Supreme Court of Pakistan and nowhere, Respondent No. 2 questioned the ownership of the disputed property having vested in the name of Respondent No. 1. Moreover, the possession of the disputed property was procured by Respondent No. 1 through a Bailiff appointed by the learned Executing Court.

1. The application in hand has been filed improperly and is based upon mala fide in order to protract litigation, that is why we are not inclined to further proceed with the matter by way of framing issues. Such practice will be a practice in futility and to frustrate the decisions passed by the learned trial Court, this Court and above all, the Hon'ble Supreme Court of Pakistan. The petitioner could not make out a case of fraud and misrepresentation having committed by Respondent No. 1. Reliance could be placed on Mst. Nasir Khatoon's case [2003 SCMR 1050]. It is held by the Hon'ble Supreme Court of Pakistan that the Court having seized of an application under Section 12(2), CPC is not bound to frame issues, where the applicant could not meet the criteria for filing such application. This view has also been endorsed in Dadabhay Cement's case [PLD 2002 (SC) 500].

2. The logic of incorporation of Section 12(2), CPC in the statute is that in case, decree has been procured due to fraud, misrepresentation and without jurisdiction, then there is no need to file a fresh suit but to assail the same by way of filing application in the Court, which has finally passed the decree. In Section 12(2), CPC word used "a person" has wider implications. This has been deliberately used by the legislature on the notion that if a decree has been procured collusively, any person having knowledge of the same who is aggrieved, can challenge the same by way of filing application in the Court, having passed the decree, to ensure that fraud and misrepresentation may not attain perpetuity.

3. We have noted with great concern that it has become a common phenomenon that after a decree has attained finality, the losers through other persons, not party to the proceedings, file such applications to frustrate the due process of law, arrived at by the competent Courts of law. Cognizance in applications under Section 12(2), CPC must be taken after due diligence and not in a casual manner. In case, where from the contents of application under Section 12(2), CPC, the Court's arrive at a conclusion that the application has been filed just to protract trial, it must be nibbed from the bud.

4. Our view is also supported by the fact that previously, this Court vide order dated 02.11.2005 passed in CM.No. 1555/2005 in R.F.A.No. 72/1990 has dismissed application under Section 12(2), CPC filed by one Denial Altaf which was assailed by him in CP.No. 2743/05 before the Hon'ble Supreme Court of Pakistan and the same was dismissed as withdrawn.

5. For what has been discussed above, we do not find any force in the instant CM. which is hereby dismissed.

(R.A.) C.M. dismissed

PLJ 2015 Lahore 122 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD HANIF and another--Petitioners

versus

Mst. RAZIA BIBI and another--Respondents

C.R. No. 409 of 2014, decided on 10.4.2014.

Land Revenue Act, 1967 (XVII of 1967--

----S. 42--Contract Act, 1872, S. 25--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration--Illiterate pardah nashin rastic women--Testified on oath that neither she nor her sister made sale of land and not receive any sale consideration--Onus to prove transaction--At time of alleged attestation of mutation, eye sight was weak and somewhat impaired--Identified as lambardar--Photographs of vendors pasted to mutation did not bear signature and official stamps--Failed to prove transaction and payment of sale consideration--Validity--No agreement can come into being without payment of consideration--Admission of affixing thumb impression to a document by an illiterate would not lead to conclusion that he/she was admitting execution of transaction in question--That in case of illiterate pardahnasheenlady, Court would be very careful in recording findings as to execution of any agreement by her--Petitioners had failed to point out any misreading and non-reading of evidence on part of Courts below--Both impugned judgments being unexceptionable, there is no merit in revision petition, which was hereby dismissed. [Pp. 126 & 127] A, B, C & D

Mr. MuhammadYounas Sheikh, Advocate for Petitioner.

Date of hearing: 10.04.2014.

Order

This civil revision is directed against the judgments and decrees dated 20.10.2011 and 21.3.2014 passed by learned Civil Judge, Layyah and an Additional District Judge Leyyah, respectively, whereby the suit of the respondents was decreed and an appeal instituted by the petitioners was dismissed.

1. Concisely put, the facts are that Mst. Razia Bibi and Mst. Kalsoom Bibi, respondents herein instituted a suit for declaration along with perpetual and mandatory injunctions, contending therein that they are illiterate. Purdah Nashin rustic women, who are owners of land measuring 42 Kanals bearing Khewat No. 84, situated at Chak No. 332/TDA. Tehsil and District Layyah and that sale Mutation No. 38 dated 21.7.2005 was the outcome of fraud and misrepresentation. It was further averred in the plaint that they never sold the suit land to Muhammad Hanif and Abdul Latif, the petitioners herein nor did they receive any sale consideration therefor. It is pertinent to mention that the petitioners are real brothers of the respondents/plaintiffs.

2. The defendants/petitioners entered appearance and filed written statement, controverting the pleas of the plaintiffs both on the factual and legal plane. In addition to raising preliminary objections to the maintainability of the suit, it was specifically asserted by them that they purchased the suit land for a consideration of Rs.2,00,000/- from the plaintiffs. It was further maintained by them that possession was delivered to them in the wake of the attesting of Mutation No. 381 dated 21.7.2005.

3. The divergent pleadings of the parties crystallized into the following issues:

ISSUES:

1. Whether the plaintiffs are owners in possession of the suit land and the defendants have no concern with any part of the suit land and Mutation No. 381 dated 21.7.2005 in favour of defendants against the plaintiffs is against law, facts, result of fraud and impersonation and liable to be cancelled? OPP

2. Whether the plaintiffs are entitled to the decree of declaration as prayed tor? OPP

3. Whether the plaintiffs are entitled to the decree of permanent injunction as prayed for? OPP

4. Whether the plaintiffs have no cause of action?

5. Whether the instant suit is not maintainable in its present form? OPD

6. Whether the instant sun is improperly valued for the purpose of Court fee and jurisdiction? OPD

7. Whether the instant suit is bad for non joinder of necessary parties? OPD

8. Whether the plaintiffs are estopped by their words and conduct to file the instant suit? OPD

9. Whether the instant suit is false, frivolous and defendants are entitled to receive Rs.25.000/- as special costs? OPD

10. Relief.

11. In order to prove their case, one of the plaintiffs, Mst. Kalsoom Bibi appeared as P.W.I and testified on oath that neither she nor her sister, Mst. Razia Bibi had made sale of the suit land to the petitioners. She also deposed that the plaintiffs did not receive any sale consideration from the plaintiffs. In their documentary evidence, the plaintiffs got exhibited copy of Mutation No. 381 as Exh.P. 1 and an extract from the Death Register relating to late Muhammad Siddique as Exh.P.2. It may be added here that Rana Muhammad Siddique was the predecessor-in-interest of the parties to the suit.

12. In order to rebut the evidence produced by the plaintiffs' side, one of the defendants, Abdul Latif appeared as D.W.1, and they also examined Muhammad Nawaz D.W.2, Farzand Ali D.W.3, Munshi Abdul Sattar D.W.4, Mukhtar Ahmad D.W.5 and Malik Muhammad Ibrahim D.W.6. Besides, the defendants tendered in evidence copy of Mutation No. 381 dated 21.7.2005 as Exh.D-1 and closed their evidence.

13. Having appraised the evidence produced by the parties, the learned trial Court seized with the suit decreed the suit of the plaintiffs/respondents vide judgment and decree dated 20.10.2011. Feeling aggrieved, the petitioners herein instituted an appeal before learned District Judge, Layyah, which ultimately came on the file of learned Additional District Judge Layyah, who concurred with the findings recorded by the learned trial Court and dismissed the appeal vide judgment and decree dated 21.3.2014. Hence this revision petition.

14. In support of the revision petition, Mr. Muhammad Younas Sheikh Advocate, learned counsel for the petitioners contends that the suit was absolutely barred by time; that the petitioners/defendants had produced all the relevant evidence and they fulfilled the requirements of Section 42 of W.P. Land Revenue Act, 1967, but their evidence was discarded without any rhyme and reason; that both the impugned judgments suffer from the vice of misreading and non-reading of the evidence. It was also lamented by him that the onus to prove the transaction in question was wrongly shifted on to the defendants/petitioners. According to him, the plaintiffs did not produce any credible evidence, and only one of the plaintiffs appeared as her own witness. He forcefully argues that in the face of this slender evidence, concurrent findings should not have been recorded against the petitioners.

15. I have heard the learned counsel for the petitioners at length and perused the record appended to the revision petition with his assistance.

16. I have carefully gone through the judgments impugned by the petitioners. In my view, both the Courts were at pains to advert to each and every aspect of the matter under consideration. It was taken note of by them that the plaintiffs are real sisters of the defendants, who are married and are living in District Khanewal, while the suit land lies in District Layyah. Both the learned Courts below underscored that the plaintiffs did not have any independent advice at the time of the alleged attesting of Mutation No. 381 dated 21.7.2005. It also did not escape their notice that the defendants failed to prove the transaction in question. In point of fact, the defendants did not make any conscious effort to prove as to where, when and how the transaction in question was made. The testimony of Muhammad Nawaz (D.W.2) sent a death knell to the case of the defendants. In cross-examination, he admitted that at the time of the alleged attestation of mutation in question, his eyesight was weak and somewhat impaired. It was also not denied by him that he was dumb. Strangely enough, he is said to have identified the plaintiffs as Lamberdar of the village but he expressed his ignorance about the whereabouts of the plaintiffs and as to where they were living after marriage. Likewise, the testimony of Abdul Latif (D.W.1), one of the defendants strikes at the roots of the case of the defendants. In cross-examination, he stated that he paid the sale consideration to the plaintiffs in the presence of Tehsildar. On the other hand, the Tehsildar, Malik Muhammad Ibrahim (D.W.6) stated unambiguously, categorically and unequivocally that no money was paid in his presence. He also admitted that the photographs of the vendors/plaintiffs pasted to the mutation in question did not bear his signatures, official stamps etc. He went on to state that looking at the snaps, he cannot say as to which one is Mst. Razia and which photo is of Mst. Kalsoom Bibi.

17. In this state of affairs, both the learned Courts below arrived at the correct conclusion that the defendants had failed to prove both the transaction in question and the payment of the alleged sale consideration to the plaintiffs. It goes without saying that no agreement can come into being without the payment of consideration, as has been laid down by the legislature in Section 25 of the Contract Act, 1872.

18. Furthermore, there is not an iota of evidence produced by the petitioners to show that an independent advice was available to the plaintiffs at the relevant time, it bears repeating that both the plaintiffs/respondents are married in Khanewal. Had the transaction in question not been cloaked in mystery and the result of fraud and misrepresentation, the petitioners would have ensured the presence of their husbands or sons for that matter. It has also not been controverted by the petitioners that both the plaintiffs are illiterate, which is also borne out by the fact that mutation in question bears their purported thumb impressions, not their signatures.

19. In a string of judgments, it has been held by the superior Courts that even the admission of affixing thumb impression to a document by an illiterate would not lead to conclusion that he/she was admitting the execution of the transaction in question. In this respect reference may well be made to the judgment of the apex Court reported as "Ch. Muneer Hussain v. Mst.Wazeeran Mai alias Mst.Wazir Mai” (PLD 2005 S.C. 658) in which it was held as under:

“If a document is alleged to be signed or to have been written by any person, the signature or writing must be proved in that person's handwriting, the said Article places emphasis on the proof of identity of author of questioned documents and this Article does not say that mere proof of handwriting/ signatures/thumb-impressions of executant, will prove truth of the said document. Reliance in this regard was placed on Madhu Lal v. Asian Assurance Company (AIR 1954 Bom. 305), Bank of Poona v. N.C. Housing Society Ltd. Poona and others (AIR 1968 Bom. 106), Hamid Qayyum and others v. Muhammad Azeem and another (PLD 1995 SC 381) Sanaullah and another v. Muhammad Manzoor and another (PLD 1996 5C 256).”

1. As for the onus of proof regarding the genuineness of a transaction with a Pardahnasheen lady, the following statement of law made in “In Amirzada Khan and another v. Itbar Khan and others (2001 SCMR 609) was reiterated and cited with approval in the above-quoted judgment of "Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst.Wazir Mai" (PLD 2005 S.C. 658).

“In Amirzada Khan and another v. Itbar Khan and others (2001 SCMR 609), this Court held as follows:--

“…… It is by now well-established requirement of law that burden of proof in respect of a genuineness of a transaction with a 'Pardahnasheen' lady and a document allegedly executed by such a lady lies on the person who claims benefit from the transaction or under the documents. Such a person is legally obliged to prove and satisfy the Court; firstly, that the document was executed by 'Pardahnasheen'lady and secondly, that she had complete knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. The evidence on record as discussed by the Appellate Court and the High Court does not satisfy the above standard. The plaintiff failed to prove that at any stage during the, proceedings in the mutation any close relation of the vendor-lady was associated. It is also settled principle of law that mere reliance on mutation for certain transaction would not be sufficient for proof of the transaction as covered by the mutation unless some cogent evidence proving the transaction itself irrespective of the mutation is examined in the Court. As the above requirements laid down from time to time for a transaction with Pardahnasheenlady have not been satisfied in this case, therefore, the Appellate and the High Court were correct to refuse to enforce such a transaction and that rightly concurred in the dismissal of the suit"

In Ghulam Muhammad v. Farooq Ahmed and others (2002 SCMR 1801), it was reiterated by this Court that in the case of illiterate Pardahnasheenlady, Court should be very careful in recording findings as to the execution of any agreement by her."

1. The upshot of the above discussion is that the petitioners have failed to point out any misreading and non-reading of the evidence on part of the learned Courts below. Both the impugned judgments being unexceptionable, there is no merit in the revision petition, which is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 128 [Multan Bench Multan

Present: ShahKhawar, J.

JALEES AHMED and 3 others--Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary Irrigation Department, Lahore--Respondent

W.P. No. 2072 of 2013, decided on 29.4.2014.

Punjab Employees (Efficiency & Disciplines) Accountability Act, 2010--

----S. 13(6)--Constitution of Pakistan, 1973, Art. 199--Ordered for de-novo inquiry--Interim order—Initiation of disciplinary proceedings public servant--Corruption and embezzlement of public money--Validity--It is an established principle of law that Courts cannot interfere in disciplinary matters that too provided in a special law like PEEDA Act, 2006--Competent authority be given powers to place a check over findings of inquiry officers--High Court while exercising jurisdiction under Art. 199 of Constitution, cannot indulge itself in matters pertaining to terms and conditions of service of civil servants and that too when de novo inquiry has been ordered by competent authority by exercising a power which vests in competent authority under Section 13(6) of PEEDA Act, 2006--If petitioners and other persons are aggrieved from any of final order passed by or competent authority, law provides them remedy of filing departmental appeal and review and even if not satisfied, to invoke jurisdiction of Punjab Service Tribunal under PEEDA Act, 2006--High Court under Art. 199 of Constitution cannot restrain any public functionaries from proceedings under law--Government is seized of inquiry under Section 13(6) of PEEDA Act, 2006, which cannot call for interference by High Court in writ jurisdiction. [Pp. 131 & 132] A, B, C, D & E

Mr.Kadim Nadeem Malik, Advocate for Petitioners.

Mr.Aurangzaib Khan, AAG for Respondent.

Date of hearing: 29.4.2014.

Order

Through the instant writ petition, the petitioners have challenged the varies of order dated 24.01.2013, whereby the respondent has ordered for holding of comprehensive de novo inquiry into the case.

1. The brief facts of the case are that on the complaint of Govt. of the Punjab Irrigation & Power Department, Lahore 24 Officers/officials of the respondent who were posted at Muzaffargarh Canal Division, Muzaffargarh, including the petitioners, were ordered to be proceeded by the Anti-Corruption Establishment Punjab. Resultantly, a Committee was constituted to probe into the matter. According to the report of Committee, the petitioners along with others were allegedly held involved in misappropriation of public funds and Muhammad Latif Deputy Director PMO (P & R), Zone Lahore was directed to conduct an inquiry regarding the work charged establishment payments in Muzafargarh Division. The Inquiry Officer in his report found involved the petitioners and 20 other Officers/officials. The matter was referred to Anti-Corruption Establishment. Consequently, a case FIR No. 10/2010 under Sections 420, 468, 471, 409 & 109, PPC read with Section 5 of the Prevention of Corruption Act No. II, 1947 was registered regarding embezzlement of Government funds in the work procurement of flood fighting material in Muzaffargarh Canal Division. After thorough probe, the Anti-Corruption Establishment prepared report under Section 173 Cr.P.C. read with Section 169 of Cr.P.C. and recommended cancellation of the FIR. The learned Special Judge, Anti-Corruption, Lahore while in agreement with the report, discharged the petitioners and others vide order dated 30.6.2011. Simultaneously, a departmental action was also proposed and inquiry was also initiated vide order dated 30.09.2010 under the Punjab Employees Efficiency, Discipline & Accountability Act, 2006 and one Mr. Khalid Hanif Bhatti was appointed as Inquiry Officer to proceed against the petitioners and others under Section 5 read with Section 9 of the PEEDA, Act, 2006. The said Inquiry Officer on 09.10.2012, submitted report to the respondent wherein petitioners along with others were exonerated from the charges. Vide order dated 24.01.2013, the respondent by invoking the jurisdiction under Section 13 of PEEDA Act, 2006, ordered for de novo inquiry.

2. The learned counsel for the petitioners contends that the respondent was not competent to order for de novo inquiry in the light of the facts that the Anti-Corruption Establishment after registration of the FIR against the petitioners and others had exonerated them from the charges of corrupt practice and discharge report in terms of Sections 173 and 169, Cr.P.C. was prepared on the basis of which, the learned Special Judge Anti-Corruption, Lahore, discharged the petitioners from the charges, the respondent has the power under Section 13(6) of the PEEDA Act, 2006 to order for a de novo inquiry, but maintained that same could only be done after the competent authority is satisfied; that the inquiry proceedings have not been conducted in accordance with the law or the facts and merits of the case have been ignored and there are sufficient grounds available after recording reasons in writing, remand the inquiry to the Inquiry Officer or to the Inquiry Committee or may order for a de novo inquiry. The learned counsel for the petitioners further submits that vide the impugned order, no solid reasons and grounds were assigned to hold de novo inquiry and finally that the order has been passed in a mechanical manner, which is not sustainable in the eyes of law.

3. Notices were issued to the respondent. He filed report and Parawise comments. The action of the respondent was supported by maintaining that the competent authority after having gone through the inquiry report observed that the inquiry has been conducted in a slipshod manner and merits of the case have not been fully accounted for by the Inquiry Officer according to the PEEDA Act, 2006, therefore, the Secretary Irrigation/Competent Authority ordered for holding of a comprehensive inquiry into the matter while exercising powers under Section 13(6) of PEEDA Act, 2006. It was further mentioned that the Officers are prima facie found involved in the embezzlement of public funds in the procurement of Flood Fighting Material amounting to Rs.26.44 Millions and payment of Rs.94.633 Millions without tenders during financial year, 2009-2010.

4. The learned AAG appearing on behalf of the respondent has maintained that rather the petitioners and other officers have been exonerated by the Anti-Corruption Establishment from criminal charges, but the department independently carried out probe into the allegation of corruption and misappropriation of funds under the PEEDA Act, 2006. He further maintained that criminal proceedings and departmental proceedings can be initiated simultaneously. He also submitted that despite proceedings against the delinquents under the criminal law, independent disciplinary proceedings can also be initiated against the Public Servants, found involved in the corruption and embezzlement of the public money. In support of his contentions he has placed reliance on the judgment passed by the Honourable Supreme Court of Pakistan reported as Government of N.-W.F.P and others vs. Asif lqbal(2010 SCMR 1345), Syed Muhammad Iqbal Jafri vs. Registrar, Lahore High Court, Lahore (2004 SCMR 540) & Muhammad Iqbal vs. District Police Officer, Sahiwal and another (2011 SCMR 534).

5. Heard. Record perused.

6. From bare reading of the impugned order, it reflects that the respondent had only ordered for de novo inquiry which was an interim order. The contentions raised by learned counsel for the petitioners are not convincing. The competent authority according to Section 13(6) of the PEEDA Act, 2006, is competent to order for de novo inquiry after recording reasons in writing in case he finds that the inquiry proceedings have not been conducted according to the facts and merits of the case. In the impugned order, the competent authority, has very candidly held that the inquiry has been conducted in a slipshod manner and merits of the case have not been fully accounted for by the Inquiry Officer according to PEEDA Act, 2006. Hence, vide order dated 24.01.2013, appointed one Mr. Inayat Ullah Cheema, Superintending Engineer, LCC (W) Circle, Faisalabad as Inquiry Officer vide order dated 24.01.2013 to conduct de novo inquiry against the petitioners and others. In the same manner in accordance with Section 9(1)(c) read with Section 12 of the Act, ibid, the Executive Engineer, Muzaffargarh Canal Sub Division, was appointed as Departmental Representative and the petitioners and other officers/officials were directed to submit their written defence to the Inquiry Officer within seven days. The Inquiry Officer was required to submit recommendations within a period of 60 days from initiation of inquiry.

7. It is an established principle of law that the Courts cannot interfere in the disciplinary matters that too provided in a special law like PEEDA Act, 2006. While promulgating the Act, ibid, this was in the mind of the legislature that the competent authority be given powers to place a check over the findings of Inquiry Officers. In Section 13 of the Act, ibid, the competent authority has been authorized to pass an order on receipt of report from the Inquiry Officers or Inquiry Committee, if same is not in accordance with law.

8. This Court while exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, cannot indulge itself in the matters pertaining to the terms and conditions of service of the civil servants and that too when the de novo inquiry has been ordered by the competent authority by exercising a power which vests in the competent authority under Section 13(6) of the PEEDA Act, 2006. The petition in hand is pre-mature. The petitioners and the other Officers and Officials have ample opportunity to defend themselves by way of submitting their written defence to the Inquiry Officer within seven days and the law has provided them all opportunities to defend themselves by way of even cross-examining the witnesses and to rely upon any record.

9. The public functionaries under the Constitution and law are duty bound to do anything they are permitted by law to do or anything they are required by law to do. If the petitioners and other persons are aggrieved from any of the final order passed by the Inquiry Officer or the competent authority, the law provides them remedy of filing departmental appeal and review and even if not satisfied, to invoke the jurisdiction of the learned Punjab Service Tribunal under the PEEDA Act, 2006.

10. The High Court under Article 199 of the Constitution cannot restrain any public functionaries from proceedings under the law. This principle has been enunciated by the Honourable Supreme Court of Pakistan in the case of PAKCOM Limited and others vs. Federation of Pakistan and others (PLD 2011 Supreme Court 44). The relevant portion of the judgment is incorporated here under:--

“The special forums created under statute such like Administrative Tribunals and Authorities are "judges of the sufficiency of evidence and necessity, expediency and reasonableness of the action to be taken. The High Court in exercise of its jurisdiction under Article 199 cannot sit as a Court of Appeal and pronounce upon the sufficiency, quality or quantum of evidence on which the finding of an Administrative Authority its based. The High Court in writ jurisdiction can only examine the legality of the impugned order. Where discretion is vested under the law in a statutory body the mode of exercising the discretion cannot be interfered with by the Court." Muzaffar Ali Shah v. Registrar Co-operative Societies (PLD 1968 Kar. 422), Abdul Hafeez v. Chairman, Municipal Corpn. (PLD 1967 Lah. 1251), Hassan Muhammad v. Settlement Commissioner (1982 SCMR 969), Budhu Ram v. Peare Lal (AIR 1952 All. 916)."

1. I see no infirmity in the impugned order passed. The respondent is seized of the inquiry under Section 13(6) of the PEEDA Act, 2006, which cannot call for interference by this Court in the writ jurisdiction. The writ petition being pre mature and not competent is hereby dismissed. The respondent is at liberty to proceed departmentally against the petitioners as well as other civil servants strictly in accordance with law by providing all opportunities of defence and fair trial to the them.

(R.A.) Petition dismissed

PLJ 2015 Lahore 133

Present: Atir Mahmood, J.

NOOR INAYAT--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, TANDLIANWALA, DISTRICT FAISALABAD and 2 others--Respondents

W.P. No. 14838 of 2012, heard on 15.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for dissolution of marriage and recovery of dowry article--Question of--Whether plaintiff was entitled to recover dowry articles as per list annexed with plaint--Suit for recovery was partially decreed--Gold ornaments were not decreed simply on presumption that gold ornaments are usually kept by ladies with them--Validity--Since there was a categorically assertion that petitioner was ousted from house of respondent in three wearing apparels, then it was incumbent upon respondent to prove through some cogent evidence that she was not ousted from the house Courts below had failed to take into consideration evidence of parties in its true perspective--Petition was allowed.

[P. 137] A

Mr.Sarmad Ahmed Ghani, Advocate for Petitioner.

Proceeded against exparte on 19.3.2014 for Respondents.

Date of hearing: 15.5.2014.

Judgment

Brief facts of the case are that the petitioner filed a suit for dissolution of marriage and recovery of dowry articles before the learned Judge Family Court Tandlianwala on 01.03.2011. The averments contained in the plaint are that the petitioner was married with defendant 1½ years before in accordance with Muslim Rites; that at the time of marriage, she was given valuable dowry, articles; that after sometime, the relations between the parties became strained and the respondent started to beat and maltreat the plaintiff; that he ultimately kicked her out of his house in wearing apparels six months prior to the institution of the suit; that the dowry articles are lying with the respondent; that the respondent is a man of bad character, therefore, she cannot live with her any more. The respondent contested the suit by filing written statement. Out of divergent pleadings of the parties, following issues were framed:

"ISSUES

1. Whether the plaintiff is entitled to recover dowry articles as per list annexed with the plaint or in lieu its price Rs. 496500/- ? OPP

2. Relief."

3. After recording the evidence and hearing both sides, learned Judge Family Court, Tandlianwala vide judgment and decree dated 24.12.2011 partially allowed the suit of the petitioner for recovery of dowry articles as per list annexed with the plaint except Items No. 1, 28, 29, 30 and 31 or in alternate a sum of Rs. 90,000/-. The suit of the petitioner for dissolution of marriage was also decreed. Feeling aggrieved, both sides filed appeals which were dismissed by learned lower appellate Court vide judgment and decree dated 21.04.2012 maintaining the judgment and decree of learned Family Court. Hence this writ petition.

4. The learned counsel for the petitioner has contended that the learned Courts below have failed to take into consideration the fact that the petitioner in her cross-examination has given details of the dowry articles given to her at the time of marriage; that the impugned judgments and decrees suffer from misreading and non-reading of evidence; that the petitioner has successfully proved her case beyond any shadow of doubt; that DWs themselves admit that it was a watta satta marriage wherein the sister of the respondent was married with brother of the petitioner and was given dowry articles of Rs. 5/6 lacs and that the petitioner was also given the dowry articles of the same value, therefore, this writ petition be allowed and impugned judgments and decrees be modified to the extent of allowing the suit of the petitioner as prayed for. He has relied upon the law laid down in case cited as Muhammad Umar Islam vs. Mst. Iram Shezadi etc. (NLR 2009 Civil 303).

5. The respondent has already been proceeded against ex-parte vide order dated 19.03.2014.

6. Arguments heard. Record perused.

7. The main grievance of the petitioner is that despite the fact that the petitioner categorically proved her case through production of credible evidence but learned Courts below decreed her suit for recovery of dowry articles much below the claim of the petitioner which she deserved to.

8. Perusal of the plaint reflects that the petitioner asserted that she was given dowry articles at the time of her marriage with the respondent according to the list appended with the plaint as Mark-A. She asserted that she was ousted from the house of the respondent in three wearing apparels after severe beating and her entire dowry articles are lying in possession of the respondent. The respondent while filing written statement completely denied the delivery of dowry articles to the petitioner. Out of divergent pleadings of the parties, issues were framed and evidence led by the parties was recorded.

9. In order to prove her assertions, the petitioner appeared as PW-1 as her own witness and submitted her affidavit as Exh. P1 wherein she deposed in line with the averments of the plaint. In cross-examination, she replied in affirmative that the list of dowry articles was prepared at the time of the marriage. In cross-examination, she elaborated not only the description of dowry articles including the gold ornaments but also their prices. She also stated that her marriage with the defendant was a watta satta marriage as sister of the respondent was married with her brother. However, a suggestion that she was not given any dowry articles was categorically denied by her.

10. PW-2 Abdul Ghaffar (brother of the petitioner) deposed while filing his affidavit as Exh.P2 corroborating the stance of the petitioner. In cross-examination, he admitted that the receipts of purchase of dowry articles are not appended with the plaint. He admitted that the list of dowry articles which was prepared on spot had been destroyed. He admitted that he did not mention details of the dowry articles or their prices in his examination-in-chief. He stated that he was told by his sister that she has come out empty handed from the house of the respondent. He denied the suggestion that the list of dowry articles was prepared by him. Volunteered, it was prepared by his sister. Muhammad Ali Khan while appearing as PW-3 filed his affidavit as Exh.P3 in line with the contents of the plaint as well as supporting the version of the petitioner wherein he deposed that the dowry articles worth Rs. 496,500/- were given to the petitioner at the time of her marriage. A suggestion was put to this witness that the petitioner was given the same dowry articles as were given to Bashiran (sister of the respondent who got married with brother of the petitioner). This suggestion is an implied admission on the part of the respondent that the dowry articles were given to the petitioner at the time of her marriage and this suggestion also contradicts the stance taken by the respondent in his written statement wherein he categorically denied the giving of any dowry articles to the petitioner by her parents rather it was asserted in the written statement that the expenses of the marriage were borne by the respondent. No suggestion was put to any of the plaintiff’s witnesses that the expenses of the marriage ceremony were borne by the respondent.

11. In rebuttal, DW-I Muhammad Ashraf, the respondent, filed his affidavit as Exh.D1 denying the delivery of dowry articles to the petitioner by submitting that since it was a love marriage and the parents of the petitioner as well as her other relatives were not happy with this marriage, therefore, no dowry articles were given to the petitioner and a condition was imposed that sister of the respondent Bashiran will marry with brother of the petitioner which was fulfilled by the respondent side. In cross-examination, he admitted that in this marriage of watta satta, his parents were happy. He also admitted that the petitioner has five brothers. However, he denied that her two brothers were employed: one as Manager of Service Shoe Store and the other as an Agriculturist. He denied that the marriage of the petitioner was arranged by his parents and brothers. He also denied that the dowry articles were given to the petitioner according to the list Mark-A valuing Rs. 496,500/-. He admitted that he had given dowry articles to her sister. This stance of the respondent supports the version of the petitioner as established through cross-examination upon PW-3 that dowry articles of the same amount were given to the petitioner as were given to Bashiran Bibi (sister of the respondent). He denied that the petitioner was ousted from the house after severe beating.

12. DW-2 Muhammad Sarwar filed his affidavit as Exh.D2 supporting the contents of the written statement filed by the respondent. However, in cross-examination, he took a different stance by denying the suggestion that parents of the parties were happy upon watta satta marriage. This witness denied that two brothers of the petitioner were employed. He showed his ignorance that one brother Abdul Ghaffar is Manager in Service Shoe Store. He admitted that marriage of the petitioner was managed by her parents. However, he denied the suggestion that the dowry articles worth Rs. 496,500/- were given to the petitioner according to the list but at the same time, he admitted that the parents of the respondent had given dowry articles worth Rs. 5/6 lacs to their daughter Bashiran Bibi. This part of the statement of DW-2 is taken into consideration with suggestion put to PW-3 which reads as under:

"یہ غلط ہے کہ مدعیہ کی شادی سے رشتہ دار خوش نہ تھے۔ غلط ہے کہ جتنا سامان مدعیہ کو دیا گیا تھا اتنا سامان بشیراں کو دیا گیا تھا۔"

This is sufficient to establish that the dowry articles given to the petitioner were if not more than Rs. 5/6 lacs but were at least equal to the same value.

1. DW-3 Mehboob Alam who is brother of the petitioner and brother-in-law of the respondent supported the contention of the respondent by submitting that his parents are poor having no landed property and no dowry articles were given to the petitioner at the time of her marriage. In cross-examination, he denied that his marriage of watta satta was with the consent of the parents. He denied that sister of the respondent is rehabilitating with him. He denied that he has come to make the statement on the asking of the respondent. He, however, admitted that Bashiran Bibi was given sufficient dowry articles. He did not remember the price of dowry articles. He also admitted that some dowry articles were given to his sister.

2. After recording evidence of the parties, the learned Family Court decreed the suit of the petitioner for recovery of dowry articles as per list of dowry articles (Mark-A) except items No. 1, 28, 29, 30 and 31 or alternate price of Rs. 90,000/-. Being aggrieved both sides filed appeals which were dismissed by learned lower appellate Court and the judgment and decree of learned family Court was upheld.

3. It is astonishing that the learned lower appellate Court held that PW-1 has given the details of dowry articles in her cross-examination and fully supported her claim but even then, the claim of the petitioner was not decreed according to her prayer, particularly gold ornaments were not decreed simply on the presumption that gold ornaments are usually kept by the ladies with them. In my view, since there was a categorically assertion that the petitioner was ousted from the house of the respondent in three wearing apparels, then it was incumbent upon the respondent to prove through some cogent evidence that she was not ousted from her house as narrated by her. Therefore, in my opinion, both the learned Courts below have failed to take into consideration the evidence of the parties in its true perspective.

4. Accordingly, this writ petition is partially allowedand the judgments and decrees passed by learned Courts below are modified to the extent that in addition to the dowry articles granted by the learned Courts below or in alternate price of Rs. 90,000/- (keeping in view wear and tear with the passage of time), the petitioner is also entitled to receive gold ornaments weighing 5½ tolas (as mentioned in the list Mark 'A' excluding the 1/2 tola gents ring) or its equivalent market price at the time of execution of the decree.

(R.A.) Petition allowed

PLJ 2015 Lahore 138 [Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

MAHAK BIBI (RUKHSANA IQBAL)--Petitioner

versus

ADDL. SESSIONS JUDGE, MULTAN and 3 others--Respondents

W.P. No. 6355 of 2014, decided on 14.5.2014.

Constitutional of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 491 & 561-A--Constitutional petition--Removal of minors from territorial jurisdiction--Attachment with mother--Validity--Unambiguously miners cannot be left at mercy of father, who is now at verge to start new matrimonial life with his second wife, as minor girls are in a very tender age which entails warmth of mother's love who is naturally and legally entitled for their custody--After final disposition of such petition, minors and their mother, who was otherwise a free person may be put to a physical restrain for an indefinite period--Through a petition under Section 491, Cr.P.C. Court can only regulate interim custody of minors and not beyond it. [Pp. 139 & 140] A, C & D

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

----S. 491--Scope of--Essence and purpose for habeas corpus--Securing freedom and not curtailing liberty--Validity--If person is a minor, Court may make over his custody to guardian who will be dealing with him in accordance with law but cannot put an embargo.

[P. 140] B

Malik Sajjad Haider, Advocate for Petitioner.

Date of hearing: 14.5.2014.

Order

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C., petitioner has assailed the order dated 03.05.2014, to the extent of removal of the minors from the territorial jurisdiction of Tehsil Multan, passed by the learned Additional Sessions Judge, Multan.

1. The back ground of this case is that, parties i.e petitioner and Respondent No. 4, being husband and wife parted their ways on account of 2nd marriage solemnized by Respondent No. 4 with Meh Jabeen, due to the said reason matrimonial life of the petitioner was disturbed. That on 02.05.2014, Respondent No. 4, after snatching the minor girls kicked out the petitioner from his house. Being deprived of her minor girls, the petitioner preferred a petition under Section 491 Cr.P.C. before the learned Sessions Judge, Multan. Thereafter, vide order dated 03.05.2014, passed by the learned Additional Sessions Judge, Multan, the minor girls were handed over to the petitioner with the direction that the petitioner shall not remove them from the territorial jurisdiction of Tehsil Multan. Hence, this petition.

2. Heard. Record perused.

3. Unambiguously the miners namely Eshal, aged 2 years and Waniya, aged 8 months cannot be left at the mercy of father/ Respondent No. 4, who is now at the verge to start new matrimonial life with his second wife, as both the minor girls are in a very tender age which entails the warmth of mother's love who is naturally and legally entitled for their custody. `Even today, the minors have shown their unfathomable response towards their mother, one can't consider proper that the girls should suffer, in their attachment or emotions towards their mother.

4. There is no denial to the fact that scope of Section 491 Cr.P.C. is not that vide, which has been exercised by learned Additional Sessions Judge, Multan in impugned order dated 03.05.2014. The very essence and purpose of the petition for Habeas Corpus under Section 491, Cr.P.C., is securing freedom and not curtailing liberty. If the person is a minor, the Court may make over his custody to the guardian who will be dealing with him in accordance with law but can not put an embargo. Such a course will lead to curtain the liberty for which there is no warrant under Section 491, Cr.P.C. which is hereby reproduced as under:--

5. Power to issue direction of the nature of a Habeas Corpus.--(1) Any High Court may, whenever it thinks fit, direct:

(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law:

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively. Pending before such Court-martial or Commissioners respectively.

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.

It is unthinkable that after final disposition of such petition, minors and their mother, who was otherwise a free person may be put to a physical restrain for an indefinite period.

1. It appears that the learned Additional Sessions Judge had transcended the legal requirements by restraining the movement of the petitioner and minors within the territorial jurisdiction of Tehsil Multan. It amounts to interfere in sphere allotted to the Guardian Court. It's learned Guardian Court to decide the matter of final custody. Through a petition under Section 491, Cr.P.C. the Court can only regulate interim custody of minors and not beyond it.

2. Hence, in view of the above, the instant petition is accepted and the order dated 03.05.2014, passed by learned Additional Sessions Judge, Multan, is hereby set aside to the extent of removal of minors from territorial jurisdiction of Tehsil Multan.

(R.A.) Petition accepted

PLJ 2015 Lahore 140 [Multan Bench Multan]

Present: ShamsMehmood Mirza, J.

MUHAMMAD ABAID ULLAH--Petitioner

versus

ATEEQ-UR-REHMAN and 8 others--Respondents

C.R. No. 288 of 2010, decided on 5.6.2014.

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

----O. XXXVII, R. 2--Negotiable Instruments Act, (XXVI of 1881), S. 29-A--Suit for recovery on basis of cheque--Question of--Suit for recovery on basis of cheque can be filed against legal heirs of preson who had issued cheque--Party who is not a drawer or maker of a cheque/bill of exchange is not liable thereon and accordingly cannot be sued under Order XXXVII Rule 2, CPC--Under Section 29-A of Negotiable Instruments Act 1881, in order for a legal representative of a deceased person to become liable under cheque issued by his predecessor, it is necessary that he signs the cheque for assuming liability--Respondents, therefore, were not liable to petitioner under said cheque issued by their predecessor. [P. 143] A

Ch.Shakeel Ahmad Sindhu, Advocate for Petitioner.

Date of hearing: 5.6.2014.

Judgment

This civil revision is directed against order dated 22.02.2010 passed by learned Additional District Judge, Tehsil Jatoi District Muzafargarh whereby judgment and decree dated 23.11.2006 passed against Respondents No. 1 to 8 was set .side.

1. Brief facts of the case are that the petitioner filed a suit under Order XXXVII Rule 2, CPC for recovery of Rs. 400,000/- on the basis of Cheque No. 19433759 issued by Abdul Maalik who died before the cheque could be encashed. The cheque in question was submitted by the petitioner on 01.02.2006 and it was dishonoured.

2. In consequence of dishonour of the above mentioned cheque, the petitioner instituted a suit for recovery under Order XXXVII, CPC before the learned Additional District Judge by arraying Respondents No. 1 to 8 as parties therein. The respondents, it is alleged, appeared before the learned Additional District Judge and filed their application to leave to defend the suit. However, the said respondents did not turn up on the subsequent dates of hearing with the result that they were proceeded against ex parte. After recording the ex parte evidence of the petitioner the learned Additional District Judge was pleased to pass the exparte judgment and decreed on 23.11.2006.

3. On 17.09.2006, an application under Order 12 (2), CPC was filed by Respondent No. 9 wherein it was alleged that Respondents No. 2 to 6 were minors and, therefore, learned Additional District Judge ought to have appointed their guardian ad litem in terms of Order XXXII Rule 3 of CPC. After hearing the arguments, the learned trial Court vide order dated 22.2.2010 set aside judgment and decree dated 23.11.2006 as well as dismissed the application filed under Order 12 (2), CPC on the ground that it was not filed by the proper guardian of the minors.

4. The respondents in this petition have already been proceeded against ex parte vide order dated 07.04.2014 as they did not enter appearance despite service upon them through publication in daily "Nawa-e-Waqat".

5. Learned counsel for the petitioner argues that Respondent No. 1, brother of the minors, was a major and therefore it made no difference if the provisions of Order XXXII Rule 3, CPC were not complied with, in this regard he also places reliance on judgment report as Muhammad Ashraf and another VS Nadeem Shahid and another 1998 SCMR 804 and Tanveer Mehboob and another VS Haroon and others 2003 SCMR 480. It is further contended that the learned Appellate Court could not have set aside judgment and decree, dated 23.11.2006 when it had also dismissed the application filed under Section 12 (2) of CPC.

6. The crucial question to be decided is whether under Order XXXVII Rule 2, CPC, a suit for recovery on the basis of cheque can be filed against the legal heirs of the person who had issued the said cheque. The provisions of Order XXXVII Rule 2 make it clear that they are specific to the bills of exchange, hundies or promissory notes and that suits there under can only be filed against the executants of the aforementioned instruments and not otherwise.

7. It would also be seen that maker of the cheque, Abdul Maalik (deceased) had died before the cheque could be presented for encashment. The said cheque, thus, ceased to have any effect as a bill of exchange on the death of its maker. Therefore, the suit under Order XXXVII Rule 2, CPC filed by the petitioner was misconceived and was not maintainable.

8. In this regard, the provisions of Sections 29 and 29-A of the Negotiable Instruments Act, 1881, which have direct relevance to the issue, are reproduced as under:

"29 A legal representative of a deceased person who signs his name to a promissory note, bill of exchange ort cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such."

"29-A. No person is liable as maker, drawer, indorser or acceptor of a promissory note, bill of exchange or cheque who has not signed it as such:

Provided that where a person signs any such instrument in a trade or assumed name he is liable there on as if he had signed it in his own name."

1. The aforementioned provisions make it clear that a party who is not a drawer or maker of a cheque/bill of exchange is not liable thereon and accordingly cannot be sued under Order XXXVII Rule 2, CPC. Under Section 29-A of the Negotiable Instruments Act 1881, in order for a legal representative of a deceased person to become liable under the cheque issued by his predecessor, it is necessary that he signs the said cheque for assuming the liability thereunder. However, this is not the case here as respondents did no such thing. The respondents, therefore, were not liable to the petitioner under the said cheque issued by their predecessor.

2. In this view of the matter, there is no need to interfere in the findings rendered by learned Appellate Court as the suit under Order XXXVII Rule 2, CPC filed by the petitioner against the legal heirs of Abdul Maalik (deceased) was not maintainable. Accordingly, this revision petition is dismissed. Learned Additional District Judge is ordered to return the plaint in suit titled "Muhammad Abaid Ullah VS Muhammad Ateeq-ur-Rehman etc." to the petitioner under Order VII Rule 10 of CPC. The petitioner is directed to appear before the learned Additional District Judge on 16.07.2014. Office is directed to transmit a copy of the judgment to the learned Additional District Judge, Tehsil Jatoi District Muzafargarh.

(R.A.) Petition dismissed

PLJ 2015 Lahore 143 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

ALLAH BAKHSH (deceased) through his Legal Heirs--Petitioners/Plainttiffs

versus

KHUDA BAKHSH (deceased) through L.R.s. etc.--Respondents/Defendants

C.R. No. 222-D of 2014, decided on 16.4.2014.

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

----S. 115 & O. XVII, R. 3--Civil revision--Suit for declaration--Right to produce evidence was closed--Mutation could not find way into jamabandies due to oversight and negligence of revenue authorities--Evidence in rebuttal was not produced--Validity--It is axiomatic and trite law that he who alleges must prove his case and that no party can be allowed to take benefit from weakness of case of other party--Plaintiffs were to stand on their own legs and onus lay on them to prove that they had purchased suit property through sale mutation--Being beneficiaries had to adduce cogent, credible, strong and convincing evidence thatentered into transaction of sale with them and that she had received alleged sale consideration of specific amount from plaintiffs--Without proving sale consideration as well as transaction of sale purportedly culminating in mutation Courts below rightly came to conclusion that petitioners were to be shown door and that their suit was liable to be dismissed.

[P. 147] A, B & C

Syed Qaisar Abbas Gilani, Advocate for Petitioners.

Date of hearing: 16.4.2014.

Order

The petitioners have filed this petition to assail the validity of the judgments and decrees dated 30.07.2010 and 03.01.2014 passed by the learned Civil Judge, Lodhran and District Judge. Lodhran, respectively, whereby suit for declaration instituted by Allah Bukhsh deceased, Nazar Muhammad and Nazeer Mai wife of Khadim Hussain was dismissed and an appeal preferred thereagainst was dismissed by the learned appellate Court as well.

1. Succinctly put, the facts that late Allah Bukhsh, Nazar Muhammad and Nazeer Mai instituted a suit for declaration, contending therein that land measuring 16 kanals bearing Khewats Nos. 60, 61, situated at village Dhoray wala, Tehsil & District Lodhran was owned by Mst. Ghulam Sakina wife of Siraj Ahmad, which was purchased by the plaintiffs from her for a consideration of Rs. 3,00,000/- by means of an oral sale, which reflected in the sale Mutation No. 857 dated 30.07.1992. It was further averred in the plaint that ever since the purchase made by the plaintiffs, they have been in the uninterrupted possession of the suit land, who also spent an amount of Rs. 50,000/- in making improvements. On the basis of these averments, it was prayed that the order dated 10.02.1993 passed by the Revenue Officer to the contrary be declared illegal, unlawful, without lawful authority and of no legal effect and as such ineffective upon the rights of the plaintiffs.

2. The defendants entered appearance and filed written statement, denying and controverting all the pleas of the plaintiffs both on the factual and legal plane. It was specifically maintained by the defendants that Mutation No. 398 dated 27.12.1981 could not find way into the jamanbandies due to oversight and negligence of the Revenue Authorities, obliging them to have an order dated 10.02.1993 passed in their favour by the Revenue Officer to incorporate the aforesaid mutation in the revenue record. As for the claim put forward by the plaintiffs that they had purchased the suit land from Mst. Ghulam Sakina, the same was regarded by them as baseless, groundless and unfounded.

3. The pleadings of the parties crystallized into the following issues:--

4. Whether entries relating to suit property dated 10.02.1993 are product of connivance by defendant with revenue authorities? OPP.

5. Whether plaintiffs are owners and in possession of the suit property? OPD.

6. Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD.

7. Whether the suit is not maintainable in its present form? OPD.

8. Relief.

9. In order to prove their case, one of the plaintiffs, Allah Bukhsh appeared as PW-1 and reiterated the contents of the plaint. The plaintiff's also examined Raheem Bukhsh as PW-2, who corroborated the contents of the petition. It seems that the cross-examination of the said witnesses could not be conducted for one reason or another. Meanwhile, Allah Bukhsh, one of the plaintiffs passed away, with the result that Muhammad Nawaz, his son was examined as PW-1. Similarly, it is by no means clear as to what happened to Raheem Bukhsh who was initially examined as PW-2. In the wake of the death of Allah Bukhsh, the plaintiffs examined Muhammad Rafique as PW-2. To put it differently, another set of witnesses was examined by the plaintiffs, with the result that the testimonies of Allah Bukhsh and Raheem Bukhsh were put on the back burner. In documentary evidence, the plaintiffs produced copy of Mutation No. 857 as Exh. P-1, copy of Register Haqdaran Zameen as Exh. P-2 copy of Fard Badr/Correction Slip as Exh. P-3, another copy of Register Haqdaran-e-Zameen as Exh. P-4, copy of Register Girdawari as Exh. P-5, copy of Mutation No. 851 as Exh. P-6, an extract from Register Haqdaran-e-Zameen relating to Khewat No. 59 as Exh. P-7, copy of Register Haqdaran-e-Zameen pertaining to Khewat No. 61 as Exh. P-8, copy of Register Haqdaran-e-Zameen in relation to Khewat No. 60 as Exh. P-9, copy of Register Haqdaran-e-Zemeen regarding Khewats Nos. 90, 92, 93 as Exh. P-10, copy of Register Haqdaran-e-Zameen regarding Khewat No. 61 as Exh. P-11, copy of Register Haqdaran-e-Zameen with regard to Khewat No. 60 as Exh. P-12, copy of Register Haqdaran-e-Zameen with regard to Khewat No. 61 as Exh. P-13 and copy of Register Girdawari as Exh. P-14.

10. It goes without saying that in the wake of the recording of the evidence for the plaintiffs, the defendants were called upon to produce evidence in rebuttal. They were provided sufficient opportunities to adduce evidence, but they did not avail of those. Ultimately, their right to produce evidence was closed on 11.04.2007. Although no reference was made to the relevant provisions of law under which the evidence of the defendants was closed, the tenor of the order shows that it was passed under Order XVII, Rule 3, CPC.

11. As it is, the learned trial Court seized with the suit found Issues Nos. 1 & 2, which were the crucial issues, against the plaintiffs, thereby dismissing their suit vide judgment and decree dated 30.07.2010. It bears repeating that Issues Nos. 1 & 2 were the critical issues, and the case of the plaintiffs revolved around those issues. Be that as it may, it was held by the learned trial Court that the plaintiff have failed to prove that they were owners in possession of the suit land by virtue of a sale mutation alleged to have been attested in their favour. Furthermore, it was held by it that the plaintiffs have-failed to show that the order dated 10.02.1993 passed by the Revenue Officer in favour of the defendants was the outcome of any collusion by them with the revenue authorities.

12. Feeling aggrieved by the aforesaid judgment and decree dated 30.07.2010, the petitioners herein filed an appeal. It is another matter that the same was dismissed by learned District Judge Lodhranvide judgment and decree dated 03.01.2014. Hence, this revision petition.

13. In support of this petition, learned counsel for the petitioner contends that both the judgments and decrees are the outcome of misreading and non-reading of the material evidence produced by the petitioners; that the learned Courts below did not apply their judicial minds and that it was altogether ignored by them that the defendants were proceeded ex parte, who had failed to rebut the evidence produced by the plaintiffs. In other words, in the absence of any evidence in rebuttal, the suit of the plaintiffs/petitioners deserved to be decreed as prayed for.

14. I have heard the learned counsel for the petitioner at length and perused the record appended to the revision petition.

15. There is no denying the fact that the defendants did not adduce any evidence in rebuttal. As stated above, their right to produce evidence was closed on 11.07.2004. But it is axiomatic and trite law that he who alleges must prove his case and that no party can be allowed to take benefit from the weakness of the case of the other party. In other words, the plaintiffs were to stand on their own legs and the onus lay on them to prove that they had purchased the suit property from Mst. Ghulam Sakina through sale Mutation No. 8531 dated 30.07.1992. Even otherwise, they being the beneficiaries had to adduce cogent, credible, strong and convincing evidence that Mst. Ghulam Sakina entered into the transaction of sale with them and that she had received the alleged sale consideration of Rs. 3,00,000/- from the plaintiffs. Further, they were required to prove that at the time of making the alleged transaction, independent advice was available to her. In the instant case, the evidence led by the plaintiffs falls far short of the aforesaid standard of evidence. The plaintiffs also failed to prove that Mutation No. 398 attested on 27.12.1981 was either attested in contravention of law or why the same could not have been allowed to be incorporated in the revenue record by the Revenue Officer, as he did vide order dated 10.07.1993. Resultantly, without proving the sale consideration as well as the transaction of sale purportedly culminating in Mutation No. 857 dated 30.07.1992, the Courts below rightly came to the conclusion that the petitioners were to be shown the door and that their suit was liable to be dismissed. The concurrent findings recorded by the learned Courts below have not been shown to be suffering from any infirmity or perversity. Nor have the petitioners been able to show that both the Courts disregarded or did not take into account any principles governing the appraisal of evidence. The findings recorded by them being sound are not liable to be interfered with by this Court in the exercise of its revisional jurisdiction under Section 115, CPC, especially when the learned Courts below did not overstep their authority nor have they committed any material irregularity either in the trial of the suit or the hearing of the appeal.

16. For what has been stated above, there being no merit in the revision petition, the same is hereby dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2015 Lahore 148 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD IRFAN--Petitioner

versus

JUDGE FAMILY COURT, TAUNSA SHARIF, DISTRICT DERA GHAZI KHAN and another--Respondents

W.P. No. 13718 of 2013, decided on 12.5.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 11(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Right of cross-examination of witnesses--Suit for jactitation of marriage--Witness could not be cross examined on account of preoccupation of counsel--Lawyers were observing strike--No mala fide could be ascribed to petitioner for adjournment--Validity--Conduct of defendant shows that he was not interested in making cross-examination--High Court cannot approve of following observation made in impugned order--Right of cross-examination has been provided for in Section 11(3) of Family Courts Act, 1964--It is most valuable right and if this right is be taken away, there must be compelling and sound reasons to exercise discretion against a party--It cannot be said that conduct of petitioner was such that Court was not to show his indulgence by allowing him further time to cross-examine witnesses produced by plaintiff, particularly when counsel for defendant/petitioner was in attendance when impugned order was passed--If witnesses produced by plaintiff are in attendance no further opportunity shall be provided to petitioner to carry out cross-examination.

[Pp. 150 & 151] A, B, C, D & E

Sardar Hameed Ullah Sikhani, Advocate for Petitioner.

Malik Khuda Bakhsh Door, Advocate for Respondent No. 2.

Date of hearing: 12.5.2014.

Order

Through this writ petition, the petitioner assailed the validity of the order dated 24.07.2013 passed by the learned Judge Family Court. Taunsa Sharif, District Dera Ghazi Khan, whereby his right of cross-examination of the witnesses produced by Mst. Shaheen Bibi, Respondent No. 2/plaintifi was closed.

1. The facts, in brief, are that Mst. Shaheen Bibi, Respondent No. 2 instituted a suit for jactitation of marriage against the petitioner. In the alternative, she asked for the dissolution of marriage on the ground of 'khula’.

2. The petitioner put in an appearance and filed written statement, denying all the averments made in the plaint filed by Mst. Shaheen Bibi, the aforementioned.

3. After framing the necessary issues, the Plaintiff/Respondent No. 2 was called upon to produce evidence in support of her assertions made in the plaint. As a result, she herself appeared as PW-1 and produced Ghulam Muhammad as PW2.

4. The examination-in-chief of PW-1 and PW-2 was recorded on 11.07.2013. However, these witnesses could not be cross-examined on account of preoccupation of the learned counsel for the petitioner/defendant. Therefore, the hearing was adjourned until 17.07.2013. On 17.07.2013 the Lawyers were observing strike. Consequently, the cross-examination of the witnesses of the plaintiff could not be carried out, and the proceedings were adjourned to 22.07.2013. Again, on 22.07.2013, the Lawyers were not appearing before the Courts because of their observing the strike. Eventually, the hearing was put off till 24.07.2013. On 24.07.2013, the learned Judge Family Court seized with the suit did not allow the learned counsel for the petitioner/defendant to cross-examine the witnesses.

5. In support of this petition, learned counsel for the petitioner contends that on the face of it, the impugned order is not sustainable in the eyes of law. It was passed in haste. He argues that on 24.07.2013, when the impugned order was made, he was in attendance, and his presence has been duly marked by the learned Judge Family Court, Tausna Sharif. He intended to cross-examine the witnesses, but he was not allowed to perform his duty. He makes the submission that probably the Court concerned was in a hurry to pass the final judgment and decree.

6. Malik Khuda Bakhsh Door Advocate, learned counsel for Respondent No. 2 has refuted, rebutted and controverted the arguments made by the learned counsel for the petitioner. He has laid a greate deal of emphasis on the fact that a number of opportunities were provided to the petitioner to cross-examine the witnesses produced by the plaintiff. When the petitioner did not avail of those opportunities, the learned Judge Family Court, Taunsa Sharif had no option but to close his right to cross-examine the witnesses produced by the plaintiff. He concludes by making the submission that the petitioner has only himself to blame.

7. I have heard the learned counsel for the parties and perused the record with their assistance.

8. From the narration of the facts stated hereinabove, it is abundantly clear that on two occasions i.e. 17.07.2013 and 22.07.2013, the Bar was observing strike, which stood in the way of the learned counsel for the petitioner to carry out cross- examine of the witnesses produced by the plaintiff. In point of fact, the petitioner sought only one adjournment on 11.07.2013, when the testimonies of two witnesses, including the plaintiff were recorded. And the reason for adjournment was the preoccupation of the learned counsel for the petitioner, who was stated to be busy before other Courts. To put it differently, no mala fide could be ascribed to the petitioner for the adjournment sought on his behalf on 11.07.2013.

9. It defies comprehension why the learned counsel for the defendant was not allowed to cross-examine the witnesses produced by the plaintiff on 24.07.2013. The contention of learned counsel for the petitioner that he had made an impassioned plea to allow him to conduct cross-examination of the witnesses in attendance, has not been rebutted. It has also not been recorded in the impugned order dated 24.07.2014 that despite his presence, the learned counsel for the petitioner had deliberately avoided or refused to carry out cross-examination of the witnesses in attendance.

10. I have pored over each and every word used by the learned Judge Family Court in the impugned order. I am unable to appreciate the observation made in the impugned order that the conduct of the defendant shows that he was not interested in making the cross-examination of PWs. Furthermore, this Court cannot approve of the following observation made in the impugned order:

'Therefore, this Court inclined to close the right of the defendant'

Without indulging into niceties, suffice it to say that the inclination of the Court concerned was not to be the determining factor in passing the impugned order. The right of cross-examination has been provided for in sub-section (3) of Section 11 of W.P. Family Courts Act, 1964. It is most valuable right and if this right is be taken away, there must be compelling and sound reasons to exercise discretion against a party. In the facts and circumstances of the case. It cannot be said that the conduct of the petitioner was such that the Court was not to show his indulgence by allowing him further time to cross-examine the witnesses produced by the plaintiff, particularly when learned counsel for the defendant/petitioner was in attendance on 24.07.2013, when the impugned order was passed.

1. The upshot of the discussion made above is that the impugned order dated 24.07.2013 passed by learned Judge Family Court, Taunsa Sharif is unsustainable, and the same is hereby struck down.

2. In order to expedite the proceedings, the parties are directed to appear before the learned Judge Family Court, Taunsa Sharif on 27.05.2014. It is made absolutely clear that if the witnesses produced by the plaintiff are in attendance on the aforesaid date, no further opportunity shall be provided to the petitioner to carry out cross-examination. But in case they are not in attendance on the said date or the Court is not functioning on that date on account of the casual leave of the Presiding Officer, one further opportunity shall be granted to the petitioner for the aforesaid purpose.

3. This writ petition is allowed in the foregoing terms.

(R.A.) Petition allowed

PLJ 2015 Lahore 151[Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

MUHAMMAD RAFIQUE and 3 others--Petitioners

versus

MUKHTAR AHMAD and 3 others--Respondents

C.R. No. 185 of 2006, heard on 12.6.2014.

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13(3)--Notice of service--Talabs--Performance of statutory talbs--Notice for talb-e-ishhad attested by witnesses was sent through registered post acknowledgement due but at time of institution of suit, notice attached did not bear signatures and thumb impression of attesting witnesses--All ingredients to prove talb-e-ishhad are missing which is mandatory to establish right of possession through pre-emption. [Pp. 154 & 156] A & C

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13(3)--Talab--Failed to prove performance of statutory talbs--Witness did not know contents of notice--Validity--Where witness is ignorant about contents of notice and admitted that he did not know what was written in notice then mandatory requirement of Section 13(3) of Punjab Pre-emption Act, 1991 is not complied with and its non-observance would be fatal to enforce a claim of pre-emption--Since pre-emption is a feeble right, formality required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record--Where a witness to a notice admits that he only signed a blank document and was not aware of contents of notice nor contents of notice were read over to him then he cannot be termed as an attesting witness as provided in S. 13(3) of Punjab Pre-emption Act, 1991. [Pp. 154 & 156] B

Ch. AbdulGhani, Advocate for Petitioners.

Mr.Ghulam Murtaza Malik and Mr. Muhammad Tahir Hameed, Advocates for Respondent No. 1.

Date of hearing: 12.6.2014.

Judgment

Through this civil revision, the petitioners have challenged the judgment and decree, dated 13.06.2005 passed by learned Civil Judge, Class-II, Vehari and judgment and decree, dated 02.02.2006 passed by learned Additional District Judge, Vehari.

1. The facts of the case are that the predecessor-in- interest of the present petitioners namely Rana Abdul Majeed (deceased) filed a suit for possession through pre-emption in respect of the property measuring 7 Kanal pertaining to Khewat No. 45, Khatooni No. 190, situated at Chak No. 72/WB, Tehsil Vehari purchased by Respondent No. 1 namely Mukhtar Ahmad through Sale Mutation No. 418 attested on 12.09.1998. The Respondent No. 1 filed a contesting written statement and upon divergent pleadings of the parties, the following issues were framed:--

2. Whether the plaintiff has got superior right over the suit property? OPP

3. Whether the actual price Rs. 120,000/- and ostensible price has been fixed Rs. 198,000/-? OPP

4. Whether the plaintiff has got no cause of action? OPD

5. Whether the plaint is liable to be rejected under Order VII Rule 11? OPD

6. Relief.

7. Initially the suit filed by the predecessor in interest of the petitioners was dismissed on 26.10.2001. However, in appeal, the judgment and decree dated 26.10.2001 was set aside by learned Additional District Judge, Vehari on 24.04.2002 and the case was remanded back to the trial Court with the observation that issues had not been properly framed and the direction was given to the learned trial Court for framing fresh issue about fulfillment of "Talbs" as required under Section 13 'of the Punjab Pre-emption Act, 1991 and to take fresh evidence on this issue.

8. In pursuance to the judgment and decree, dated 24.04.2002 passed by learned Additional District Judge, Vehari an additional Issue No. 4-A was framed by the learned trial Court as under:--

4-A. Whether the plaintiff has fulfilled requirements of Talabs in accordance with law? OPP

1. The learned trial Court after giving its elaborate findings on all the issues, especially, Issue No. 4-A dismissed the suit through judgment and decree, dated 13.06.2005.

2. Aggrieved by the judgment and decree, dated 13.06.2005 passed by learned Civil Judge, Class-II, Vehari an appeal was filed, which also met with the same fate by learned Additional District Judge, Vehari through judgment and decree, dated 02.02.2006. Hence, this civil revision.

3. The learned counsel for the petitioners argued that the impugned judgments and decrees passed by both the Courts below are result of non-reading and mis-reading of evidence. It has been further argued that the suit was dismissed only on account of minor discrepancy in the evidence of the petitioners on the question of "Talbs". It has been further argued that under Article 77 of the Qanun-e-Shahadat Order, 1984, a copy of notice of Talb-i-Ishhad can be produced and the both the Courts below have wrongly dis-regarded the Ex. P/1.

4. Conversely, the learned counsels appearing for the respondents have vehemently supported the judgments and decrees passed by both the Courts below. It has been argued by learned counsels for the respondents that the predecessor-in-interest of the petitioners had miserably failed to prove the performance of statutory Talbs which is established from the evidence available on the file.

5. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record.

6. I would only confine myself to the question as the Talbs have been performed in accordance with the mandatory provision of Section 13 of the Punjab Pre-emption Act, 1991.

7. Muhammad Rafique/Petitioner No. 1 appeared as PW-3 and deposed that on 19.12.1998 one Saif Ullah informed his father in presence of Muhammad Riaz about the impugned transaction and his father declared his intention to pre-empt the same. During the cross-examination he admitted it as correct that after the information given by Saif Ullah, the predecessor-in-interest (Abdul Majeed) after consultation announced that the disputed sale would be pre-empted. Meaning thereby, that no jumping demand was made which is a sine qua non of "Talb-i-Muwathibat".

8. As far the performance of Talb-i-Ishhad is concerned, the case of the petitioners was that on 26.12.1998 notice for Talb-e-Ishhad attested by the witnesses was sent through registered post acknowledgement due but at the time of institution of the suit, the notice attached did not bear the signatures and thumb impression of the attesting witnesses namely Saif Ullah and Muhammad Riaz. An application was filed under Order 11 Rule 14 of CPC to seek a direction to the of the Respondent No. 1 to produce the original notice but the said application was dismissed by the learned trial Court through order dated 28.09.2001.

9. At this stage, it would be expedient to reproduce sub-section (3) of Section 13 of the Punjab Pre-emption Act, 1991, which is as under:--

Section 13.

"Demand of pre-emption."--(1)----------------------(2)-----------------------------------------------------------------

(3) Where a pre-emptor has made Talb-e-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered over acknowledgement due, to the vendee, confirming his intention to exercise the fight of pre-emption:

Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.

……………………….”

1. It is noteworthy that Muhammad Riaz while appearing as PW-2 in cross-examination had deposed that he did not know what was written in the notice. Meaning thereby, that he was not aware of the contents of the notice. In my opinion where the witness is ignorant about the contents of the notice and admitted that he did not know what was written in the notice then the mandatory requirement of Section 13(3) of the Punjab Pre-emption Act, 1991 is not complied with and its non-observance would be fatal to enforce a claim of pre-emption. Since pre-emption is a feeble right, the formality required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record.. Where a witness to a notice admits that he only signed a blank document and is not aware of the contents of the notice nor the contents of notice were read over to him then in my opinion he cannot be termed as an attesting witness as provided in sub-section (3) of Section 13 of the Punjab Pre-emption Act, 1991.

2. As far the service of notice under Section 13 of the Act ibid is concerned, the Hon'ble Supreme Court of Pakistan in a judgment reported in 2007 SCMR 1105 (Muhammad Bashir and others versus Abbas Ali Shah) has held that requirement of sending a notice in writing is followed by a rider i.e. under registered cover acknowledgement due, which signifies that intention of law is not merely a formal notice on part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about the intention to pre-empt. If, merely sending of notice" was enough, it would make the expression acknowledgement due redundant. If acknowledgement card carries an endorsement of refusal or not accepted, a presumption of service would arise, unless rebutted.

3. In the present case, even the post man who was produced as PW-5 did not utter a single word that the notice had been served upon the Respondent No. 1. The Hon'ble Supreme Court of Pakistan in a judgment reported in 2013 SCMR 866 (Allah Ditta through L.Rs. and others versus Muhammad Anar) has held that onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor; therefore it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence; in present case, where the receipt of notice was denied by the Defendant/Respondent No. 1.

4. The Hon'ble Supreme Court of Pakistan in judgments reported as 2007 SCMR 1105 (Muhammad Bashir and others versus Abbas Ali Shah), 2011 SCMR 762 (Bashir Ahmed versus Ghulam Rasool) and PLD 2013 Supreme Court 193 (Abdul Khan versus Ramzano Bibi) has laid down parameters in case where a vendee denies performance of Talb-e-Ishhad, how is the pre-emptor required to prove the same, as under:--

(a) Notice of Talb-e-Ishhad;

(b) Its two truthful attesting witnesses;

(c) Postal receipts'

(d) Acknowledgement due;

(e) Postman who effected the service (both acceptance or refusal).

In the present case almost all the ingredients to prove Talb-e-Ishhad are missing which is mandatory to establish the right of possession through pre-emption.

1. It is an established proposition of law that findings of question of law and facts, howsoever erroneous, cannot be interfered with by High Court in exercise of its revisional jurisdiction under Section 115, CPC unless such findings suffer from jurisdictional defect, illegality or material irregularity.

2. For what has been discussed above, I am not inclined to disturb the concurrent findings recorded by the Courts below, since the learned counsel for the petitioners has failed to make out a case for interference by this Court. Resultantly, this civil revision is dismissed.

(R.A.) Revision dismissed

PLJ 2015 Lahore 156 (DB)[Multan Bench Multan]

Present: Shezada Mazhar and Shah Khawar, JJ.

M/s. MULTAN TEXTILE ALLIED INDUSTRIES (PVT.) LIMITED through its Managing Director and 5 others--Appellants

versus

HABIB BANK LTD through its Branch Manager and another--Respondents

F.A.O. No. 110 of 2013, decided on 29.5.2014.

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

----Ss. 19(3) & 22--Suit for recovery--Adjustment of existing liability--Cash deposit and cash transfer was totally incorrect--No case counter foils of internal entries--Internal transfer entries in statement of account--Validity--Whether payment of shown to have been made for adjustments of earlier facilities as per memorandum date were made by bank through internal transfer from F.A.F facility allegedly created by Bank or payments were made by appellants--It is responsibility of bank to prove not only disbursement but also utilization of finance facility by borrower--In order to prove its claim Bank was required to provide not only statement of account of F.A.F. facility but also all supporting documents like internal vouchers in order to prove its claim--In order to prove their claim have placed on record apart from other evidence which are deposit slips showing an amount as cash and balance amount as cash transfer--Appellants have also called record of Bank which was produced by CW who presented all record relating to appellants finance facilities which were exhibited in his examination--These deposit/pay in slips are actually internal vouchers showing transfer from FAF to different facilities of appellants--Claim of bank was negated by respondent who had candidly admitted that these were external documents used by customers of banks for payment at counters of banks--In presence of these deposit/pay in slips no other proof was required from appellants--It was responsibility of decree holder bank to prove their claim that these are internal vouchers and that adjustments were made from FAF facility created in view of compromises--Decree holder Bank has miserably failed in discharging its duty to prove internal transfer/adjustment by placing on record cogent and reliable evidence--Any statement made by appellants which is contrary to facts of case is of no consequence and cannot be relied upon for creating liability of appellants, specially when respondent/Bank has failed to establish on record creation as well as disbursement of F.A.F. facility--In absence of any internal vouchers for creation of FAF facility, adjustment of different facilities and absence of any entry in FAF statement of account creation as well as disbursement of FAF facility is not proved--Appeal was allowed.

[Pp. 162, 163, 165 & 166] A, B, C, D, E, F, G, H, I & J

Mr. MuhammadIrfan Wyne, Advocate for Appellant.

Mr. MuhammadSuleman Bhatti, Advocate for Respondents No. 2.

Messrs Muhammad Nazim Khan and Sohail Ahmad Janjua, Advocates for Respondent No. 1.

Date of hearing: 29.5.2014.

Judgment

Shezada Mazhar, J.--The present appeal has been filed against the order dated 07.05.2013 passed by the learned Banking Court No. 1, Multan whereby objection petition filed by the appellants was dismissed.

1. The facts necessary for disposal of the present F.A.O. are that respondents/Bank filed a suit for recovery of Rs. 56.68,890.45 against the appellants claiming that respondents allowed finance on 22.04.1990 to appellants for installation of a project. The said finance was payable up to 31.12.1998 and in addition to the project finance a sum of R.s.1.5 million was also allowed in the shape of L.M.M. facility. The appellants failed to repay the finance in terms of agreement. The said suit was decreed exparte, execution petition was filed and during its pendency, the parties entered into compromise vide Ex.C.1 and learned trial Court modified the exparte decree vide judgment and decree dated 16.11.1999. According to compromise Ex.C.1 the total liability of appellants was fixed as Rs. 7.290 million out of which the appellants have to pay Rs. 1.790 million as down payment and remaining liability amounting to Rs. 5.50 million was converted into F.A.F. facility agreed to be repaid in 10 half yearly installments up to 31.01.2004. According to respondents, appellants failed to pay the decretal amount in terms of decree. The appellants filed an application for issuance of clearance certificate as according to them they have adjusted the entire agreed liability. The respondents opposed the said application and learned trial Court vide order dated 30.06.2005 dismissed the said application and mortgaged property was ordered to be auctioned.

2. In the execution petition, the learned Judge Banking Court No. 1, Multan issued warrant of possession of the mortgaged property auctioned under Section 19(3) of F.I.O. 2001. The said order was assailed before this Court through F.A.O. No. 169/2010 which was accepted vide order dated 22.11.2010 in the following terms:

"In view of above the impugned order is set aside and the case is remanded to the learned trial Court for deciding appellant's application afresh after recording evidence if needed be. The appeal is allowed".

1. The learned Judge Banking Court-I Multan once again dismissed the appellants' objection petition without recording evidence vide order dated 08.08.2012. Against the said order, the appellants again approached this Court through F.A.O. No. 131/2012. The F.A.O. once again was allowed by this Court and the matter was once again remanded vide order dated 05.11.2012 in the following terms:--

"In view of the above, we allow this appeal and remand the case to the learned Banking Court who will record the evidence and will decide the appellant's objection petition afresh. As it is an old case and is lingering on for one reason or the other, the learned Banking Court will decide the same within one month on receipt of certified copy of order".

1. After remand of the case, the learned Judge Banking Court No. 1 vide order dated 20.02.2013 framed the following issues on the basis of divergent pleadings of the parties.

Issues:

1. Whether petitioners/judgment debtors have no cause of action and locus standi to file the petition? OPR

2. Whether the petition is not maintainable in its present form? OPR

3. Whether the petitioners/judgment debtors have not come to the Court with clean hands? OPR

4. Whether the petitioners/judgment debtors are stopped by their words and conduct to file petition? OPR

5. Whether total finance liabilities of petitioners/judgment debtors stood adjusted on 23.09.1999? OPP

6. Whether decree holder/bank created after settlement between the parties new internal entries finance i.e. FAF amounting to Rs. 5.500 Millions which was adjusted by the transfer entries for the adjustment of previous four loans liabilities to fulfill the settlement and thereafter compromise decree was passed on 16.11.1999?

7. Whether rescheduling or restructuring was in accordance with law? OPR

8. Whether decree holder/bank has charged markup over markup after rescheduling? OPP

9. Whether the decree holder/bank cannot debit the cash finance of petitioners/judgment debtors without their consent? OPP

10. Relief.

Both the parties led their oral as well as documentary evidence in support of their respective claims. The appellants/objectors produced Syed Zil-e-Hussain Jillani as AW1 and also called record of the respondent/decree holder Bank which was produced by Ghias Ahmad. Regional Assistant General Manager, Habib Bank Ltd. Regional Office, Multan whose statement was recorded as CW1. Respondent/Bank produced only documentary evidence in the shape of Exh.R.1 to Exh.R.6. Learned Judge Banking Court after hearing the arguments of the parties once again dismissed the objection petition of the appellants being devoid of any substance. Hence the present F.A.O.

1. Learned counsel for the appellants submits that the learned trial Court failed to consider that F.A.F. was created on 21.09.1999 while the decree was passed on 16.11.1999. Further submits that the F.A.F. was created for adjustment, of existing liability, therefore, after adjustment of existing liability, the bank should have filed fresh suit for recovery; that as per order dated 08.08.2012, the learned Court below observed that the counter foils which were in possession of the appellants clearly indicate that the appellants have paid Rs. 29,12,663.08 through cash; that the assertions raised in the evidence and pointed out have been totally ignored and the objection petition has been decided on the same source which was not accepted by this Court in F.A.O. Nos. 169/2010 and 131/2012; that the learned Court below has totally ignored the evidence produced by the Bank and only relied upon the statement recorded on 16.11.1999 and the FAO No. 253/2005 but did not discuss FAO Nos. 169/10 and 131/2012; that the learned Court below has committed the error while passing the impugned order; that the learned trial Court has not discussed the specimen of vouchers produced in evidence used for the purposes of internal entries and concept of the learned Court below regarding cash deposit and cash transfer is totally incorrect because in no case the counter foils of internal entries are issued to the parties; that the learned trial Court has not applied its judicious mind; that the onus to prove the issues was upon the respondent/bank which they have failed to discharge; that the impugned order dated 07.05.2013 is based on surmises and conjectures; that the Bank totally failed to establish the claim through any document; that the order dated 07.05.2013 is illegal, unjust, uncalled, ultra vires and based on mis-reading and non-reading of evidence and as such is liable to be set aside. Further adds that the Court below has not considered/discussed the vouchers produced in evidence by the appellants and were termed as internal vouchers used for internal entries. Submits that the respondent/Bank admitted that no other voucher/document is available with it except what have already been furnished; that the respondent/Bank failed to establish through cogent and reliable evidence the creation of FAF facility on 16.11.1999 as well as the alleged internal transfer entries in the statement of account; that order impugned is liable to be set aside.

2. On the other hand, learned counsel appearing on behalf of the respondent/Bank vehemently supported the impugned order passed by the learned Banking Court. Submits that the appellants have failed to discharge their onus to prove the payment of the decretal amount; that the appellants' claimed payment of the decretal amount for 21.09.1999 to 23.09.1999 but the statement regarding consent decree was made on 16.11.1999. Regarding deposit receipts placed on record as Exh.A.2 to Exh.A.10, learned counsel for the Bank specifically claimed that these are internal transfer vouchers, whereas the learned counsel appearing on behalf of the auction purchaser submitted that these are not internal vouchers/documents of the Bank. Learned counsel for the auction purchaser further stated that most of these deposit receipts are of "cash transfer" and therefore, it was the duty of the appellants to place on record the supporting documents in shape of either the authority letter or cheque of account from where these amounts were got transferred. Submits that no such document has been placed on record by the appellants. Learned counsel for the respondents also referred to the objection petition of the appellants to state that they have admitted the fact that these payments were made from other account but failed to prove the same by cogent and reliable evidence. Submits that the order passed by the learned Banking Court is in accordance with law and facts of the matter and does not require interference by this Court.

3. We have heard the learned counsels for the parties and have also gone through the record of the case with the able assistance of the counsels for the parties.

4. It is an admitted fact that appellants and the respondent/Bank entered into a compromise and according to the said compromise payment was to be made in terms of the said compromise. An initial payment of Rs. 1.790 million was to be paid in cash and the balance 5.5 million up to 30.03.2005 in terms of the memorandum dated 16.08.1999. The case of the appellants is that after the said memorandum they had made the payment of the total agreed amount through Exhs. A/2 to A/10 during the period 20.09.1999 to 23.09.1999, whereas the case of the respondent/Bank is that the internal adjustments were made by the respondent/Bank in the appellants' account by creating Finance Against Facility (F.A.F) facility as per the memorandum dated 16.08.1999. Further the case of the respondent/Bank is that had the appellant made the payments through Exhs. A/2 to A/10, then they should not have made the statement on 16.11.1999 and got the suit decreed.

5. It is also an admitted fact that earlier to the present order, appellants' objection petition was twice dismissed by the learned Banking Court and this Court twice remanded the case to the Banking Court for framing of issues and recording evidence of the parties to prove their respective claims.

6. Now the moot point in this case is whether the payment of Rs. 5.5 million shown to have been made for the adjustments of the earlier facilities as per the memorandum dated 16.08.1999 were made by the Bank through internal transfer from the F.A.F facility allegedly created by the Bank or the said payments were made by the appellants?

7. Before dealing with the case-in hand, it is necessary to explain the law on the issue. Under the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with different judgments of the High Courts and Hon'ble Supreme Court of Pakistan, it is the responsibility of the respondent/Bank to prove not only the disbursement but also utilization of the finance facility by the appellants/borrower. It was held in National Bank of Pakistan v. Messrs Trend Hosiery (Pvt) Ltd. and others 2012 CLD 1078 (Lahore), that the Bank is under duty to demonstrate by reference to documents, the sanction of finance and its disbursement.

8. Similarly in Ghulam Nazak v. Zarai Taraqiati Bank of Pakistan through Manager and another 2007 CLD 667 (Lahore) while dealing with the suit for declaration filed by the borrower, it was held that the onus to prove that the respondent Bank gave finance of Rs. 1,00,000 to the appellant has not been discharged by it. It is the case of the Bank that the record pertaining to the Loan No. 182855 has been lost. In the absence of any record of the loan in question, the plaintiff/appellant cannot be burdened with the same".

9. In another case reported as National Bank of Pakistan through Manager v. Messrs Mujahid Nawaz Cotton Ginners through Partners and 6 others 2007 CLD 678 (Lahore) while dealing with the debited entries made by the Bank in the account of borrower with regard to insurance premium, it was held that the ''bank did not file ,any supporting documents in order to show that such and such amount was paid by the Bank, to the insurance company as premium, on behalf of the respondents/mortgagors and that such and such amount was paid as salary. We are unable to find any document on record even to prima facie show that the amount was, in fact, paid to the insurance company/concerned persons. The appellant bank should have filed the vouchers, receipts or some other documents manifesting that the said amount was, in fact, paid to the insurance company. In the absence of any supporting documents, the Bank is not entitled to recover the said amount merely on the ground that the same finds mention in the statement of accounts, which is not authenticated by documents/receipts".

10. In another case reported as MCB Bank Limited v. Eastern Capital Ltd. and 7 others 2011 CLD 938 (Karachi), it was held that according to law, a plaintiff in a suit can only succeed when the case is proved through cogent and reliable evidence in its favor. Burden to prove is also on the plaintiff. Once the claim in the suit is established on the record, then comes the turn of defendant to rebut the same. When the plaintiff fails to discharge its burden, the only way, in normal course, before the Court is to dismiss the claim of the plaintiff."

11. From the above case law, it is clear that in order to prove its claim Bank was required to provide not only the statement of account of the F.A.F. facility but also all supporting documents like internal vouchers etc in order to prove its claim. Similarly the appellants were also required to prove payment of 5.5 millions.

12. Here in this case appellants in order to prove their claim have placed on record apart from other evidence Exh. A/2 to A/10 which are deposit slips showing an amount of Rs. 1.790 million as cash and the balance amount of Rs. 5.5 million as Cash Transfer. Further appellants have also called record of the Bank which was produced by CW-1 who presented all the record relating to the appellants finance facilities which were exhibited as C1 to C29/12. CW-1 Ghias Ahmad, Regional Assistant General Manager, Habib Bank Ltd. specifically stated in his examination in chief that:

"Besides these documents, the bank has no other document.

During cross-examination CW-1 also admitted that:--

"The vouchers of entry of 1997 and 1999 are not available due to old record. Then said there was no voucher of entry of 1997 as register was maintained at that time. All the entries were internal entries but the vouchers are not traceable. It is incorrect to suggest that internal entries were made without vouchers.

He further stated in his cross-examination that;

According to EX-C24 on 21.09.1999 amount of Rs. 11,32,048/- were shown as cash transfer and this cash was transferred from FAF through transfer voucher reflected in EX-C28. On Ex-C24 the amount of Rs. 11,32,048/- is mentioned but there is no word showing the transfer from FAF. It is correct that on 20.09.1999 through Ex-A13 it is mentioned that cash was paid through making the statement as "NIL" reflected in Ex-C27. It is correct that there is no mention, from where amount of Rs. 2,94,998.51 were transferred. It is correct that after adjustment of the entire liability on 22.09.1999 we again debited an amount of Rs. 2,12,950/- in lieu of markup. It is correct that on 23.09.1999 this amount was recovered from the customer making statement as "NIL". Ex-C24/2 starts from 1994 till 1998. This was obtained with the documents which is schedule of old FAF finance installments of Rs. 1.100 Million. I cannot produce original documents regarding entries mentioned in Ex-C24/2. Ex-C25 is showing the entry of new FAF dated 21.09.1999. It is the single entry over the page. There is no detail of transfer to other liabilities in Ex-C25. (emphasis added)

1. Apart from CW-1, Syed Zil-e-Hussain Jillani, Managing Director of the appellant company appeared as AW-1 to support his case. The said witness also supported the claim of the appellant company and during cross-examination specifically stated that:

"The bank promised to disburse FAF but it was not disbursed. The guarantee was not executed for FAF it pertains to previous loan. The bank agreed to disburse FAF which was not disbursed so the question of installments does not arise."

1. Appellants provided sufficient evidence in support of their claim that the payments were made by them through deposit slips and by the admission of the respondent/Bank employee CW1 that F.A.F. statement of account is a single entry statement which means no adjustments were made for the said account. Now the burden shifted to the respondent Bank to prove that the said payments were in-fact made through internal transfers.

2. In order to prove its case decree holder Bank only produced documentary evidence viz Exh. R/1 to R/6 which does not include any internal vouchers for the creation of the FAF facility or the transfer of different entries from the said FAF facility to different accounts of the appellants for the adjustment of the earlier facilities as per the compromise between the parties.

3. Learned Banking Judge while dealing with Issues No. 5 & 6, which relates to the adjustment of the liability as well as creation of new FAF, observed that:

“From the close scrutiny of the evidence of the present petitioner/judgment-debtor and CW-1, it is clear that new FAF of Rs. 5.500 A Million was created just only to adjust the defaulted amount which was, admittedly, Rs. 7.290 Millions and before recording the statement of the petitioner/judgment-debtor in the Court, he deposited Rs. 17,90,000/- in cash as down payment out of the defaulted amount and remaining amount of Rs. 5.500 Millions were outstanding against him for which the new FAF was created and the pervious loans were shown "NIL" but showing of "NIL" of the previous liabilities does not mean that the petitioner/judgment-debtor deposited the whole amount to the tune of Rs. 7.290 Millions in cash".

1. Learned Judge Banking Court was wrong to hold that the FAF was created to adjust the defaulted amount. In fact according to Exhs.A/2 to A/10 an amount of Rs. 1.790 million was paid in cash whereas the balance amount was paid through cash transfer. It was the claim of the respondent Bank that the said adjustments were made through FAF facility, however no proof of such transfer was placed on record. Learned Judge Banking Court, while holding the above, completely ignored the statement of CW-1 who has not only admitted that no internal vouchers are available creating the transfer entries in the FAF account but also admitted that Exh.C-25, statement of account of FAF facility, does not contain any entry showing transfer of the amounts from FAF to other facilities of the appellants. In presence of such admission on the part of decree holder Bank the order of the learned Banking Judge was against the facts/evidence available on the record.

2. Learned counsel appearing on behalf of the Bank as well as the auction purchaser have laid much emphasis that it was the judgment debtors who were required to prove the fact of adjustment of the amount and not the respondent Bank.

3. We are afraid that the view taken by the learned counsels for the respondents is not correct as the judgment debtors have placed on record Exhs.A/2 to A/10 which are admittedly deposit/pay in slips used by the customers of the Banks for the deposit of amount at the counter of a Bank. These deposit slips are produced by the appellants in original which itself is sufficient to prove that the payments were made by appellants over the counter. It was the respondent bank's counsels who have claimed that these deposit/pay in slips are actually internal vouchers showing transfer from the FAF to the different facilities of the appellants. However, the claim of the respondent/Bank was negated by the learned counsel for Respondent No. 2 who has candidly admitted that these are external documents used by the customers of the banks for the payment at the counters of the banks.

4. In presence of these deposit/pay in slips no other proof was required from the appellants. By placing Exhs. A/2 to A/10 external deposit/pay in slips, judgment debtors discharged there onus to prove the payment by cash as well as adjustment through transfer.

5. It was the responsibility of the decree holder Bank to prove their claim that these are internal vouchers and that the adjustments were made from FAF facility created in view of the compromises vide memorandum dated 16.08.1999. Decree holder Bank has miserably failed in discharging its duty to prove the internal transfer/adjustment by placing on record cogent and reliable evidence.

6. Any statement made by the appellants which is contrary to the facts of the case is of no consequence and cannot be relied upon for creating liability of the appellants, specially when respondent/Bank has failed to establish on record creation as well as disbursement of the F.A.F. facility.

7. In absence of any internal vouchers for the creation of FAF facility, adjustment of different facilities from the said FAF facility and absence of any entry in the FAF statement of account (Exh. C-25) the creation as well as disbursement of the FAF facility is not proved.

8. In view of the above discussion, the present appeal is allowed, the order dated 07.05.2013 is set aside and the objection petition is allowed with no order as to cost.

(R.A.) Appeal allowed

PLJ 2015 Lahore 166[Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

MUHAMMAD IQBAL--Petitioner

versus

ADDL. INSPECTOR GENERAL POLICE (INVESTIGATION) PUNJAB, LAHORE and 5 others--Respondents

W.P. No. 3684 of 2013, heard on 11.4.2014.

Constitution of Pakistan, 1973--

----Art. 199--Police Order, 2002--Art. 18(6)--General Clauses Act, (VI of 1897), S. 21--Change of investigation--Trial had commenced, charge framed and witnesses were being summoned to complete trial--Investigation was changed for second time without any justification and reviewing earlier order--Recommendation was referred back with direction to comply with observations--Validity--Investigation would not be changed as cases are subjudice before trial Court, is again of no consequences as said application was for compliance of order passed by police cannot be termed as a revision of earlier order or revisit by respondent--Rather recommendation of board was referred back by office with direction to comply with observations passed by Addl. I.G.P.--Authority which can pass an order is entitled to vary, amend, add to or rescind that order--No doubt that letter had ever created any right of either party--Petition was hereby dismissed. [Pp. 169, 170 & 171] A, B, C, D & E

Mr. MuhammadZafar Khan Puniyan, Advocate for Petitioner.

Date of hearing: 11.4.2014.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Muhammad Iqbal petitioner has filed this petition with the following prayer:

"In view of the above submissions it is humbly prayed that the petition may kindly be accepted and impugned order dated 09.03.2013 may kindly be set aside. Respondents No. 2 & 3 be directed to arrest the P Os and produced before the learned trial Court for the earlier conclusion of the trial.

It is also prayed that the present investigation carried out by Respondents No. 4 & 5 may kindly be ordered to be stayed till final decision of this petition.

Any other relief which this Court deem fit may also be granted to the petitioner.

1. The background leading to the filing of the instant writ petition is that on 20.04.2012 Mst. Rukhsana Bibi daughter of the petitioner was forcibly abducted by the accused persons on a gun point from the way of her house. The accused persons detained her at different places, where the accused Muhammad Fazal, Rab Nawaz and Junaid Iqbal committed zina bil jabr with her. On the application of victim, case FIR No. 174/2012, under Sections 496-A/376, PPC was registered at Police Station Sarai Sidhu Kabirwala District Khanewal whereas according to the petitioner, as a counterblast case FIR No. 175/12 under Sections 496-A/376, PPC was also registered at the same Police Station on the statement of Mst. Mariam sister of accused Muhammad Fazal (P.O) against the petitioner etc. Subsequently on 11.6.2012 Mst. Mariam Bibi complainant of case FIR No. 175/12 submitted an application before Respondent No. 1 for 1st change of investigation of both subject cases. On this, the District Police Officer, Khanewal was directed by Respondent No. 1 to process the subject cases under Article 18 (6) of Police Order, 2002 for 1st change of investigation. The District Standing Board, Khanewal recommended both the cases for 1st change of investigation and sent findings of the Board duly endorsed by RPO, Multan Region Multan vide RPOs Letters No. 42020/ADIG & 42021/ADIG dated 27.09.2012. Respondent No. 1 refused to charge the 1st time investigation and referred back the matter to District Police Officer Khanewal with certain directions and observations, vide Office Memo. No. 71455/Inv/HC dated 16.10.2012 and No. 74778/Inv/HC dated 31.10.2012. According to the petitioner, in compliance of orders of Respondent No. 1 the investigation in both the cases has been completed and challans/reports under Section 173, Cr.P.C. have been submitted before the Court of competent jurisdiction. The trial has commenced, charge has been framed and the witnesses are being summoned to complete the trial. The main accused of case FIR No. 174/2012 Muhammad Fazal was not arrested by the local police and was declared P.O. The other accused persons also did not appear before the trial Court. The petitioner appeared before Respondent No. 2 and requested him for the arrest of P.Os. but he without any justification recommended the cases for change of investigation for second time and Respondent No. 1 reviewing his earlier order changed the investigation in both cases and entrusted the investigation to R.I.B. Multan without obtaining any clarification about the observation/directions already issued for the first time, vide office order No. 13160/Inv/HC dated 19.02.2013.

2. On 22.1.2013 the petitioner appeared before Respondent No. 2 and requested him for the arrest of (P.Os), but the Respondent No. 2 informed that the case files of both the case have been referred to Respondent No. 1 for the change of investigation. In this regard, the petitioner submitted an application dated 25.1.2013 to Respondent No. 1 and requested him that investigation of these cases should not be changed, because the cases are subjudice before the learned trial Court. The petitioner also filed W.P. No. 1799 of 2013 before this Court wherein direction was issued to Respondent No. 1 to decide the application of the petitioner dated 25.1.2013 pending before him strictly in accordance with law within a period of one month positively,vide order dated 15.02.2013. In compliance of the said direction of this Court, Respondent No. 1 has passed the impugned order dated 9.3.2013. Hence, this writ petition.

3. I have heard the learned counsel for the petitioner and also gone through the documents attached with this petition.

4. The contention raised by the petitioner that Respondent No. 1 refused to change the 1st time investigation and issued directions to the Respondent No. 2 for compliance of the observations made by him, is devoid of force because the order was not of refusal by Respondent No. 1 rather the recommendation of Board was referred back with the direction to comply with the observations observed by Respondent No. 1. For better appreciation, Office Memo. No. 71455/ Inv/HC dated 16.10.2012 is reproduced as under:--

"On perusal of the recommendation of District Standing Board Khanewal, the Addl. IGP (Inv), Punjab has observed as under:-

(i) The local police has held all the accused guilty but arrested only one accused.

(ii) The statement of abductee under Section 164, Cr.P.C. has not been recorded.

(iii) The investigation is incomplete.

(iv) The local police to arrange the recording of statement of Rukhsand under Section 164, Cr.P.C. and to arrest the accused already held guilty.

(v) The case is five months old but the I.O. has not arrested the accused so far and they were also not declared P.Os.

1. In view of the above, the recommendation of Board referred back with the direction to comply with the above observations passed by Addl. IGP (Inv), Punjab."

Second contention of the petitioner is that he submitted an application dated 25.1.2013 to Respondent No. 1 requesting him that investigation should not be changed as the cases are subjudice before the learned trial Court, is again of no consequences as the said application dated 25.1.2013 was for compliance of order No. 71455/Inv/HC dated 16.10.2012 passed by Respondent No. 1. In the stated application alongwith other averments it was also mentioned that:

یہ کہسائل نے جناب DPO صاحب خانیوال کو کئی بار اشتہاری کی گرفتاری کی استدعا کی جس پر مورخہ 22.01.2013 کو دونوں فریق جناب DPO صاحب خانیوال کے پیش ہوئے مگر جنابDPOصاحب نے سائل کی کوئی بات نہ سنی اور کہا کہ دونوں مقدمات تبدیلی تفتیش کے لئے جناب والہ کو بھجوائے جاویں۔ حالانکہ جب دونوں مقدمات میں چالان عدالت میں آ چکے ہیں فرد جرم لگ چکی ہے اور مقدمات کی سماعت شروع ہو چکی ہے جناب DPOصاحب نے صرف اشتہاری کی گرفتاری کی ذمہ داری سے بچنے کے لیے ہر دو مقدمات جناب والہ کو بھجوا دیئے ہیں۔ ان حالات میں جبکہ چالان عدالت میں آچکے ہیں عدالت Cognizance لے چکی ہے فرد جرم لگ چکی ہے مزید تبدیلی تفتیش کا کوئی جواز نہ ہے۔ بلکہ حضور والہ سے دست بستہ اپیل ہے کہ جناب DPO صاحب خانیوال اور SHOتھانہ سرائے سدھو کو حکم صادر فرمایا جاوے کہ غیر حاضر ملزمان کی تعمیل کروا کر ان کو عدالت میں پیش کریں۔ اور محمد فاضل جو کہ کچھ دیگر مقدمات میں بھی اشتہاری ہے کو گرفتار کریں۔ کیونکہ مذکورہ ملزم سائل اور سائل کے بچوں کو قتل کی دھمکیاں دے رہا ہے اور جب تک وہ آزاد ہے سائل کو کسی بھی وقت نقصان پہنچا سکتا ہے۔ اشتہاری کی گرفتاری سائل کے خاندان کی زندگی کی ضمانت ہو گیا۔

Frankly legislature has not barred reinvestigation of the case even after submission of report under Section 173, Cr.P.C. Reliance is placed on (2014 SCMR 474) and (2006 SCMR 373)

1. Order dated 9.3.2013 (Annexure-M) impugned by petitioner cannot be termed as a revision of the earlier order or revisit by Respondent No. 1. In the instant case order passed by Respondent No. 1 vide Letter No. 71455/Inv/HC dated 16.10.2012 had never gone operative, rather the recommendation of Board was referred back by the office with the direction to comply with the observations passed by Addl. I.G.P (Investigation) Punjab, Lahore Respondent No. 1. Reference may also be made to the case of "Rehan Hasan Naqvi vs. Pakistan Defence Officers' Housing Authority through Secretary" (2000 CLC 1535), wherein it has been held "Authority competent to make order had power under Section 21, General Clauses Act, 1897 to undo the same but the order could not be withdrawn or rescinded once it had taken legal effect and certain rights were created in favour of an individual and that the principle of locus poententiae would be attracted in such situation."

2. Moreover, by virtue of Section 21, General Clauses Act, 1897, the authority which can pass an order is entitled to vary, amend, add to or rescind that order. For better appreciation, Section 21 of General Clauses Act, 1897 is reproduced as under:--

3. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws. Where by any [Central Act] or Regulation, a power to [issue notifications], order, rules, or bye-law is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any [notifications], orders, rules or bye-laws so issued].

4. From the above discussion, I have no doubt in my mind in holding that Letter No. 71455/Inv/HC dated 16.10.2012 and No. 74778/Inv/HC dated 31.10.2012 had ever created any right of either party. Hence, this writ petition having no merits is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 171 [Multan Bench Multan]

Present: Shahid Bilal Hassan, J.

MEER HASSAN (deceased) through his Legal Representative--Petitioners

versus

HAKEEM MUHAMMAD SANA ULLAH (deceased) through his Legal Heirs--Respondents

C.R. No. 623-D of 2006, decided on 27.3.2014.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 117--Burden of proof--Agreement to sell was reduced into writing--Suit was transferred--Two marginal witnesses--Validity--Mere taking of a stance in pleadings is not sufficient, but same has to be proved by producing cogent, reliable, trustworthy and confidence inspiring evidence--Art. 117 of Qanun-e-Shahadat Order, 1908 elaborates that such person will be under burden to prove any stance which he asserts in pleadings. [P. 175] A

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 17--Agreement to sell--Competence and number of witnesses--Validity--According to Art. 17 of Qanun-e-Shahadat Order, 1984, it is provided that for proving a document two witnesses are required to be produced. [P. 176] B

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 79--Execution of agreement to sell was proved--Proof of--Marginal witness was admittedly died and marginal witnesses were produced--Validity--It is mandatory to prove contents of a document by producing two truthful witnesses--Scribe of document could be examined by party for corroboration of evidence of marginal witnesses or in eventuality those were conceived by Art.79 of Qanun-i-Shahadat Order, 1984, itself not as a substitute--When marginal witnesses have been produced by predecessor of respondents, evidence of scribe is of no value. [P. 176] C & D

Colonization of Government Lands Act, 1912 (V of 1912)--

----S. 19--Civil Procedure Code, (V of 1908), S. 115--Agreement to sell and renewed agreement to sell--Contents of two documents--Signatures--Revisional jurisdiction--Validity--Point involved in additional issue regarding necessary permission of Collector under Section 19 of Colonization of Government Lands Act, same has rightly been appraised and addressed by Appellate Court and does not call for any interference by High Court--In revisional jurisdiction Court has only to see, whether any irregularity, illegality and wrong exercise of jurisdiction vested in a Court has been committed--It is well settled by now that High Court cannot interfere in findings on question of law or facts, howsoever, erroneous in exercise of its revisional/jurisdiction. [P. 178] E & F

Revisional Jurisdiction--

----No such occasion has arisen at trial as well as appellate stage, so High Court found no illegality, irregularity or infirmity, wrong exercise of jurisdiction vested upon Courts below while passing impugned judgments and decrees, respectively; therefore, same do not call for any interference by High Court while exercising revisional jurisdiction. [P. 179] G

Mian Muhammad Akram, Advocate for Petitioners.

Date of hearing: 27.3.2014.

Order

Muhammad Saghir and others, successors of Meer Hassan (deceased)/plaintiff through the instant civil revision have called into question the legality and sustainability of the impugned judgments and decrees dated 22.11.1987 & 15.03.2005, by which learned Civil Judge 1st Class, Mailsi & learned District Judge, Vehari, while deciding the suit titled "Hakeem Muhammad Sana Ullah vs. Meer Hassan” for Specific Performance of Contract, decreed the same and appeal preferred by the petitioners was dismissed, respectively.

1. Briefly, the facts leading towards this civil revision are as such that predecessor in interest of present respondents namely Hakeem Muhammad Sana Ullah (deceased) instituted a suit for specific performance of contract against Meer Hassan, deceased predecessor in interest of the petitioners pleading therein that Meer Hassan agreed to sell land measuring 99 kanals 8 marlasbearing Khatooni Nos. 231, 222 to 226, falling in Khata No. 5/6, 20 to 22, 24/1-2-19 to 23, situated in Chak No. 166/WB, Tehsil Mailsi, in lieu of Rs. 100,000/- accepting Rs. 5000/- as earnest money and later on by receiving Rs. 20,000/- in order to clear the arrears in respect of instalments of money to be paid to acquire proprietary rights for the said land and then handed over possession of the same to the predecessor of the respondents (Hakeem Muhammad Sana Ullah). It has further been asserted that Rs. 10,000/- were later on (10.05.1984) again paid to Meer Hassan deceased predecessor of the present petitioners, at the time of execution of conveyance deed in his (Meer Hassan's) favour as a part of payment of total amount and he (Meer Hassan) executed another agreement to sell as a renewal of the earlier agreement; but later on despite receiving the aforesaid amounts, he (Meer Hassan) refused to keep his words, inspite of the fact that predecessor in interest of the respondents (Hakeem Muhammad Sana Ullah) was ready to perform, his part of agreement i.e. payment of remaining amount of Rs. 65,000/-, which culminated in filing of the suit. The suit was contested by Meer Hassan (predecessor in interest of the present petitioners), who raised legal as well as factual objections. The divergence in the pleadings was summed up into following issues:-

2. Whether the plaintiff has no cause of action as well as locus standi to institute this suit? OPD

3. Whether the alleged agreement deed is fictitious and collusive with one Muhammad Zafar s/o Jan Muhammad, if so to what effect? OPD

4. Whether the parties entered into a valid agreement to sell on 28.03.1982 and that the plaintiff is entitled to the decree for specific performance in respect of the suit land on the basis of the same? OPP

5. Whether the suit is mala fide and that the defendant is entitled to receive special costs from the plaintiff? OPD

6. Relief

Both the parties lead their evidence, pro and contra, in support of their respective versions. Learned trial Court vide its judgment, dated 22.11.1987 decreed the suit in favour of the respondents' predecessor in interest subject to payment of the remaining sale price Rs. 65,000/- to be deposited in the Court on or before 22.12.1987. Meer Hassan, predecessor in interest of the present petitioners challenged said judgment and decree through an appeal before the learned Appellate Court, which was ultimately dismissed vide judgment dated 08.08.1988; resulting into filing of Regular Second Appeal before this Court, same was consequently allowed on 25.10.2003 and case was remanded to the learned Appellate Court with direction to decide application moved by the present petitioners under Order VI Rule 17 of the, CPC read with Order XIV Rule 5 of CPC, at the first instance and decide the appeal afresh. After remand, on 20.01.2004, the said application was accepted and on 20.07.2004, the following additional issue was framed:--

ADDITIONAL ISSUE

Whether necessary permission of the Collector has not been obtained by the plaintiff under Section 19 of the Colonization of Government Lands Act? If so its effect? OPD

On the above additional issue, no evidence was led on behalf of both the parties. After hearing arguments of the learned counsel for parties, the learned Appellate Court vide impugned judgment and decree dated 15.03.2005, dismissed the appeal of the present petitioners; hence, this civil revision assailing the impugned judgments and decrees dated 22.11.1987 and 15.03.2005, respectively inter alia on the following grounds:--

• That the impugned judgments and decrees suffer from misreading and non-reading of evidence; hence, not sustainable in the eyes of law;

• That the learned Courts below have not applied the relevant provisions of law and have decide the suit as well as appeal on wrong premises of law;

• That the findings on Issues Nos. 1 to 5, recorded by learned lower Courts are against law and facts, hence, call for interference;

• That the evidence brought on record has been misread and misinterpreted by learned Courts below; and evidence has not been properly evaluated;

• That material illegalities and irregularities have been committed by the learned Courts below; hence, the impugned judgments and decrees dated 15.03.2005 and 22.11.1987 are liable to be set aside and suit of the respondents is liable to be dismissed.

1. Learned counsel for the petitioners while reiterating the grounds urged in this revision petition has further argued that the impugned judgments and decrees are against facts and law; result of misreading and non-reading of evidence and incorrect appreciation of law; therefore, both the judgments and decrees passed by learned Courts below are liable to be set aside and resultantly the suit of the respondents/plaintiff is liable to be dismissed. Relies on Hakim Ali and another vs. Atta Muhammad and others 1981 SCMR 993, Alam Khan vs. Ahla and 6 others PLJ 1989 Lahore 248, Bashir Ahmad vs. Abdul Majid and 7 others 1992 CLC 1069 Karachi, Muhammad Yaqoob and others vs. Naseer Hussain and others PLD 1995 Lahore 395, Fazal Muhammad and others vs. Mst. Zainab Bibi and others 2001 MLD 2012-Lahore, Sher Baz Khan vs. Mir Adam Khan PLD 2002 Peshawar 1, Mst. Sharman and 11 others vs. Syed Ali Hussain and 18 others 2006 YLR 130-Lahore, Ghulam Abbas and another vs. Murid Hussain 2006 YLR 498-Lahore, Rais Gul Muhammad and others vs. Muhammad Abdullah Khan 2012 CLC 1379-Lahore.

2. Heard.

3. It is the case of respondents' predecessor that Meer Hassan, the original owner of the suit land (predecessor in interest of the petitioners) agreed to sell 99 kanals 08 marlas of land for consideration of Rs. 100,000/- out of which an amount of Rs. 35,000/- was received by him (Meer Hassan) as earnest money and an agreement to sell was reduced into writing, the suit land was to be transferred in favour of the respondents' predecessor, but said Meer Hassan (deceased predecessor in interest of the petitioners) refused to coupe with the demand of the respondents' predecessor in interest and ultimately refused to fulfill his part of agreement. This stance of the respondents' predecessor in interest has specifically been denied by Meer Hassan. When execution of agreement to sell Meer Hassan (predecessor in interest of petitioners), execution whereof has to be proved by the respondents by producing two marginal witnesses before whom such transaction has taken place. Mere taking of a stance in the pleadings is not sufficient, but same has to be proved by producing cogent, reliable, trustworthy and confidence inspiring evidence. Article 117 of the Qanoon-i-Shahadat Order, 1908 elaborates that such person will be under burden to prove any stance which he asserts in the pleadings. The said provision of law is reproduced in verbatim for ease of reference:--

"117. Burden of proof.--(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

According to article 17 of the Qanoon-i-Shahadat Order, 1984, it is provided that for proving a document two witnesses are required to be produced. For ease of reference the said provision of QSO, 1908 is reproduced infra:--

“17. Competence and number of witnesses.--(1) ……….. ……………………..

(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,--

(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and

(b) ………………………………………..”

The respondents' predecessor/plaintiff has produced one marginal witness of Ex.P1, whereas other marginal witness has admittedly died and marginal witnesses of Ex.P2 have also been produced, the execution of agreement to sell is proved in accordance with law, because under Article 79 of the Qanoon-e-Shahadat Order, 1984, it is mandatory to prove the contents of a document by producing two truthful witnesses. For ease of reference, said Article is reproduced as under:--

"Article 79. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

Furthermore, there is no denial to the fact that scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses or in the eventuality those were conceived by Art.79 of Qanun-i-Shahadat Order, 1984, itself not as a substitute. In this case, when the marginal witnesses have been produced by the predecessor of the respondents, the evidence of scribe is of no value. In this regard safer reliance can be placed on Hafiz Tassaduq Hussain vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) where it has been held that:--

"Transaction of sale of immovable property (if not a conditional sale) was the conclusive transfer of an absolute title and ownership of property unto the vendee in presentee, while agreement, to sell was meant for accomplishing the object of sale in futurity and for all intents and purposes it pertained to future obligations of the parties thereto---Sale agreement/agreement to sell was duly covered and fell within the pale of Art. 17 of Qanun-e-Shahadat, 1984--Purpose and object of attestation of document by certain number of witnesses and its proof through them was meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and thus legislature in its wisdom had established class of documents which were specified in Art. 17 of Qanun-e-Shahadat, 1984--For validity of instruments falling within Art. 17 of Qanun-e-Shahadat, 1984, the attestation as required therein was absolute and imperative--For the purpose of proof of such a document, attesting witnesses had to be compulsorily examined as per requirement of Art. 79 of Qanun-e-Shahadat, 1984, otherwise it was not to be considered and taken as proved and used in evidence--Such principle of law was in line with the principle that where law required an act to be done in a particular manner, it had to be done in, that way and not otherwise--Scribe of document could only be a competent witness in terms of Art. 17 and 79 of Qanun-e-Shahadat, 1984, if he had fixed his signature as an attesting witness of the document and not otherwise--Signing of document in the capacity of a writer did not fulfill and meet mandatory requirement of attestation by him separately--Scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses or in the eventuality those were conceived by Art. 79 of Qanun-e-Shahadat, 1984, itself not as a substitute--Mandatory provisions of law had to be complied and fulfilled and only for the reasons or the perception that such attesting witness if examined would turn hostile did not absolve the concerned, party of its duty to fallow the law and allow the provisions of Qanun-e-Shahadat, 1984, relating to hostile witness take its own course"

In view of above, the respondents' predecessor/plaintiff successfully proved his case of making payment of earnest money, subsequent amounts at different times i.e. Rs. 35,000/- to Meer Hassan, predecessor in interest of the petitioners, who admittedly signed the agreement to sell Ex.P1 and renewed agreement to sell Ex.P2; meaning thereby he had admitted the contents of the said two documents and then put his signatures thereon. Moreover, the point involved in additional issue regarding necessary permission of the Collector under Section 19 of the Colonization of Government Lands Act is concerned, same has rightly been appraised and addressed by the learned Appellate Court and does not call for any interference by this Court. Even otherwise, in revisional jurisdiction the Court has only to see, whether any irregularity, illegality and wrong exercise of jurisdiction vested in a Court has been committed. Section 115 of C.P.C. is reproduced below for case of reference:

"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."

It is well settled by now that the High Court cannot interfere in the findings on question of law or facts, howsoever, erroneous in exercise of its revisional jurisdiction. This view has been fortified by case of Hakim Ud Din through L.Rs. & others vs. Faiz Bukhsh & others 2007 SCMR 870, in which it has been held that:

"It is established proposition of law that finding on questions of law or fact, howsoever, erroneous the same may be regarded by a Court in exercise of its revisional jurisdiction under Section 115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity," Similar view has been adopted in case of Abdul Aziz vs. Sheikh Fateh Muhammad 2007 SCMR 336 wherein it has been invariably held that, "Interference in concurrent findings on controversial question of facts or mixed, question of law and facts in revisional jurisdiction for mere reason that an others view of evidence was also possible, is not proper."

But in the present case, no such occasion has arisen at the trial as well as appellate stage, so this Court finds no illegality, irregularity or infirmity, wrong exercise of jurisdiction vested upon the Courts below while passing the impugned judgments and decrees, respectively; therefore, same do not call for any interference by this Court while exercising revisional jurisdiction.

1. So far as the case law submitted by learned counsel for the petitioners is concerned, with utmost respect, same has no relevance to the facts and circumstances of the instant case; therefore, does not render any assistance to the petitioners' cause; as each and every case has its own peculiar facts and circumstances and the Courts have to evaluate the same with independent mind so as to administer justice in accordance with law.

2. In view of the above said discussion, when the petitioners/plaintiff have failed to establish any illegality, irregularity or infirmity in the findings of learned Courts below rendered in the impugned judgments, it can be safely observed that the same are result of appraising the evidence in true perspective, applying of judicial mind, rightly interpreting the law and upto the dexterity, therefore, same do not call for any interference by this Court. Resultantly, by placing reliance on the judgments supra, this civil revision is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2015 Lahore 179 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

SOHAIL SARWAR--Petitioner

versus

JUDGE FAMILY COURT, DISTRICT MULTAN and 8 others--Respondents

W.P. No. 1763 of 2014, decided on 10.4.2014.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Misconception of facts--Entries made in nikah nama--Production video regarding marriage ceremony--Contents of video may be added--Inserted or deleted by making use of modern software--Authenticity of a video--Maintainability of writ petition--Probably, due to such confusion, petitioner has filed writ petition to assail order passed by trial Court, proceeding as he did on assumption that an appeal was not maintainable against an interlocutory order under Section 14 of Family Courts Act, 1964 and that his only remedy was to file a writ petition--Petitioner did not avail of his remedy before District Judge, by filing a revision petition against impugned order--In no case could he be allowed to bypass a forum available to him--Writ petition under Art. 199 of Constitution only if he does not have any other efficacious and adequate remedy--In face of alternative remedy available to petitioner, instant petition filed by petitioner is misconceived and is liable to be dismissed on that score alone--Even if law permits such evidence to come in Court is to be cautious and wary of admitting it in evidence, in routine--It is to exercise caution before allowing production of such evidence, which may so easily be manufactured and fabricated. [Pp. 182 & 183] A, B & C

Mr.Shakeel Javed Choudhary, Advocate for Petitioner.

Messers Rao Jamshaid Ali Khan and Rana Muhammad Shakeel, Advocates for Respondents.

Date of hearing: 10.4.2014.

Order

Through this petition, the petitioner has assailed the validity of the order dated 21.01.2014 passed by learned Civil Judge, Multan, whereby the application moved by the petitioner/plaintiff for bringing in an amendment to the list of reliance annexed to the plaint in a suit for declaration instituted by him was partially dismissed.

1. The facts, in brief, are that the petitioner instituted a suit for declaration, contending that the purported entries made in Columns Nos. 13, 14, 17 & 18 of Nikah Nama dated 25.02.2011 are bogus and the outcome of fraud and misrepresentation. On the basis of these averments, a declaration was sought that the same were not binding upon the petitioner and ineffective upon his rights.

2. Mst. Nadia Kausar, Respondent No. 2 herein put in an appearance and filed a written statement, controverting all the assertions made by the petitioner/plaintiff. It was maintained by her that the allegations levelled by the petitioner were baseless, groundless, ill-founded and that they are just an attempt on his part to evade the liabilities arising from the Nikah Nama dated 25.02.2011.

3. As the suit got under way, the petitioner himself appeared as PW-1, and in his deposition he reiterated the contents of the plaint. He also examined Rana Muhammad Wakeel (PW-2) and Mehboob Ali (PW-3). Needless to say, the petitioner was to tender in evidence the documents as well in support of his pleas. Instead of producing the same, he came up with an application on 26.11.2013 seeking to incorporate certain items in the list of reliance filed by him under Order VII Rule 14, CPC. The details of the documents sought to be produced were set out in Paragraph No. 2 of the application. It would be wholly unnecessary to give the details for the simple reason that the application moved by the petitioner was by and large allowed by the learned Civil Judge, Multan. However, it was disallowed to the extent of allowing the petitioner to produce the video regarding the marriage ceremony.

4. In support of this petition, Mr. Shakeel Javed Choudhary, learned counsel for the petitioner has contended that when the application of the petitioner was allowed in the main, there was no justification to disallow it in part. He submits that the learned trial Court tried to run with the hare and hunt with the hounds. He argues that the video made at the time of the marriage between Respondent No. 2, Mst. Nadia Kausar and the petitioner was a genuine one and the question of its manufacturing, tampering or mixing it up with other video clippings did not arise at all. Therefore, according to him, the production of the video in question was essential to the just and fair decision of the case instituted by the petitioner. He concludes his submissions by maintaining that non-production of the video in question would seriously prejudice the case of the plaintiff.

5. On the other hand, Messers Rao Jamshaid Ali Khan and Rana Muhammad Shakeel Advocates, learned counsel for Respondent No. 2 has seriously opposed this petition, arguing that it has never been the case of the plaintiff that any video was made at the time of solemnizing of the marriage; that no such assertion was made by the petitioner when he appeared as PW-1; that the contents of a video in question may be tampered very easily and any clipping may be added, inserted or deleted by making use of the modern software. Therefore, the authenticity of such a video, whose maker is not known, was rightly disallowed by the learned trial Court. They further submitted that since the application of the petitioner was allowed to the large extent, the petitioner/plaintiff has got no right at all to voice his grievance by filing a writ petition.

6. I have heard the learned counsel for the parties at length, besides perusing the documents appended to the writ petition.

7. I am of the considered view that this writ petition is not maintainable. As noted above, the petitioner had instituted a civil suit for declaration along with perpetual injunction, maintaining that the entries made in columns Nos. 13, 14, 17 & 18 of Nikah Nama dated 25.02.2011 are bogus, deceptive, fraudulent and as such ineffective upon his rights. As a consequential relief, the petitioner asked for the correction of the record pertaining to the entries recorded in the aforementioned columns of Nikah Nama. For all intents and purposes, it was a civil suit. However, due to some misconception of facts and law, the petitioner/plaintiff has been regarding it as a family suit, and this fact is amply borne out by the contents of the instant writ petition. Probably, due to this confusion, the petitioner has filed this writ petition to assail the order dated 21.01.2014 passed by the learned trial Court, proceeding as he did on the assumption that an appeal was not maintainable against an interlocutory order under Section 14 of the W.P. Family Courts Act, 1964 and that his only remedy was to file a writ petition. The fact of the matter is that the petitioner did not avail of his remedy before the learned District Judge, Multan, by filing a revision petition against the impugned order dated 21.01.2014. In no case could he be allowed to bypass a forum available to him. It goes without saying that an aggrieved person may file a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 only if he does not have any other efficacious and adequate remedy. In the face of the alternative remedy available to the petitioner, the instant writ petition filed by the petitioner is misconceived and is liable to be dismissed on this score alone.

8. Even on merits, the petitioner could not make out any case for the interference of this Court. It was rightly held by the learned trial Court that the petitioner attempted to spring a surprise on Respondent No. 2/defendant by coming out with a video, about which no mention was ever made by him either at the time of filing the suit or in the course of his deposition. Again, no application was made by the petitioner under Order XIII, CPC to justify as to why he did not make an entry on the form prescribed under Order VII Rule 11, CPC regarding the disputed video in his possession, which was to be produced later on. Therefore, the objection raised by the respondent's side that the video in question is a fake, fabricated and made-up one, cannot be ruled out. Furthermore, unless the maker of the CD was examined and he was subjected to cross-examination, a question mark would continue to hang over its authenticity. It can also not be disregarded that in this day and age, gadgets and software are plenty to help join video clippings to paint a picture of one's liking. In fact, anything may be depicted/portrayed, with disastrous consequences. Therefore, even if the law permits such evidence to come in, the Court is to be cautious and wary of admitting it in evidence, in routine. It is

to exercise caution before allowing the production of such evidence, which may so easily be manufactured and fabricated.

1. The upshot of the above discussion is that there is no merit in this petition, which is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 183 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

SUI NORTHERN GAS PIPE LINES LTD. through its GeneralManaager--Appellant

versus

ShahzadaKHOSH BAKHAT KHAN--Respondent

F.A.O. 122 of 2012, heard on 19.5.2014.

Punjab Consumer Protection Act, 2005--

----S. 25--No amount will be charged on basis of wrong bill with further direction to pay lawyer’s fee--Question of--Whether Distt. Consumer Court established can adjudicate upon despite involving excessive billing being Court of limited jurisdiction--Validity--Claim for damages arising out of contravention of any provision of this Act, 2005 shall be filed before a Consumer Court set up under Act--Consumer Court established under Punjab Consumer Protection Act, 2005 is not a Court of general jurisdiction--It is its duty to examine allegations raised in complaint in order to determine its jurisdiction--Prayer for cancellation of gas bill or revising of gas bill by a gas company could not have conferred jurisdiction upon Consumer Court and same falls outside purview of special tribunal--Consumer Court being a Court of limited jurisdiction, even if question of jurisdiction has been raised or not, was under an obligation to decide as to whether jurisdictional facts are existing to confer jurisdiction upon Consumer Court--When Consumer Court steps out of four corners of Punjab Consumer Protection Act, 2005, order passed by it would be a result of defective exercise of jurisdiction--Any person aggrieved by any order or decision of delegatees of a power delegated by authority has right to prefer an appeal to authority and authority shall hear and decide appeal within ninety days from its presentation--Claim of respondent falls within ambit of Oil & Gas Regulatory Authority Ordinance, 2002 which provides an exclusive remedy in respect of disputes between consumer and licensees--Even otherwise under settled principles of law provisions of a special law on subject excludes application of general law. [Pp. 186, 187 & 189] A, B, C, D & E

Mr. MuhammadSiddique Bhatti, Advocate for Appellant.

Nemo for Respondent.

Date of hearing: 19.5.2014.

Judgment

Through this appeal the appellant Company has challenged the order dated 19.6.2012 passed by the learned District Consumer Court, Multan.

1. Notice was issued to the respondent but despite service no one appeared on his behalf and, therefore, the respondent was already proceeded against ex-parte on 12.2.2014.

2. Precisely, the facts of the case are that respondent filed a complaint under Section 25 of Punjab Consumer Protection Act, 2005 for revising the bill for the month of October, 2011, sent by the appellant Company, on the ground that the same was against the reading shown on the meter.

3. The learned District Consumer Court, Multan, through the impugned order dated 19.6.2012, disposed of the complaint filed by the respondent directing the appellant Company that no amount will be charged on the basis of wrong bill with a further direction to pay the lawyer's fee to the respondent incurred by him on the proceedings.

4. Learned counsel for the appellant Company argued that the order passed by the learned District Consumer Court, Multan, was without jurisdiction as the dispute raised in the complaint does not fall within the jurisdiction of the learned District Consumer Court established under Punjab Consumer Protection Act, 2005.

5. I have heard the arguments advanced by learned counsel for the appellant and have also given my anxious consideration.

6. The matter involved in the present appeal is twofold; firstly, as to whether the District Consumer Court established under Punjab Consumer Protection Act, 2005 can adjudicate upon the disputes involving excessive billing being a Court of limited jurisdiction, and secondly, as to whether when a mechanism/remedy has been provided under Oil & Gas Regulatory Authority Ordinance, 2002, which is on one hand a federal legislation promulgated under Item No. 2 Part II of the Fourth Schedule of the Constitution of Islamic Republic of Pakistan, 1973 i.e. Federal Legislative List and on the other hand is a special law and special law would prevail over general law. For answering first question, I would examine different provisions of the Punjab Consumer Protection Act, 2005. Section 2(c) of the Act defines the word "consumer" as under:--

"consumer" means a person or entity who--

(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or

(ii) hires any services for a consideration and includes any beneficiary of such services."

In continuation to Section 2(c) of the Act Section 2(d) defines the word "damage" as under:--

"damage" means all damage caused by a product or service including damage to the product itself and economic loss arising from a deficiency in or loss of use of the product or service;"

The term "manufacturer" has been defined in Section 2(h) of the Act which reads as under:--

"manufacturer" includes a person or entity who--

(i) is in the business of manufacturing a product for purposes of trade or commerce;

(ii) labels a product as his own or himself as the manufacturer of the product;

(iii) as a seller exercises control over the design, construction or quality of the product that causes damage;

(iv) assembles a product by incorporating into his product a component or part manufactured by another manufacturer; and

(v) is a seller of a product of a foreign manufacturer and assumes or administers warranty obligations of the product, or is affiliated with the foreign manufacturer by way of partial or complete ownership or control; or modifies or prepares the product for sale or distribution;"

Section 4 of the Act is reproduced below:--

"4. Liability for defective products.--(1) The manufacturer of a product shall be liable to a consumer for damages proximately caused by, a characteristic of the product that renders the product defective when such damage arose from a reasonably anticipated use of the product by a consumer.

(2) A product shall be defective only if--

(a) it is defective in construction or composition as provided in Section 5;

(b) it is defective in design as provided in Section 6;

(c) it is defective because an adequate warning has given as provided in Section 7; and

(d) it is defective because it does not conform to an express warranty of the manufacturer as provided in Section 8."

Section 25 of the Punjab Consumer Protection Act, 2005 provides that a claim for damages arising out of contravention of any provision of this Act shall be filed before a Consumer Court set up under this Act. This section has to be read in conjunction with Section 28 of the Act which provides a mechanism for settlement of claims. Section 31 of the Punjab Consumer Protection Act, 2005 deals with the nature of reliefs which can be ordered by the Consumer Court and the same is reproduced as under:--

"31. Order of Consumer Court.--If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:--

(a) to remove defect from the products in question;

(b) to replace the products with new products description which shall be free from any defect;

(c) to return to the claimant the price or, as the case may be, the charges paid by the claimant;

(d) to do such other things as may be necessary for adequate/and proper compliance with the requirements of this Act;

(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;

(f) to award damages where appropriate;

(g) to award actual costs including lawyer's fees incurred on the legal proceedings;

(h) to recall the product from trade or commerce;

(i) to confiscate or destroy the defective product;

(j) to remedy the defect in such period as may be deemed fit; or

(k) to cease to providethe defective or faulty service until it achieves the required stranded."

1. The bare reading of these Sections reveals that the Consumer Court established under Punjab Consumer Protection Act, 2005 is not a Court of general jurisdiction. It is its duty to examine the allegations raised in the complaint in order to determine its jurisdiction. Prayer for cancellation of gas bill or revising of gas bill by a gas company could not have conferred jurisdiction upon the Consumer Court and the same falls outside the purview of this special Tribunal. The Consumer Court being a Court of limited jurisdiction, even if the question of jurisdiction has been raised or not, was under an obligation to decide as to whether the jurisdictional facts are existing to confer jurisdiction upon the Consumer Court. As and when the Consumer Court steps out of four corners of Punjab Consumer Protection Act, 2005, order passed by it would be a result of defective exercise of jurisdiction.

2. The question as to whether the Consumer Court can adjudicate upon the disputes for which a complete mechanism is provided is discussed hereinafter. Oil & Gas Regulatory Authority Ordinance, 2002 is promulgated under Item No. 2 Part II of Federal Legislative List. Section 42 of the Oil & Gas Regulatory Authority Ordinance, 2002 reads as under:--

"42. Power to make regulations.--(1) The Authority may, by notification in the official Gazette, make regulations, not inconsistent with the provisions of this Ordinance or the rules, for the carrying out of its functions under this Ordinance.

(2) ………………………..

(a) ………………………..

(b) ………………………..

(c) ………………………..

(d) ………………………..

(e) Procedure for resolving disputes amongst the licensees, consumers and licensees, and users of open access facilities;

(f) ………………………..

(g) ………………………..

(h) ………………………..

(i) ………………………..”

In exercise of the powers conferred under Section 42 of the Ordinance, 2002 complaint resolution procedure has been provided through Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG) and Compress Natural Gas (CNG)] Regulations, 2003 which reads as under:--

"3. Nature of Complaints.--Any person may submit an application with the Registrar for--

(a) any act or thing done or omitted to be done by a licensee or dealer in violation or alleged violation of the Ordinance, rules, regulations, order of the Authority or terms and condition of the license;

(b) non-compliance by the licensee or dealer with the service standards in the areas including but not limited to;

(i) billing;

(ii) connection and disconnection or service;

(iii) metering;

(iv) undue delay in providing service;

(v) safety practices; or

(vi) quantity and quality of natural gas, LPG or CNG being supplied; or

(vii) discriminatory practices of the licensee or dealer."

Section 11 of the Oil & Gas Regulatory Authority Ordinance, 2002 reads as under:--

"Complaints.--(1) Any interested person may file written complaint with the Authority against a licensee for contravention of any provision of this Ordinance or of any rule or regulation."

Any person aggrieved by any order or decision of the delegatees of a power delegated by the Authority has the right to prefer an appeal to the Authority and Authority shall hear and decide the appeal within ninety days from its presentation.

1. On the other hand, there is no dispute that subject of gas is dealt with by Item No. 2 Part II of Federal Legislative List and Oil & Gas Regulatory Authority Ordinance, 2002 is promulgated in exercise of the authority conferred by said Item No. 2. Section 6(2)(i) of the Ordinance provides that the Authority shall resolve the complaints and other claims against licensees for contravention of the provisions of these Ordinance, rules or regulations.

2. To my mind, the claim of the respondent falls within the ambit of Oil & Gas Regulatory Authority Ordinance, 2002 which provides an exclusive remedy in respect of the disputes between the consumer and the licensees. Even otherwise under the settled principles of law the provisions of a special law on the subject excludes the application of general law. The Honourable Supreme Court of Pakistan, in a judgment reported as Inspector General of Police, Punjab, Lahore and others vs. Musthaq Ahmad Warriach and others (PLD 1985 SC 159), has held that it is a settled principle of interpretation of statutes that the provisions of a special law on a subject excludes the application of general law. It would not be out of place to mention here that law framed in exercise of authority conferred by Item No. 2 Part II of the Federal Legislative List in the Fourth Schedule of the Constitution would prevail over conflicting provincial legislation under Article 143 of the Constitution.

3. For what has been discussed above, this appeal is allowed and the complaint filed by the respondent before the learned District Consumer Court is declared to be not maintainable.

(R.A.) Appeal allowed

PLJ 2015 Lahore 190[Multan Bench Multan

Present: ShahKhawar, J.

HUMAIRA HAFEEZ--Petitioner

versus

GOVT. OF PUNJAB through Chairman Punjab Vocational Training Council, Lahore and 5 others--Respondents

W.P. No. 11856 of 2013, decided on 5.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment was permanent in nature and was not on contract basis--Principle of promissory estopple--Job on contract basis was accepted--Validity--Principles of promissory, estopple and locus-poenitentia are not attracted in instant case as appointment offered was on regular basis--Petitioner after going through test and interview was selected on merits and at later stage she could not have been converted on contracts basis--Due to financial constraints petitioner could not be appointed on regular basis is not convincing and cannot be accepted--Vested right by way of selection of petitioner has been accrued in her favour and at later stage, could not be allowed to take a u-turn--Every government department proceeds with process of advertisement to fill up vacant posts, after soliciting approval from finance department and allocation of budget--Petitioner could not be made victim of short comings of department as respondents are under constitutional obligations to treat petitioner in accordance with law--Due to prevailing circumstances of un-employment in country, petitioner had no other option but to accept same--Petitioner lost her constitutional right to invoke jurisdiction of High Court under Art. 199 of Constitution and in same manner to preclude High Court from exercising powers of judicial review against such like arbitrary actions of executive.

[Pp. 192 & 193] A, D & E

General Clauses Act, 1897--

----S. 21--Constitution of Pakistan, 1973, Art. 199--Appointment was permanent in nature and was not on contract basis--Principle of promissory estopple--Minimum limitation--Public functionaries have powers to make, include, to add, amend, vary or rescind orders, rules and bye-laws but same could be exercised within certain limitations--When order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon it, a very valuable right accrues to that party and, therefore, authority becomes functus officio to vary, rescind or cancel its earlier order because law does not allow 'volte face' to authority. [P. 192] B & C

Haji Muhammad Tariq Aziz Khokhar, Advocate for Petitioner.

Mr. Muhammad Aurangzeb Khan,Asstt. A.G. with Abid Hussain, Principal Vocational Training Institute Kot Mithan and Anwar Mehmood, Area Manager, D.G. Khan for Respondents.

Date of hearing: 5.5.2014.

Order

Through instant writ petition, the petitioner has sought direction to Respondent No. 2 to issue appointment letter to her for the post of junior Instructor Computer Applications/Office Professional Computer Software on regular basis.

1. Brief facts of the case are that the respondents-department advertised the posts of Junior Instructor Computer Applications/Office Professional Computer Software. The petitioner being Master in Computer Science having one year appropriate experience applied for the said post. She passed the NTS test, qualified interview and short listed by Respondent No. 1. Merit list was prepared whereby the petitioner was selected as Junior Instructor of CA & OP of VTI, Kot Mithan vide meeting of recruitment committee held on 30.08.2012 and she was issued offer of appointment.

2. The grievance of the petitioner is that as contemplated in the advertisement dated 27.04.2012, the said appointment was permanent in nature and was not on contract basis. Parawise comments were requisitioned which were accordingly filed on behalf of Respondent No. 1. In parawise comments, it is mentioned that the petitioner cannot be appointed on regular basis due to financial constraints. It is contended that since the petitioner has accepted the appointment on contract basis, so she cannot claim to be appointed on regular basis and principle of promissory estopple is applied to the petitioner.

3. The reason assigned in the parawise comments is not tenable in law. In the advertisement, there is no mention of appointment on contract basis whereas the minutes of .meeting dated 30.08.2012 reflect that the petitioner was selected against the post of Junior Instructor Computer Applications/Office Professional Computer Software on merits, on regular basis with a probation period.

4. Arguments heard. Record perused.

5. The principles of promissory, estopple and locus-poenitentia are not attracted in the present case as the appointment offered was on the regular basis. The petitioner after going through the test and interview was selected on merits and at the later stage she could not have been converted on contracts basis. The version of Respondent No. 1 that due to financial constraints the petitioner could not be appointed on regular basis is not convincing and cannot be accepted. A vested right by way of selection of the petitioner has been accrued in her favour and at the later stage, the respondents could not be allowed to take a u-turn.

6. Rather in Section 21 of the General Clauses Act, 1897, the public functionaries have powers to make, include, to add, amend, vary or rescind orders, rules and bye-laws but same could be exercised within certain limitations, which have been interpreted by the Hon'ble Superior Courts. In a judgment reported as Mir Ghulam Abid Khan versus Pakistan through Secretary and another (2000 CLC 443) passed by learned Division Bench of Hon'ble Sindh High Court, it was held that "the principle enshrined in Section 21 of the General Clauses Act, which unambiguously postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by it but this power is not absolute as it is subject to certain limitations. The minimum limitation is that when the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon it, a very valuable right accrues to that party and, therefore, the authority in such circumstances becomes functus officio to vary, rescind or cancel its earlier order because the law does not allow 'volte face' to the authority. This view was also endorsed' by the Hon'ble Supreme Court of Pakistan in case reported as Pakistan versus Muhammad Hamayatullah (PLD 1969 SC 407) wherein it was held that the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. This power is, however, subject to the exception that where the order has taken legal effect and in pursuance thereof, certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the determent of those rights."

7. The case of the present petitioner also falls within the parameters enshrined by the Hon'ble Supreme Court of Pakistan. The vested right has been created in favour of the petitioner and after her

appointment on regular basis, she cannot be compelled to work on contract basis.

1. This is an admitted fact that every government department proceeds with the process of advertisement to fill up vacant posts, after soliciting approval from Finance Department and allocation of budget. The advertisement could not be issued by the respondents without approval from the Finance Department. The petitioner could not be made victim of the short comings of the department as the respondents are under the constitutional obligations to treat the petitioner in accordance with law.

2. So far as acceptance of job by the petitioner on contract basis is concerned, the same could not be made basis of withholding permanent appointment. The fact remains that due to prevailing circumstances of un-employment in the country, the petitioner had no other option but to accept the same. It does not mean that the petitioner lost her constitutional right to invoke the jurisdiction of this Court under Article 199 of the Constitution and in the same manner to preclude this Court from exercising powers of judicial review against such like arbitrary actions of the executive.

3. A vested right of petitioner has been accrued in favour of the petitioner. The contentions raised by learned counsel for the respondents are not tenable in law and the impugned order is hereby set-aside. Respondents No. 1 and 2 are directed to issue fresh appointment fetter to the petitioner on regular basis w.e.f. the date she assumed the charge as Junior Instructor Computer Applications/Office Professional Computer Software.

4. In above terms, the instant writ is allowed.

(R.A.) Petition allowed

PLJ 2015 Lahore 193[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

PRINCIPAL SARDAR KAUREY KHAN, PUBLIC HIGHER SECONDARY SCHOOL, MUZAFFARGARH and another--Petitioners

versus

PUNJAB LABOUR APPELLATE TRIBUNAL NO. II, MULTAN and 2 others--Respondents

W.P. No. 6112 of 2014, decided on 13.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Service of teacher was terminated--Interim order was assailed--Operation of judgment was partially stayed to extent of back benefits to be awarded--Grounds of appeal--Question of maintainability of writ petition against interim order--Validity--Questions being raised before High Court regarding maintainability of grievance petition and jurisdiction to adjudicate upon same have been raised by petitioners in appeal--Petitioners was specifically asked to withdraw appeal before he could be allowed to call into question jurisdiction through writ petition--Duplication of proceedings are neither practicable nor permissible in law--Petitioners might either continue with their appeal before or press ahead with instant petition, after withdrawing appeal filed by them before Labour Appellate Tribunal--They cannot be allowed to adopt such a course at cost/expense of rights and interests of respondent--It rests with respondent as to how it exercises its jurisdiction at time of entertaining an appeal and/or how it proceeds to suspend operation of an impugned judgment wholly or partially--Its hands cannot be forced by petitioners and under no circumstances can they be allowed to regulate proceedings of respondent--Petition was dismissed. [Pp. 195 & 196] A, B, C & D

Syed Athar Hasan Shah Bukhari,Advocate for Petitioners.

Date of hearing: 13.5.2014.

Order

Through this petition, the petitioners have assailed the following interim order dated 05.05.2014 passed by the Punjab Labour Appellate Tribunal No. II, Multan:--

`Meanwhile, appellant-institution will take the Respondent on duty as teacher till the final decision of the instant appeal. However, to the extent of back benefits order dated 28.03.2014 passed by learned Labour Court No. II, D.G. Khan is hereby suspended till next date, subject to notice.’

1. This writ petition arises out of a grievance petition made by Mst. Firdous Fatima, Respondent No. 3 before Punjab Labour Court No. II. D.G. Khan. It was alleged by her that she was a Teacher by profession and that her service was terminated by the petitioners vide order dated 27.06.2007, without any valid and cogeng reasons.

2. It is pertinent to mention that the petitioners allegedly conducted an inquiry before dispersing with the services of Respondent No. 3. As it is, the inquiry report and the consequential termination order passed against Respondent No. 3 were set aside by Punjab Labour Court No. II, D.G. Khan, Respondent No. 2 vide judgment dated 28.03.2014. Resultantly, Respondent No. 3 was ordered to be reinstated in service immediately. She was also held to be entitled to back benefits.

3. Feeling aggrieved, the petitioners assailed the aforesaid judgment dated 28.03.2014 passed by Respondent No. 2 by filing an appeal before the Punjab Labour Appellate Tribunal No. II, Multan, Respondent No. 1. It was also prayed that the operation of the impugned judgment be suspended. As stated above, the operation of the impugned judgment was partially stayed to the extent of back benefits to be awarded to Mst. Firdous Fatima, Respondent No. 3, herein. But Respondent No. 1, Punjab Labour Appellate Tribunal declined the interim relief sought by the petitioners as to not allowing her join her duties in the wake of her reinstatement ordered by Respondent No. 2. The petitioners are essentially aggrieved by this part of the order dated 05.05.2014 passed by Respondent No. 1.

4. In support of this petition. Syed Athar Hassan Shah Bukhari Advocate, learned counsel for the petitioner contends that the judgment dated 28.03.2014 passed by Respondent No. 2, Punjab Labour Court No. II, D.G. Khan was coram non judice. He stresses that Mst. Firdous Fatima was not a working woman within the meaning of the Labour Laws, and as such she could not be allowed to file a grievance petition. In amplification of his arguments, he submits that the Labour Court could not assume jurisdiction in the matter. In other words, the very maintainability of the grievance petition brought by Mst. Firdous Fatima, Respondent No. 3 has been questioned. In the same context, doubts have been cast on the jurisdiction of Respondent No. 2, the Labour Court. He goes on to argue that the operation of the impugned judgment dated 28.03.2014 was to be ordered to be suspended as a whole and not in parts. He makes criticism of the impugned order on the ground that by ordering the petitioners to allow Mst. Firdous Fatima take up her duties as a Teacher, the Presiding Officer and Respondent No. 1 has also disclosed his mind. In other words, the appeal filed by the petitioners has been made ineffective.

5. I have heard the learned counsel for the petitioner at length and perused the record appended to the writ petition with his assistance.

6. From the resume of the facts set out in the foregoing paragraphs of this order, it is abundantly clear that the petitioners are aggrieved by the order dated 28.03.2014 passed by the Presiding Officer, Punjab Labour Appellate Court No. II, D.G. Khan, Respondent No. 2 and that they have already assailed the validity and vires of the said order by filing an appeal before Respondent No. 1, Punjab Labour Appellate Tribunal No. II Multan. A perusal of the grounds of appeal filed by the petitioners shows that the questions being raised before this Court regarding the maintainability of the grievance petition filed by Mst. Firdous Fatima, Respondent No. 3 and the jurisdiction of Respondent No. 2 to adjudicate upon the same have been raised by the petitioners in appeal. Needless to say Respondent No. 1 shall address itself to all the questions raised by the petitioners in the appeal filed by them. It is pertinent to mention that the learned counsel for the petitioners was specifically asked to withdraw the appeal from Respondent No. 1 before he could be allowed to call into question the jurisdiction of Respondent No. 2 through the instant writ petition. It was impressed upon him that duplication of proceedings are neither practicable nor permissible in law. The petitioners might either continue with their appeal before Respondent No. 1 or press ahead with the instant petition, after withdrawing the appeal filed by them before Respondent No. 1. It seems that the petitioners intended to eat their cake and have it. They cannot be allowed to adopt such a course at the cost/expense of the rights and interests of Mst. Firdous Fatima, Respondent No. 3.

7. On the one hand, the very maintainability of this petition against an interim order passed by Respondent No. 1 is open to question, especially when the main appeal filed by them before Respondent No. 1 is pending adjudication and, on the other. I have found no infirmity or perversity in the impugned interim order dated 05.05.2014 passed by Respondent No. 1. It rests with Respondent No. 1 as to how it exercises its jurisdiction at the time of entertaining an appeal and/or how it proceeds to suspend the Operation of an impugned judgment wholly or partially. Its hands cannot be forced by the petitioners and under no circumstances can they be allowed to regulate the proceedings of Respondent No. 1.

8. For what has been stated above, there is no merit in this petition, which is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 197[Multan Bench Multan]

Present: ShahKhawar, J.

ABDUL MAALIK and another--Petitioners

versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAY, MULTAN and 5 others--Respondents

W.P. No. 9271 of 2013, heard on 6.5.2014.

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Constitutional petition--Varies of notice were challenged--Appointments for post of LDCs who were selected against quota reserved--Cancelled due to serious irregularities in selection process--Any benefit of promotion can be withdrawn or rescinded at any stage if based on irregularities and contrary to policy and rules and principle of locus poenitentiaewas applicable--Question of--Whether any show-cause notice or personal hearing was offered before passing impugned order--Validity--When a vested right is accrued in favour of any individual, same could not be withheld by just taking petitioner in surprise by withholding same--Art. 25 of Constitution is very clear which requires state functionaries to afford a proper opportunity of hearing to an individual against whom an adverse order is going to be passed--Since petitioners had acquired vested right by way of their promotion as LDCs and neither any show-cause notice was issued nor they were provided right of hearing, which makes whole exercise as illegal, unconstitutional and in glaring violation of principle of natural justice--Petition was accepted. [P. 199] A & B

Mr. AhmedRaza, Advocate for Petitioners.

Mian Ashfaq Hussain, Advocate/Legal Advisor for Pakistan Railways with JahanzaibAhmed Khan, Divisional Personnel Officer, Multan for Respondents.

Date of hearing: 6.5.2014.

Judgment

Through the instant writ petition, the petitioners have challenged the varies of notice dated 01.08.2013, whereby Respondent No. 2 on behalf of Respondent No. 3 intimated the petitioners that the appointments of the petitioners for the post of LDCs, who were selected against 33% quota reserved for former class-IV staff held on 02.04.2013 & 04.04.2013, have been cancelled due to serious irregularities in selection process.

1. The Case of the Petitioner No. 1 is that he having matriculation qualification joined the Pakistan Railways as Telephone Attendant (TPA/Multan Shed) on 08.10.1999 in BS-3 and Petitioner No. 2 also having matriculation qualification joined Pakistan Railways as Fuel Issued Multan Shed on 26.6.1986 in BS-3. Later on, the petitioners were inducted as LDC (BS-7) against 33% in service quota. They along with six others appeared in the test and interviews. Resultantly, the petitioners vide notice dated 08.04.2013, were promoted/posted as LDCs (BS-7) temporarily till further orders. The said notice was issued by Respondent No. 2 on behalf and approval of Respondent No. 3. Soon after their appointment, the petitioners assumed charge as LDCs and have been drawing salaries of BS-07, but astonishingly they received the impugned notice dated 01.08.2013 whereby the promotion/selection of the petitioners was cancelled, hence this petition.

3. Vide order dated 16.8.2013, this Court suspended the operation of the impugned order dated 01.08.2013 and the petitioners are still performing their duties as LDCs. The respondents were issued notices and they filed report and parawise comments. The respondents in their parawise comments maintained that any benefit of promotion can be withdrawn or rescinded at any stage if based on irregularities and contrary to the policy and rules and principle of locus poenitentiae is applicable. Further maintained that according to the Pakistan Railways Personnel Manual 33% quota is allocated /reserved for the former class-IV staff, wherein only one post was available against the said quota but the then Divisional Superintendent, Pakistan Railways promoted four employees including the present petitioners against the available one post. On receipt of complaints, the matter was inquired and an Inquiry Committee was constituted to probe into the illegalities and irregularities in promotion of the petitioners. It is mentioned in the parawise comments that the Inquiry Committee summoned the petitioners for typing test, but they failed. Further submitted that the respondents have carried out departmental as well as criminal proceedings against the former Divisional Superintendent and other officials of the Pakistan Railways, who were found involved in the illegal promotion of the petitioners.

1. When asked from the learned counsel appearing for the respondents as to whether any show-cause notice or personal hearing was offered to the petitioners before passing the impugned order dated 01.08.2013 the learned counsel after seeking instructions from the representative of the Pakistan Railways, who is present in Court, candidly admitted that neither any show-cause notice was issued nor the petitioners were called for personal hearing before-passing the impugned order.

2. When a vested right is accrued in favour of any individual, the same could not be withheld by just taking the petitioner in surprise by withholding the same. Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, is very clear which requires the State functionaries to afford a proper opportunity of hearing to an individual against whom an adverse order is going to be passed. Reference can be made to the judgment of the Honourable Supreme Court of Pakistan in the case of Mrs. Anisa Rehman vs. P.I.A.C. and another case (1994 SCMR 2232), wherein it is held that "there is judicial consensus that the Maxim audi alteram partem is applicable to judicial as well as to non-judicial proceedings. The above Maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein. In the cited case law Respondent No. 1 in its comments to the writ petition admitted the fact that no show-cause notice was issued to the appellant nor she was heard before the impugned order dated 6lh August, 1991 reverting her to Group VI from Group VII. In this view of the matter there has been violation of the principles of natural justice. The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court foiled to exercise.

3. Since the petitioners have acquired vested right by way of their promotion as LDCs (BS-7) and neither any show-cause notice was issued nor they were provided the right of hearing, which makes the whole exercise as illegal, unconstitutional and in glaring violation of the principle of natural justice. This sole reason is sufficient to strike down the impugned notice dated 01.08.2013, which is hereby set-aside. The respondents are directed to allow the petitioners to assume charge of their offices w.e.f. the date of their joining i.e. 08.04.2013 with all back benefits.

4. With these observations, the instant writ petition stands accepted.

(R.A.) Petition accepted

PLJ 2015 Lahore 200[Multan Bench Multan]

Present: ShahKhawar, J.

Dr. MUNIR AHMAD RASHID, SENIOR REGISTRAR CH. PERVAIZ ELAHI INSTITUTE OF CARDIOLOGY, MULTAN--Petitioner

versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB, LAHORE and 4 others--Respondents

W.P. No. 827 of 2013, decided on 30.4.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment on ad-hoc basis--Requirement of appointment was three years practical experience in speciality--Not recognized for purpose of post graduate practical experience--Jurisdiction of High Court--High Court under Art. 199 of Constitution can only interfere where action of public functionaries was based on malafide, violation of law or rule and discrimination--Since appointment was made by duly constituted selection committee and their judgment could not be called by was of filing constitutional petition. [P. 202] A

Punjab Service Tribunals Act, 1974--

----S. 4--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Job on adhoc basis and could be withdrawn after fulfillment by PPSC--Maintainability of petition under Art. 212 of Constitution--It is bounden duty of Secretary Health to get post filled up through PPSC at earliest but duty conferred upon them by Constitution and law is not adhered to--Health department was directed to get post filled-up by an open competition through PPSC within a period of three months so that such like controversy may be avoided--Petition stands disposed of. [P. 203] B & C

Mr. MuhammadRamzan Khalid Joeya, Advocate for Petitioner.

Mr. AllahBakhsh Khan Kalachi, Advocate for Respondent No. 2.

Malik M. Saleem, Advocate for Respondent No. 5.

Dr. Mukhtar Ahmed, Demonstrator/Litigation Officer D.G. Khan Medical College, D.G. Khan.

Date of hearing: 30.4.2014.

Order

Through this petition the petitioner has called in question the order dated 14.01.2013 passed by the Government of the Punjab, Health Department whereby Respondent No. 5 was appointed as Assistant Professor of Cardiology (BS-18) on adhoc basis at D.G. Khan Medical College, D.G. Khan for a period of one year with immediate effect or till the availability of regular incumbent/selectee of the Punjab Public Service Commission whichever is earlier.

1. Brief facts of the case are that Respondent No. 2 invited applications for appointment in different specialties against the posts of Professor, Associate Professor and Assistant Professor through publication in "The Daily Express Multan" dated 11.10.2012. The petitioner alongwith Respondent No. 5 applied for appointment against the post of Assistant Professor (BS-18). The names of the petitioner and Respondent No. 5 appeared in the short listed candidates. The claim of the petitioner is that he fulfilled the criteria mentioned in the advertisement whereas Respondent No. 5 did not meet the criteria of appointment but videorder dated 14.1.2013 Respondent No. 5 was appointed as Assistant Professor (BS-18) on adhoc basis. It is also the case of the petitioner that the petitioner was not intimated the reasons for his non-consideration. Notices were issued to Respondent No. 2 as well as Respondent No. 5. Respondent No. 2 has fully justified the appointment of Respondent No. 5 whereas the appointment of Respondent No. 5 has been highly objected by the present petitioner. It has been emphasized on behalf of the petitioner that the requirement of such appointment was three years practical experience in the respective specialty, which Respondent No. 5 did not hold from a recognized institution after his post-graduation. Further submitted that Respondent No. 5 was working in Nishtar Hospital, Multan in Ward No. 1 (Cardiology Ward) and the same is not recognized for the purpose of post-graduate practical experience as the said ward is not affiliated with the College of Physicians & Surgeons of Pakistan. It is further contended that the petitioner being post-graduate in medicines is working in Ch. Zahoor Elahi, Institute of Cardiology, Multan since 2005. The said Institute of Cardiology is affiliated since 02.07.2008. Finally, it was contended on behalf of the petitioner that he has total experience of six years after post-graduation, which Respondent No. 5 is lacking. Further contended that Respondent No. 5 was proceeded against departmentally for his un-authorized leaves.

2. Arguments heard. Record perused.

3. According to the learned counsel appearing on behalf of Respondents No. 1 and 2, the appointment of Respondent No. 5 is in accordance with the criteria as he fulfilled all the pre-requisites mentioned in the advertisement. According to the result issued by Respondents No. 1 and 2, both the petitioner and Respondent No. 5 were evaludated, wherfrom Respondent No. 5 secured 53 marks out of 100 marks whereas the petitioner secured 46 -narks out of 100 marks. It has been contended that having secured more marks than the petitioner, Respondent No. 5 was selected by the- Selection Board duly constituted. The controversy in hand is pertaining to the qualification and eligibility for the post of Assistant Professor, which is in the sole domain of Respondents No. 1 and 2. Both the parties have presented divergent claims, which need evidence and in jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan. 1973 the same is not allowed. The High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 can only interfere where action of the public functionaries is based on malafide, violation of law or rule and discrimination. Since the appointment in question has been made by the duly constituted Selection Committee by Respondents No. 1 and 2 and their judgment could not be called in question by way of filing Constitutional petition. There are divergent claims based on facts, which are outside the domain of this Court. Reliance has been placed by the learned counsel for Respondent No. 5 on Rana Muhammad Sarwar vs. Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Imam Bakhsh and 4 others vs. Deputy Commissioner Layyah and 16 others (1992 SCMR 365), Muhammad Anis and others vs. Abdul Haseeb and others (PLD 1994 Supreme Court 539), Miss Rukhsana. Ijaz vs. Secretary, Education, Punjab and others (1997 SCMR. 167), Ayyaz Anjum vs. Government of Punjab, Housing and Physical, Planning Department through Secretary and others (1997 SCMR 169), Syed Mazhar Hussain Bukhari vs. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others (1998 SCMR 1948) and Khalid Mahmood Wattoo vs. Government of Punjab and others (1998 SCMR 2280). The judgments relied upon place a bar under Article 212 of the Constitution of the Islamic Republic of Pakistan. 1973 as well as Section 4 of the Punjab Service Tribunal Act, 1974 to interfere in such cases by this Court. Even otherwise the job of respondent No. 5 is on

adhoc basis and could be withdrawn by Respondents No. 1 and 2 alter the same has been filled up by the Punjab Public Service Commission.

1. One of the important aspects of the matter, which is of great concern, is that the said selection of Respondent No. 5 was made on adhoc basis for one year or till the filling up of the vacancy by the Public Service Commission. A considerable time has been passed but Respondents No. 1 and 2 have not bothered to ask the Punjab Public Service Commission to initiate selection of the post of Assistant Professor on regular basis. Such lapse on the part of Respondents No. 1 and 2 could not be ignored. It is the bounden duty of Respondents No. 1 and 2 to get the post filled up through Punjab Public Service Commission at the earliest but the duty conferred upon them by the Constitution and law is not adhered to. This aspect of the matter also needs indulgence by this Court. Respondents No. 1 and 2 are directed to get the post filled up by an open competition through the Punjab Public Service Commission within a period of three months so that such like Controversy may be avoided.

2. For what has been discussed above, the instant writ petition is not maintainable under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 being devoid of merits but at the same time Respondents No. 1 to 4 are directed to get the post filled up through the Punjab Public Service Commission within the stipulated period mentioned. With these observations, the instant writ petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2015 Lahore 203 [Multan Bench Multan]

Present: ShahKhawar, J.

Mst. WAHDUL MAI--Petitioner

versus

DISTRICT POLICE OFFICER, MUZAFFARGARH and 3 others--Respondents

Constitution of Pakistan, 1973--

----Arts. 5, 10 & 199--Law empowered to make arrests of citizens, involved in cognizable offence--Loyalty to state and obedience--Validity-- Loyalty to state is basic duty of every citizen (2) obedience to Constitution and law is (inviolable) obligation to every citizen wherever he may be and of every person for time being within Pakistan--Member of law enforcing agencies throughout country are supposed to go through and understand, same, so that they know their duties and obligations towards state as well as citizens. [P. 204] A & B

Nemo for Petitioner.

Mr. Aziz-ur-Rehman Khan, Asstt. AG for Respondents.

Date of hearing: 22.5.2014.

Order

The alleged detenue has been produced. Learned Assistant Advocate General states that the alleged detenue has been arrested in three different FIRs and he is under interrogation. Further contends that the allegation of arresting the accused on 04.05.2014 is not correct. Muhammad Sharif S.I./Station House Officer was asked whether he has read Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 who replied in negative.

1. This is strange that the police officers who under the Constitution and the law are empowered to make arrests of the citizens, involved in cognizable offences, while adhering to the provisions of the Constitution of Islamic Republic of Pakistan, 1973 and specially Article 10, which provides safeguards as to arrest and detention. This is astonishing that a Sub-Inspector of Punjab Police has not even read this important Article of the Constitution, which he is supposed to learn by heart. It reflects that the Punjab Police as well as police of other provinces is not imparting Constitutional education, during the departmental courses to their personnel. In the same manner, loyalty to State and obedience to Constitution and Law is mandated in Article 5 of the Constitution of Islamic Republic of Pakistan, 1973 which provides that (1) Loyalty to the State is the basic duty of every citizen (2) Obedience to the Constitution and Law is the (inviolable) obligation to every citizen wherever he may be and of every person for the time being within Pakistan.

2. Keeping in view the above said mandatory provisions of the Constitution, the member of the law enforcing agencies throughout the country are supposed to go through and understand, the same, so that they know their duties and obligations towards the State as well as the citizens.

3. The Deputy Registrar (Judicial) of this Court is directed to circulate copies of this order to the Secretary, Government of Pakistan, Ministry of Interior, Chief Secretaries and Provincial Police Officers

(IGs) of all provinces with a direction that they should include Chapter-I, (Fundamental Rights) of the Constitution of Islamic Republic of Pakistan, 1973, as a compulsory subject in the curriculums of the courses which are offered to the members of the law enforcing agencies during their courses, at all levels.

1. Since the alleged detenue has been produced who is now in the valid custody of police so, present writ petition with the above observations stands disposed of.

(R.A.) Petition disposed of.

PLJ 2015 Lahore 205[Multan Bench Multan]

Present: Arshad Mahmood Tabassum, J.

SUI NORTHERN GAS PIPELINE LIMITED (SNGPL) through its General Manager, Multan and 2 others--Appellants

versus

AFLATOON KHAN through AbdulHaq and another--Respondents

F.A.O. No. 144 of 2012, heard on 19.5.2014.

Punjab Consumer Protection Act, 2005--

----S. 33--Domestic consumer of SNGPL--Sticky meter and excess billing--Disconnecting connection on account of sticky charges--Power of Consumer Court to redress of grievances of consumers of natural gas--Mechanism is available in shape of complaint resolution procedure--Powers and functions of OGRA--Mechanism was provided to consumers of natural gas for redressal of grievance--OGRA Ordinance is federal law whereas Punjab Consumer Protection Act, 2005 is provincial legislation--Validity--Similarly, Punjab Consumer Protection Act, 2005, is a general law catering for redressal of grievances of consumers in general, whereas OGRA Ordinance and Regulations framed thereunder are special law, which cater for grievances of consumers of natural gas--Provisions of OGRA Ordinance and Regulations framed there-under were to apply and not provisions of Punjab Consumer Protection Act--Jurisdiction assumed by District Consumer Court, in instant matter, is without any lawful authority and impugned order, passed by it is a nullity in eye of law, which is hereby set aside by accepting appeal. [P. 208 & 209] A & B

Rao Muhammad Iqbal, Advocate for Appellants.

Ex-parte for Respondents.

Date of hearing: 19.5.2014.

Judgment

Aflatoon respondent, a domestic consumer of SNGPL (the appellant), being aggrieved by the sticky meter and excess billing, lodged claim with the learned District Consumer Court, Dera Ghazi Khan for redressal of his grievance and refund of excess amount of Rs. 920+1190, charged by the appellant. The claim was contested by the appellant. However, the learned District Consumer Court vide order dated 30.08.2012, partly accepted the claim by cancelling half of the amount of the sticky charges and directed the appellant to reduce the disputed charges upto 50% by issuing modified bill and also to replace the sticky meter with a new meter functioning properly. It also restrained the appellant from disconnecting the connection on account of sticky charges. Hence, this appeal.

1. Learned counsel for the appellant has argued that the learned District Consumer Court had no jurisdiction in the matter in view of the fact that for the redressal of the grievances of the consumers of natural gas, a separate mechanism is available in the shape of Complaint Resolution Procedure [For Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG)] Regulations, 2003.

2. Respondent No. 1 has not turned up despite issuance of notice, therefore, he is proceeded against ex-parte.

3. Heard. Record perused.

4. The subject of natural gas is listed in the 4th Schedule to the Constitution of the Islamic Republic of Pakistan, Item No. 2 in Para (ii) of the Federal Legislative List and Oil and Gas Regulating Authority (OGRA) Ordinance, 2002 (the Ordinance), has been promulgated in exercise of the authority conferred by the said Item No. 2 in Para (ii) of the Federal Legislative List. Section 43 of the said Ordinance gives overriding effect to OGRA Ordinance over any other law, rule or regulation, which provides as under:--

“43. Ordinance to override other laws.--(1) The provisions of this Ordinance, the rules and the regulations, and any licences issued hereunder shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being in force, and any such law, rule or regulation shall, to the extent of any inconsistency, cease to have any effect on the commencement of this Ordinance and the Authority shall, subject to the provisions of this Ordinance, be exclusively empowered to determine the matters in its jurisdiction as set out in this Ordinance.

(2) Nothing in this ordinance, or any repeal effected thereby, shall affect or be deemed to affect anything done, action taken, proceedings commenced, directions given, instruments executed or orders, rules or regulations issued under or in pursuance of any law repealed are amended by this Ordinance and any such things, actions, proceedings, directions, instruments or orders shall if in force on the commencement of this Ordinance, continue to be in force and have effect as if the same were respectively done, taken, commenced, given executed or issued under this Ordinance.”

Similarly, the powers and functions of the Oil and Gas Regulatory Authority (the Authority) as given in Section 6 of the Ordinance include:--

“(a) ……….

(b) ………..

(c) ………..

(i) resolve complaints and other claims against licencee for contravention of the provisions of this Ordinance, rules or regulations;

(j) …………

(k) ………..

……………

(q) protect the interests of all stakeholders including consumers and the licencees in accordance with the provisions of this Ordinance and the rules;"

Section 42 of the Ordinance empowers the Authority to make regulations etc. in the following words:--

1. Power to make regulations,--(1) The Authority may, by notification in the official Gazette, make regulations, not inconsistent with the provisions of this Ordinance or the rules, for the carrying out of its functions under this Ordinance.

(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for all or any of the following matters, namely:--

(a) ………

(b) ……….

(c) ……….

(d) ……….

(e) procedure for resolving disputes amongst the licensees, consumers and licensees, and users of open access facilities;"

Pursuant to the powers conferred upon the Authority, the Complaint Resolution Procedure [For Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG)] Regulations, 2003 (the Regulations), have been made. Section 3 of the Regulations provides as under:--

"3. Nature of Complaints.--Any person may submit an application with the Registrar for --

(a) any act or thing done or omitted to be done by a licensee or dealer in violation or alleged violation of the ordinance, rules, regulations, order of the Authority or terms and condition of the license;

(b) non-compliance by the licensee or dealer with the service standards in the areas including but not limited to;

(i) billing;

(ii) connection and disconnection of service;

(iii) metering;

(iv) undue delay in providing service;

(v) safety practices; or

(vi) quantity and quality of natural gas, LPG or CNG being supplied; or

(c) discriminatory practices of the licensee or dealer."

Thus, a mechanism has been provided to the consumers of natural gas for the redressal of their grievances. The OGRA Ordinance is a federal law, whereas Punjab Consumer Protection Act, 2005, is a provincial legislation. In case where there are two enactments; one federal and other provincial, the federal enactment shall prevail. Similarly, Punjab Consumer Protection Act, 2005, is a general law catering for redressal of the grievances of consumers in general, whereas the OGRA Ordinance and Regulations framed thereunder are special law, which

cater for the grievances of the consumers of natural gas etc. It is well settled principle of interpretation that special law will prevail over the general law where both are applicable. So has been held in the case titled "I.G. of Police, Punjab, Lahore and others vs. Mushtaq Ahmad Warraich and others" (PLD 1985 SC 159). This Court has also held so in the case titled "Regional Manager, Adamjee Insurance Company Ltd. vs. Presiding Officer, District Consumer Court, Lahore and 3 others" (2012 CLD 846) in the following words:--

"6 Even otherwise under the settled principles of interpretation of statutes, the provisions of a special law on a subject excludes the application of general law to such subject as laid down in Inspector-General of Police, Punjab v. Mushtaq Ahmad Warraich (PLD 1985 SC 159). Applying the said principle and on the assumption that the remedy of the respondent policy holder is competent before the learned Consumer Court, yet such remedy is general in character in comparison to his remedy before the learned Insurance Tribunal."

1. In the light of the above discussion, in the instant case, the provisions of OGRA Ordinance and Regulations framed there-under were to apply and not the provisions of Punjab Consumer Protection Act, 2005. Thus, the jurisdiction assumed by the learned District Consumer Court, Dera Ghazi Khan in the instant matter, is without any lawful authority and the impugned order, passed by it is a nullity in the eye of law, which is hereby set aside by accepting this appeal.

(R.A.) Appeal accepted

PLJ 2015 Lahore 209[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD RAFI--Petitioner

versus

NATIONAL BANK OF PAKISTAN through its President, Karachi and 3 others--Respondents

W.P. No. 10608 of 2013, decided on 23.4.2014.

Constitution of Pakistan, 1973--

----Art. 199--General Clauses Act, 1897, S. 24-A--Constitutional petition--Dismissal from service--Payment of bogus pension vouchers by deceitful and tactful means of digit tampering--Added arrears of pension in pension vouchers--Genuine effort to reappraise evidence collected by inquiry officer in earlier inquiry proceedings--Validity--Under Section 24-A of General Clauses Act, 1897, every authority, be it executive or quasi-judicial is under an obligation to decide each and every application and representation made by a person by making a speaking order--And a speaking order pre-supposes that it would be supported by valid, cogent, plausible and tenable reasons which would stand scrutiny--Such an order must be self-contained and self-explanatory--Such a sweeping observation may be made in favour or against any person--Question is, can a major penalty of dismissal from service be imposed upon a person by disposing of his representation, by making such casual remarks. [Pp. 212 & 213] A & B

Mr. MuhammadIrfan Wyne, Advocate for Petitioner.

Mr.Mughees Aslam Malik, Advocate for Respondents.

Date of hearing: 23.4.2014.

Order

Through this writ petition, Muhammad Rail petitioner has assailed the validity of the orders dated 27.2.2013 and 27.8.2013 passed by Respondents Nos.2 & 3, whereby the petitioner was dismissed from service, and his representation cum appeal was turned down.

1. Succinctly put, the facts are that the petitioner was a Pension Payment Cashier. He was alleged to have made the payment of bogus pension vouchers by deceitful and tactful means of digit tampering. Another allegation levelled against him was that he added two or three months' arrears of pension in the pension vouchers of the pensioners. His acts allegedly caused a loss of Rs. 1.921 million to National Bank of Pakistan. It was ascribed to the petitioner that he misappropriated this amount in connivance with the outsiders. Be that as it may, the service of the petitioner was terminated, obliging him to approach the Federal Service Tribunal, Lahore, which ordered the reinstatement of the petitioner vide order dated 31.3.2001. An appeal filed by National Bank of Pakistan before the Hon’ble Supreme Court of Pakistan was dismissedvide order dated 25.10.2001. A review petition filed by the respondents was also dismissed by the apex Court by the order dated 30.10.2003. Apparently, the respondents showed their reluctance and offered resistance to the implementing of the order of the Federal Service Tribunal, as upheld by the August Supreme Court of Pakistan. Therefore, the petitioner had to file W.P. No. 10244-2001 seeking to implement the aforesaid judgments/orders passed in his favour. Initially, NBP, the respondent disbursed some amount to the petitioner by way of back benefits, but after sometime, the respondents called upon the petitioner to return that amount paid to him. Since the petitioner has also filed W.Ps No. 8649 and 9089 of 2009, which are sub judice and relate to the implementation of the above-mentioned orders passed by the Service Tribunal and the apex Court, I would refrain myself from delving into the subject any further, especially when the petitioner has also filed Criminal Original No. 1062-2011, which is also pending decision before this Court.

2. Against the above backdrop, the petitioner was charge sheeted in 2010. An inquiry was held and in consequence whereof, the petitioner was dismissed from service. Once again, he filed W.P.No. 2658-2013. It was allowed by this Court by the order dated 22.5.2013. The matter was remitted to the Divisional Head, P & IRD, National Bank of Pakistan, I.I. Chundrigarh Road, Karachi, Respondent No. 2 who was required to pass a fresh speaking order within thirty days, after affording an opportunity of hearing to the petitioner herein. The respondents claimed to have complied with the order dated 22.5.2013 passed by this Court in W.P.No. 2658-2013. It is another matter that they upheld their earlier order of dismissal passed against the petitioner, which had forced him to file W.P.No. 2658-2013. The latter order of dismissal dated 27.8.2013 is the subject matter of the instant writ petition.

3. In support of the writ petition, learned counsel for the petitioner has forcefully argued that Respondents Nos.2 & 3 did not follow the order of this Court dated 22.5.2013 passed in W.P.No. 2658-2013 in letter and spirit. According to him, the fresh exercise undertaken by them was just an eyewash in that they did not make any genuine effort to reappraise the evidence collected by the Inquiry Officer in the earlier inquiry proceedings nor did the respondents take into consideration the material produced by the petitioner, which went a long way to bear out the innocence of the petitioner. He elaborated that had the relevant facts and circumstances been taken into account, they would have resulted in exonerating the petitioner from the liability pinned on him. At any rate, he submitted that there was no evidence that the petitioner defalcated, pocketed and misappropriated the amount of Rs. 1.921 million. He strenuously argued that neither the inquiry officer nor the appellate authority examined the single person who was alleged to be in league with the petitioner in stashing away the amount in question. He postulated that the petitioner was befooled in the name of an inquiry; otherwise, it was a pre-determined case on the part of the respondents. They had made up their mind to get rid of the petitioner, who had got better of them in the litigation carried out by him with the respondents. The learned counsel for the petitioner laid a great deal of emphasis on the fact that in disregard of the order dated 22.5.2013 passed by this Court in W.p.No. 2658-2013, no speaking order duly supported by valid and cogent reasons was passed by Respondents Nos.2 & 3. He wondered at the purpose in sending the case of the petitioner back to the respondents for decision afresh. In conclusion, it was vehemently urged by him that the impugned order fell far short of the requirements laid down in Section 24-A of the General Clauses Act, 1897.

4. Learned counsel for the respondents has controverted the arguments made by the learned counsel for the petitioner. He supported the impugned order dated 27.8.2013. He drew the attention of the Court to the following conclusion arrived at by the appellate authority:

"After hearing you at length in respect of each charge levelled against you and thorough examination of documents/evidence annexed with the enquiry proceedings/report, we understand that you could not give any plausible explanation to the charges. As already mentioned above, you have admitted your criminal involvement in the subject fraud in your hand written statement given to the then Operations Manager of the Branch, duly witnessed by two staff members, expressively admitting/confessing misappropriation of Rs. 2.000(M) in Pension payment account. You also owned the liability of the wrongful/fraudulent pension payments by way of repaying the same to the credit of branch sundry deposit account. Complete detail of the payment and dates provided in the enquiry report are annexed herewith for your ready reference. The inquiry officer held you guilty of the charges. You failed to prove your non involvement in the subject Fraud/embezzlement during the inquiry as well as during the personal hearing."

1. I have heard the learned counsel for the petitioner and the respondents, besides perusing the record.

2. Since I am remitting the matter again to Respondent No. 2 for decision afresh, I would refrain from touching upon the merits of the case or dilating upon the submissions made by the learned counsel for the petitioner. However, I cannot help observing that the respondents failed to comprehend true import of the order dated 22.5.2013 passed by this Court in W.P. No. 2658-2013. It goes without saying that under Section 24-A of the General Clauses Act, 1897, every authority, be it executive or quasi-judicial is under an obligation to decide each and every application and representation made by a person

by making a speaking order. And a speaking order pre-supposes that it would be supported by valid, cogent, plausible and tenable reasons which would stand scrutiny. Such an order must be self-contained and self-explanatory. It is pointed out with a heavy heart that a perusal of the impugned order dated 27.8.2013 falls far short of these requirements. It has been taken for granted and assumed that the petitioner failed to give any explanation to the charges made against him. Such a sweeping observation may be made in favour or against any person. The question is, can a major penalty of dismissal from service be imposed upon a person by disposing of his representation, by making such casual remarks. It bears repeating that if Respondents Nos.2 & 3 were to adopt such a broad-brush approach to get round the order dated 22.5.2013, what object, if any, was achieved by the aforesaid order. It goes without saying that this Court would not countenance the defying of its orders by the sophistry deployed by anybody.

1. In view of the above, this petition is allowed declaring the order dated 27.8.2013 passed by the respondents to be illegal, unwarranted, without lawful authority and of no legal effect. Consequently, the representation made by the petitioner shall be deemed to be pending adjudication before the Divisional Head, P & IRD, National Bank of Pakistan, I.I. Chundarigarh Road, Karachi, who shall hear out the petitioner, besides bringing on record all the material produced by him in his defence. Only thereafter shall he pass a fresh, detailed order by assigning valid, cogent and tenable reasons in support thereof. The matter shall not be put in cold storage and shall be decided, preferably within two months from, the receipt of the certified copy of this order.

(R.A.) Petition allowed

PLJ 2015 Lahore 213 [Multan Bench Multan]

Present: Arshad Mahmood Tabassum, J.

Mst. FIRDOUS AKHTAR and another--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 2 others--Respondents

W.P. No. 3139 of 2009, heard on 7.5.2014.

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

----S. 148 & O. VII, R. 11(b)(c)--Constitution of Pakistan, 1973--Art. 199--Rent Restriction Ordinance, 1959--S. 13--Ejectment petition--Requisite Court fee was not fixed on memo of appeal--No time could be granted to make up deficiency in Court fee--Being rent appeal no Court fee was lievable--Application was dismissed on account of deficiency in Court fee--Validity--Where legal provision regarding levy of Court-fee is clear and conduct of party is contumacious then it would not be entitled to exercise of a discretion in its favour under Section 149 r/w Section 148 and Order VII Rule 11(b), CPC, but where question of affixation of Court-fee is somewhat doubtful then Court would calculate exact amount of Court-fee leviable on plaint or memo of appeal and then to grant an opportunity to party to make up deficiency--No Court-fee was liable to be affixed on memo of appeal, hence, when First Appellate Court came to conclusion that a certain amount of Court-fee was leviable then it should have afforded at least one opportunity to petitioners to affix Court-fee on memo of appeal, and in event of failure to do so appeal could have been dismissed on that account, but straightaway dismissal of appeal appears to be a harsh treatment.

[Pp. 218 & 219] A & B

Rent Restriction Ordinance, 1959--

----S. 13--Civil Procedure Code, (V of 1908), S. 148 & O. VII, R.11 (b)(c)--Requisite Court fee was not affixed on memo of appeal--Being a rent appeal no Court fee was leviable--Levy of Court fee in rent matter is quite different from other appeal arising out of money decree--Ad-velorem Court-fee is payable according to value of suit or in case of appeal according to decretal amount as case may be if it exceeds Rs. 25,000/-, at rate of 7.5 per cent but formula for affixation of Court fee on rent appeals is somewhat different and one can also be mislead by fact that an ejectment petition requires affixation of a fixed Court fee of Rs. 15/-, whereas, appeal against order passed by Rent Controller requires affixation of Court-fee on basis of annual rental value of demised premises--No contumacy or stubborn attitude has been noticed on part of petitioners, who appear to have claimed under a bonafide mistake that no Court-fee was leviable. [P. 219] C & D

Malik Waqar Haider Awan, Advocate for Petitioners.

Ch. MuhammadHafeez Ahmad, Advocate for Respondent No. 3.

Date of hearing: 7.5.2014.

Judgment

Respondent No. 3, namely, Mst. Nasreen Kausar on 8.12.2001, instituted an application for ejectment against the petitioners, under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The petitioners contested the said application, denying the relationship of land-lord and tenant and on certain other grounds. However, the learned Rent Controller, after putting the parties to trial and recording their pro and contra evidence, allowed the application for ejectment vide order dated 17.7.2008. The petitioners preferred an appeal against the said order on 22.7.2008, in the Court of learned district Judge Sahiwal. During the pendency of the appeal, an application dated 31.10.2008, was submitted by the respondent-landlady, averring therein that the requisite Court-fee had not been affixed on the memo of appeal, hence, the same was liable to be dismissed and that even at that stage if the Court fee was affixed, the appeal having become barred by time, merit dismissal, hence, no time could be granted to the appellants-petitioners to make up the deficiency in the Court-fee. The said application was also resisted by the present petitioners by maintaining that it being a rent appeal no Court-fee was leviable and that at the most a fixed Court-fee of Rs. 15/- was payable which the petitioners-appellants were ready to affix as per order of the Court.

1. The learned Additional District Judge, sized of the matter, videjudgment dated 10-4-2009, accepted the said application and dismissed the appeal with the following observations:--

"The impugned order of the Rent Controller/Tribunal shows that he ordered that the petitioner-landlady shall be entitled to the ejectment of the respondents/appellants from the disputed house as well as for the arrears at the rate of Rs. 4000/- per month for a period of six months before the filing of the ejectment petition till the eviction of the disputed house within two months, i.e. 60 days. Under the law appellant has to affix the Court-fee on the amount at the rate of Rs. 4000/- per month for the last one year but despite objection raised by the other side the appellant is not caring to make up the deficiency or to make request for extension of time for making good deficiency of the Court fee. It is swell settled that an appeal which is insufficiently stamped is no appeal in the eye of law and the Court has no jurisdiction to accept an improperly constituted appeal. Obviously, the appellant has refused to affix the Court fee. In these circumstances, the application filed by the landlady is accepted and the instant appeal is hereby dismissed due to non deposit of the Court fee."

1. It is in this background that the petitioners, through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, have called in question judgment dated 10-4-2009, passed by the learned ADJ, Sahiwal.

2. Learned counsel while relying upon the case titled "Atta Muhammad vs. Abdul Aziz and others" (1988 SCMR 759) has argued that the learned ADJ has illegally dismissed the appeal without affording an opportunity to the petitioners-appellants to make up the deficiency in the Court-fee after calculating the same and that at least one opportunity should have been given to them to make the deficiency, as such, the impugned judgment is violative of the law laid down by the apex Court, hence, liable to be set aside.

3. Conversely, the learned counsel for the Respondent No. 3 has argued that the conduct of the petitioners-appellants was contumacious, in that oh submission of application by the respondent-landlady for dismissal of the appeal on account of deficiency in the Court-fee, the petitioners-appellants contested the same by maintaining that no Court fee was required to be affixed on the memo of the appeal and that by that time even the appeal had become barred by limitation, hence, there was no occasion nor justification for the learned ADJ to provide an opportunity to the petitioners to make up the deficiency in the payment of Court-fee. He has relied upon the case titled "Assistant Commissioner and Land Acquisition Collector, Badin vs. Haji Abdul Shakoor and others" (1997 SCMR 919).

4. I have heard the learned counsel for the parties and perused the case law cited at the bar.

5. In the precedent referred to and relied upon by the learned counsel for the Respondent No. 3 (1997 SCMR 919) the apex Court has ruled as under:--

"In the present case, the petitioner had filed first appeal against a money decree. There does not exist any doubt as to the question of payment of Court-fee, as it is to be paid ad valorem on the decretal amount. But the petitioner, in spite of the above clear legal position, opted to file the appeal with Rs. 10 Court-fee. Even after the objection was raised by Respondents Nos. 1 and 2, the petitioner in the above quoted Para 7 of the rejoinder, took the plea that no Court-fee was payable though after the expiry of more than one month, he paid the deficit Court-fee as a measure of abundant caution. In our view, the learned Judge in Chamber was justified in concluding that the petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend the time. We do not find any infirmity in the impugned judgment. Leave is, accordingly, refused."

Whereas, in the precedent relied upon by the learned counsel for the petitioner (1988 SCMR 759) it was observed as under:--

"The fact remains that this appeal of the appellant which was filed before the District Judge in January, 1985 was entertained and proceedings were undertaken on it till 29.5.1986 when it came up for adjudication on exemption from Court-fee which was adjudicated upon and the exemption claimed from Court-fee was denied to the appellant. In such a situation not only the exact Court fee payable was required to be determined and the appellant informed but reasonable time should have been allowed to make it up. The language of the law indeed gives the impression that it is discretionary with the Presiding Officer or the Judge to allow such time or not. The entire philosophy of the Court Fees law has been examined by this Court in the case of Siddique and it is clear that the provisions are not to be used as penalty in the first instance but are directed to regulate the proceedings and not to thwart the adjudication or to non-suit a party on account of the purely fiscal provision attached to the procedure."

While going through the judgment rendered in the precedent (1997 SCMR 919) I have noticed that the apex Court has also referred to the case titled "Siddique Khan vs. Abdul Shakur Khan" (PLD 1984 SC 289) and reproduced therein the following paragraph of the said judgment:--

"The combined effect of the rule laid down by this Court in the case of Muhammad Nawaz Khan and Shah Nawaz would thus be that in cases of deficient Court-fee which would include in the context of now amended law, certain exemption in this behalf, the Court on discovery of an omission, error in valuation of deficiency in Court-fee, shall acting under Order VII, Rule 11 (b) and (c) allow time to the plaintiff to make correction and supply the deficiency. If he does so then the plaint shall be deemed to have been validly filed on the date of the original presentation notwithstanding the fact that the Court fee was supplied after the expiry of the period of limitation. If, however, the plaintiff is guilty of contumacy which terms would be separately explained hereinafter and/or commits positive act of mala fides the plaintiff could be held disentitled to further exercise of discretion under Section 149 read with Section 148, CPC."

In the said precedent (PLD 1984 SC 289), the apex Court has also clarified that the provisions of Order VII, Rule 11 (b) and (c) apply to plaints as also to memoranda of appeals. The relevant portion reads as under:--

"There is another aspect of the matter. The application of order VII, Rule 11 (b) (c) to appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it is applied then as would be presently shown it might not be possible to reject a memorandum of appeal on ground of deficiency of Court-fee unless in accordance therewith an opportunity is provided, to supply the required Court-fee. It is also conducive for a purpose amongst others, for which Order VII, Rule 11 (b) and (c) were enacted namely collection of State revenue in so far as appeal stage of the Court process is concerned. As would be presently shown, it is obligatory under Order VII, Rule 11 (c) to afford one opportunity to supply the deficiency in Court-fee, before rejection of the plaint under the said provision. If as is discussed above there are two interpretations of Section 107(2) (when read with Order VII, Rule 11 (c) and Order XLI, Rule 3) then the one favouring the saving of the appeal proceedings from rejection on ground connected with collection of public revenue by affording the said opportunity, would have to be adopted. Thus the age old conflict on this fiscal-cum-procedural question is resolved in favour of the subject (the appellants). The result is that Order VII, Rule 11 (b) and (c) applies to plaints as also to memoranda of appeals."

1. Having respectfully gone through the above case law, it is observed that a distinction has been drawn that where the legal provision regarding levy of Court-fee is clear and the conduct of the party concerned is contumacious then it would not be entitled to exercise of a discretion in its favour under Section 149 read with Section 148 and Order VII Rule 11(b)(c), CPC, but where the question of affixation of Court-fee is somewhat doubtful then the Court should calculate the exact amount of Court-fee leviable on the plaint or memo of appeal and then to grant an opportunity to the party concerned to make up the deficiency.

2. In the instant case, the appeal filed by the petitioners was entertained by the office of the learned District Judge Sahiwal, without any objection and the same remained pending for quite some time, whereafter an application for dismissal of the appeal was filed on the ground of deficiency of Court-fee. The said application was contested by he petitioners and it cannot be ruled out that they contested the same under bona fide mistaken belief that no Court-fee was liable to be affixed on the memo of appeal, hence, when the learned first appellate Court came to the conclusion that a certain amount of Court-fee was leviable then it should have afforded at least one opportunity to the petitioners to affix the Court-fee on the memo of appeal, and in the event of failure to do so the appeal could have been dismissed on that account, but straightaway dismissal of appeal appears to be a harsh treatment.

3. Moreso, in view of the fact that formula for levy of Court-fee in the rent matters is quite different from other appeals arising out of money decrees. In cases involving money disputes it is commonly known that the ad-velorem Court-fee is payable according to the value of the suit or in case of appeal according to the decretal amount as the case may be if it exceeds Rs. 25,000/-, at the rate of 7.5 per cent but the formula for affixation of Court fee on rent appeals is somewhat different and one can also be mislead by the fact that an ejectment petition requires affixation of a fixed Court fee of Rs. 15/-, whereas, the appeal against the order passed by the Rent Controller requires affixation of Court-fee on the basis of annual rental value of the demised premises.

4. In the light of the above discussion and while respectfully relying upon the case law referred to by the learned counsel for both the parties, it is observed that the learned ADJ was not within his right to straightaway dismiss the appeal without first affording an opportunity to the petitioners-appellants to make up the deficiency in the Court-fee by affixing the same on the memo of appeal. It is also observed that no contumacy or stubborn attitude has been noticed on the part of the petitioners, who appear to have claimed under a bonafide mistake that no Court-fee was leviable.

5. Resultantly, this petition succeeds and the same is allowed. The impugned judgment is, therefore, set aside by holding the same to have been passed without any lawful authority. Consequently, the appeal of the petitioners shall be deemed to be pending before the learned ADJ Sahiwal, who shall afford an opportunity to the petitioners to affix the requisite Court-fee on the memo of appeal and then shall decide the same on merits after hearing both the parties.

6. Petition allowed.

(R.A.) Petition allowed

PLJ 2015 Lahore 220[Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

MUHAMMAD RAMZAN and another--Petitioners

versus

STATE and 4 others--Respondents

W.P. No. 8591 of 2009, decided on 6.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 392--Criminal Procedure Code, (V of 1898), S. 561--Constitutional petition--Discharge of accused--Challenge to--Revision petition was accepted--Assailed--Revision was not competent against discharge order--Discharge order was merely administrative executive order regarding custody of accused--Validity--An order of discharge only means that physical custody of such an accused is not further required for purpose of investigation at present stage--It by no stretch of imagination, can be construed to be an order regarding cancellation of criminal case or termination of prosecution--Such an order of discharge can always be recalled by magistrate whenever, subsequently physical custody is required for proper investigation--Discharged accused person can subsequently be summoned by trial Court to face a trial--Police was quite justified in seeking discharge of accused and magistrate was also amply justified in passing order, therefore, no occasion has been found by High Court for interference in said order passed by pagistrate.

[Pp. 221 & 222] A, B & C

Mr. AhmadRaza, Advocate for Petitioners.

Date of hearing: 6.5.2014.

Order

Brief facts of the instant petition are that on the application of Muhammad Ashraf son of Muhammad Siddique case F.I.R. No. 91 dated 07.04.2009 was registered against the petitioners at Police Station Kameer, District Sahiwal, under Section 392 P.P.C. Thereafter, investigation officer after concluding the investigation recommended the discharge of accused persons from the aforementioned F.I.R The learned Magistrate Section 30, Sahiwal acceding with the request made by the I.O. had passed well reasoned order dated 05.05.2009 while discharging the accused from the case.

1. Muhammad Ashraf, complainant of the case, being aggrieved of the order dated 05.05.2009 filed a revision petition which was accepted on 19.06.2009 by learned Addl. Sessions Judge, Sahiwal in the following terms:--

"The petitioner/complainant, who is present in the Court has stated that he never submitted affidavit to the police regarding innocence of accused. Accused have committed his dacoity and police in connivance with the accused have found them innocent and fraudulently got them discharged from the learned Judicial Magistrate, There is no affidavit of the complainant and in the light of the contentions of the learned counsel for the petitioner/complainant it is sufficient to hold that I.O. with connivance of the accused have found them innocent on the basis of the alleged affidavit of the complainant. The learned Judicial magistrate was duty bound to ask for production of original affidavit or to summon the deponent regarding its truthness but only depending on the report of the police learned judicial Magistrate discharged the accused, who has been named by the complainant in his petition for lodging FIR. In these circumstances impugned order dated 05.5.2009 passed by the learned Judicial Magistrate P.S Kameer, Sahiwal is set aside and the revision petition is accepted and record of challan be sent to learned Judicial Magistrate P.S. Kameer, who is directed to proceed further in their matter strictly in accordance with law."

Hence, through this Constitutional Petition under Article 199 of the Islamic Republic of Pakistan read with 561 Cr.P.C. petitioner has assailed the order passed by the learned Addl. Sessions Judge and has sought quashing of the case.

1. Heard. Record perused.

2. Contention made by the learned counsel for the petitioner that learned Addl. Sessions Judge had acted beyond the mandate of law as the revision petition was not competent against the discharge order passed by the learned Magistrate, carries weight as an order of discharge is merely an administrative executive order regarding custody of an accused person.

3. No restraint whatsoever has been placed on the authority of the Investigating Officer, who is authorized to make an independent, impartial and transparent investigation which should be given due weight unless some malafide or dishonesty is alleged.

4. An order of discharge only means that physical custody of such an accused is not further required for the purpose of investigation at present stage. It, by no stretch of imagination, can be construed to

be an order regarding cancellation of criminal case or termination of prosecution.

1. Such an order of discharge can always be recalled by the Magistrate whenever, subsequently physical custody is required for proper investigation. Even a discharge accused person can subsequently be summoned by the trial Court to face a trial.

2. The order passed by the learned Magistrate. Sahiwal is a reasoned order and I have found no perversity of reasoning of illegality of approach therein. In view of the fact that the aggrieved persons had produced affidavits in support of the conclusion of the police and the same were not rebutted by the complainant's counsel. Therefore, it appears that the police was quite justified in seeking discharge of the accused/petitioners and learned Magistrate was also amply justified in passing the order dated 05.05.2009, therefore, no occasion has been found by this Court for interference in the said order dated 05.05.2009 passed by the learned Magistrate Section 30, Sahiwal.

3. Before parting with this Order, in view of the observation made above, the order passed by the learned Addl. Sessions Judge, is set aside as revision petition was not competent.

(R.A.) Petition dismissed

PLJ 2015 Lahore 222

Present: FaisalZaman Khan, J.

MUHAMMAD HANIF--Petitioner

versus

MUHAMMAD ALI and 3 others--Respondents

W.P. No. 19464 of 2009, decided on 8.7.2014.

Land Revenue Rules, 1968--

----Rr. 18(2) & 22--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment as lamberdar--Absentee from village for last 14/15 years--Disentitled to retain post of lamberdar--Absence from estate is a ground for dismissal of lamberdar--Maintainability of petition--Lumberdar whose duties have been defined in Rule 22 of Rules, 1968 remain absent from village for a considerable period of time and still retain said post--Duties are carved in such a manner that his presence in village everyday is a sine qua non for his retaining said post, therefore, it is held that absence is one of grounds for dismissal of a lumberdar--High Court shall not sit as a Court of appeal in cases where revenue hierarchy has decided up to Board of Revenue--Neither any application was requisitioned nor any publicity was made, because of which that could be ascertained that proper procedure was followed and after due consideration, appointment of petitioner as lumberdar was made--Procedure provided, for appointment of lumberdar starts from invitation of application from candidates who fulfill requirements of Rule 17 of Rules, 1968, thereafter matter is scrutinized at level of Tehsildar/A.C., whereafter same is sent to DOR/D.C. who is competent authority for appointment of a lumberdar--Procedure for appointment of lumberdar has deliberately been by passed in order to accommodate petitioner--Non-following of procedure in appointment of petitioner as lumberdar is a serious lacuna, which on face of it lacks transparency and thus can very well be looked into by High Court in constitutional jurisdiction--Petitioner has been appointed "Permanent lumberdar", which was beyond mandate of revenue functionary. [Pp. 226, 227, 228 & 229] A, B, C, D & E

1996 SCMR 1581, 2013 SCMR 363, 2013 SCMR 1595, 2008 SCMR 1586, PLD 1991 SC 531, rel.

Malik Ghulam Siddique Awan, Advocate for Petitioner.

Ch.Azhar Siddique Cheema, Advocate for Respondent No. 1.

Mr. Muhammad Iftikhar-ur-Rashid, AAG for Respondents Nos. 2.to 4.

Date of hearing: 8.07.2014

Order

Case unfolded through the present petition is that after the demise of Qadir Bakhsh, father of Muhammad Ali, Respondent No. 1, who was a Lumberdar of Village Tibbi Mehtab Singh, Tehsil Chunian, District Kasur, Respondent No. 1 was appointed as permanent Lumberdar in 1986. Petitioner on 12.4.2006 moved an application before Tehsildar, Chunian District Kasur that Respondent No. 1 is an absentee from the village for the last 14/15 years and, therefore, he is not entitled to retain the post of Lumberdar. He also made a prayer in the said application that he may be appointed, as Lumberdar in place of Respondent No. 1.

1. Thereupon, reports were requisitioned from the revenue, functionaries, whereafter, vide order dated 05.7.2006 District Officer (Revenue)/District Collector, Kasur (DOR), after hearing the parties and on the acknowledgement of Respondent No. 1 that he is residing in Kanganpur due to education of his children and his name is also reflected in the voter list of the said area, held that he is not entitled to retain the post of Lumberdar. Thereafter, vide order dated 22.7.2006 petitioner was appointed as Lumberdar of said village. Feeling aggrieved, Respondent No. 1 approached Executive District Officer (Revenue), Kasur through an appeal, which was accepted vide order dated 18.3.2008 and the order passed by the DOR dismissing Respondent No. 1 was set aside. Aggrieved of this order, petitioner approached Board of Revenue through a revision petition, which also met the-same fate and was dismissed; hence this petition.

2. Learned counsel for the petitioner contends that his total case rests on the fact that Respondent No. 1 has shifted his residence from the village, of which he was appointed as Lumberdar, therefore, he is not entitled to retain the said post. He further avers that during the course of hearing before the DOR, Respondent No. 1 himself admitted that he has shifted his residence to Kanganpur and his name is also reflected in the Electoral Roll of the said area. He has drawn my attention to a certificate issued by Nazim of the area, which certifies that the said respondent is residing in Kanganpur. He has also alleged that the land, which was owned by Respondent No. 1 in the village, has been leased out to a tenant, who has been receiving land revenue in place of Respondent No. 1. In order to support his arguments, he has relied on Muhammad Yousaf v. Member Board of Revenue and 4 others (PLJ 1996 SC 1288).

3. Conversely, learned counsel for Respondent No. 1 has argued that both the Courts below have rightly decided in his favour after considering all necessary material. He has also argued that there is no complaint against him regarding absence, because of which further proceedings could have been initiated against him. He further argues that under Rule 18 of the West Pakistan Land Revenue. Rules, 1968, absence of a Lumberdar from the village is not a ground for cancelling the appointment of a person as a Lumberdar. In the end, he argues that in cases of appointment of Lumberdar, High Court shall desist from exercising its extraordinary jurisdiction in such like cases. He relies on Abdul Wahid v. The Member Board of Revenue, Punjab, Lahore and another [1971 SCMR 719], Muhammad Warrayam v. Member Board of Revenue, Punjab, Lahore and 3 others [1972 SCMR 354], Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another [1982 SCMR 202], Sharaf Din v. Qazi Abdul Jalil and another [1986 SCMR 1368], Muhammad Ramzan v. Member (Revenue), Board of Revenue and others [1989 SCMR 614], Sardar Muhammad v. Muhammad Hafiz and another [1989 SCMR 1941(1)], Shaukat Ali and another v. Muhammad Shafi and 2 others [1991 SCMR 1504], Muhammad Rafique v. Nazir Ahmed and others [2007 SCMR 287] and Haji Muhammad Zaman Khan v. Member BOR Punjab, Lahore and others [2013 SCMR 1595].

4. Learned Law Officer adopts the arguments advanced by learned counsel for Respondent No. 1.

5. I have heard the learned counsel for the parties and have gone through the available record.

6. The only allegation raised against Respondent No. 1 was that for the last 14/15 years, he is an absentee from the village, therefore, he is disentitled to hold the post of Lumberdar. Upon this allegation, reports were sought and after hearing both the parties and in view of admission made by him before the DOR that he is residing in Kanganpur because of education of his children and his name also appears in the voter list of the said area, because of which DOR decided in favour of the petitioner. The Executive District Officer (Revenue), Kasur (EDO) while reversing the finding of DOR has not considered the evidence led before the DOR or the stance taken by Respondent No. 1. The finding rendered by the EDO reflect that he is not impressed with the single factor (absence from the village) to be sufficient for cancelling the appointment of Respondent No. 1. He has rendered a finding to the effect that Respondent No. 1 is not an absentee. In this regard, he has placed reliance on record of rights in favour of Respondent No. 1 and the voter list of Village Tibbi Mehtab Singh, Tehsil Chunian. He has not considered the effect of lease of land owned by Respondent No. 1 to a tenant and incorporation of the name of the said respondent in the voter list of Kanganpur. I am of the view that in case EDO was to render a finding about residence of Respondent No. 1 in a particular area, he had to consider all the necessary documents, which he failed to do so. The effect of documents produced by petitioner and the admission made by Respondent No. 1 has not been seen.

7. Similarly, the Member Board of Revenue has brushed aside the order passed by the District Collector to be sketchy and non-speaking. He has further observed that as a finding has been given by the EDO on the basis of documentary evidence that Respondent No. 1 is the permanent resident of the village, therefore, revision is not maintainable. As mentioned above, he has not considered the allegation and evidence provided thereupon by the petitioner, which he needed to consider and distinguish. He in a cursory manner has dilated upon the fact that once the appointment of Respondent No. 1 was cancelled, no fresh applications were summoned or publicity made for appointment of new Lumberdar but has not rendered a finding to that effect. Both the Courts below at least should have given reasons for accepting the stance of Respondent No. 1, which they in a sketchy manner relied upon.

8. As regards the objection raised by learned counsel for Respondent No. 1 as well as the learned Law Officer that absence is not one of the valid grounds for dismissal of a Lumberdar. The provision of Rule .18(2) of the West Pakistan Land Revenue Rules, 1968 clearly show that absence from the estate is one of the grounds for dismissal of a Lumberdar. For convenience, the said provision is reproduced below:

"18(2) A headman may be dismissed when--

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

(b) -----------------------------------

(c) Owing to age or physical or mental incapacity, or absence from the estate, he is unable to discharge his duties; or

(d) -----------------------------------

(e) -----------------------------------

(f) -----------------------------------

(g) -----------------------------------

(Underlining is mine)

1. From the above provision, it is clear that absence from estate is a ground for dismissal of a Lumberdar. In this regard, reliance can also be placed on a judgment reported as Muhammad Yousaf v. Member, Board of Revenue and 4 others [1996 SCMR 1581]. Even otherwise, this does not appeal to reason that a Lumberdar whose duties have been defined in Rule 22 of the Rules ibid remain absent from the village for a considerable period of time and still retain the said post. The duties are carved in such a manner that his presence in the village everyday is a sine qua non for his retaining the said post, therefore, it is held that absence is one of the grounds for dismissal of a Lumberdar.

2. As regards maintainability of the writ petition in cases of appointment of Lumberdar, I have gone through the judgments cited by learned counsel for Respondent No. 1. Although the consensus of all the judgments is on the fact that High Court shall not sit as a Court of appeal in cases where the revenue hierarchy has decided up to the Board of Revenue, however, I am guided by a latest judgment passed by the Hon'ble Supreme Court of Pakistan reported as M. Nazir Ahmad v. Muhammad Aslam and others [2013 SCMR 363], in which it has been held that although High Court shall not sit as a Court of appeal in cases of Lumberdar yet has not denied interference of this Court in cases where the order is against law, perverse, arbitrary, capricious, illogical and against the record. For convenience, the operative part of the said judgment is reproduced below:

"It may be pertinent to mention here that the learned High Court while considering the cases about the appointment of Lumberdars is not supposed to sit as a Court of appeal but only has to examine, if there is any jurisdictional error, in the orders passed by the revenue hierarchy and whether such orders are patently against the express provisions of law or the law laid down by the superior Courts and/or are perverse, arbitrary, capricious, illogical and against the record. But the order passed in review by the Board in this case does not fall within the above category and, thus, should have not been interfered by the learned High Court".

The judgment cited by learned counsel for the petitioner reported as Haji Muhammad Zaman Khan v. Member BOR Punjab, Lahore and others [2013 SCMR 1595] has also discussed the jurisdiction of this Court vis-a-vis appointment of Lumberdar and has also not abridged the interference of this Court in certain cases. They have set clown the parameters that in case the orders passed by the departmental functionaries were not in accordance with law or the case is of no evidence or the authority has acted in bad faith and is not following the prescribed procedure, then a writ can be maintained. For convenience, operative paragraph is reproduced below:

"There is no cavil to the proposition that the learned High Court in its Constitutional jurisdiction can interfere with the order passed by a Tribunal of competent jurisdiction. However, the said exercise has to be confined to examine whether the order passed was in accordance with law; whether it was a case of no evidence; whether the authority acted in bad faith or there was failure to follow the procedure prescribed in law”.

The Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Saeed v. Ghulam Sarwar and another [2008 SCMR 1586] has held that any error on part of Board of Revenue in understanding law or application of the same in a wrong manner can be corrected by this Court in constitutional jurisdiction. In the same judgment ratio of Haji Noorwar Jan v. Senior Member Board of Revenue, N.W.F.P, Peshawar and 4 others [PLD 1991 S.C. 531], has been discussed which is reproduced hereunder:

"The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law."

1. In view of the fact that both the Courts below have not considered the case put forth by the petitioner placing the evidence produced by him in juxtaposition with the one produced by Respondent No. 1, is an error on their part in applying the law and therefore, the findings rendered by them are not sustainable.

2. Another aspect, which has not been considered by the Courts below although was touched by the Member Board of Revenue, was the appointment of the petitioner as Lumberdar in place of Respondent No. 1 without any advertisement or publicity. I have gone through the order passed by the DOR/District Collector on 22.7.2006, through which petitioner has been appointed as Lumberdar of the village. It is strange to note that neither any application was requisitioned nor any publicity was made, because of which this could be ascertained that proper procedure was followed and after due consideration, appointment of the petitioner as Lumberdar was made. The procedure provided, for appointment of Lumberdar starts from invitation of application from the candidates who fulfill requirements of Rule 17 of the Rules ibid, thereafter the matter is scrutinized at the level of Tehsildar/Assistant Commissioner, whereafter the same is sent to DOR/District Collector who is the competent authority for appointment of a Lumberdar. The order, through which the petitioner has been appointed, is a clear index to the fact that the procedure for appointment of Lumberdar has deliberately been bypassed in order to accommodate the petitioner. Non-following of the procedure in appointment of petitioner as Lumberdar is a serious lacuna, which on the face of it lacks transparency and thus can very well be looked into by this Court in constitutional jurisdiction. It shall not be out of place to mention here that the competent authority (DOR/District Collector) under Rule 21 of the rules ibid has the power to appoint an "Officiating Lumberdar" in place of an absentee, however, the order passed by DOR/District Collector on 22.7.2006 appointing petitioner as Lumberdar clearly signifies that the petitioner has been appointed "Permanent Lumberdar", which was beyond the mandate of the Revenue functionary.

3. The Honourable Supreme Court of Pakistan while considering the mandate and working of the post of a Lumberdar in judgment reported as M. Nazir Ahmad v. Muhammad Aslam and others [2013 SCMR 363] has held as follows:-

“---------------- As per the settled law, Lambardari is an administrative post of its own kind, which has the colour and tinge of any honorary post and assignment, in any case it is neither in the nature of government service nor a profession or any avocation having any nexus to an office of profit such a drawing salary etc. from the government exchequer (Note: may be some monetary benefits etc. can be said to be attained by the Lambardar directly or indirectly by virtue of his office), it is also not a vested right of a person to be appointed as a Lambardar, rather the revenue authorities, for the purposes of assigning certain responsibilities to a person in the Chak, make a selection as per the criteria set out in Rule 17 of the Land Revenue Rules and to find the most suitable candidate for the job who could capably discharge the duties inter alia in, terms of Rule 22 of the rules ibid. As the entire effort of the Revenue Authorities in this behalf should be to find out and locate the most suitable person for the job, because no one, as mentioned above, has a vested right to the appointment, rather a Lambardar is saddled with certain responsibilities in connection with the collection of the land revenue, Abiana and other government dues etc. therefore, for choosing the best, available person, on whom trust, can be reposed, the condition and requirement of qualifications in strict terms, which may otherwise be adhered to in some other kinds of recruitments in the government service etc. especially in relation to and by a given and a specific date meant for applying for such posts/appointments, should, not be strictly followed in the Lambaridari matter. It may be pertinent to mention here that the relevance and the importance of the date for applying to the post (Lambardari) is primarily meant to ascertain as to who are the persons interested in the job, so that they should come forward and apply for the same by a given date. Thus, the revenue authorities who has to make the appointment should have the fair idea of pool (of persons) from whom they should select the most suitable. Therefore, if an applicant who does not cross a threshold of qualification or if there is an impediment in his way for the appointment on the date of

application, has applied in time, but while the matter is being processed and scrutinized and before the final decision is taken by the first revenue forum, such applicant either crosses the threshold or removes the hurdle in his way, such person notwithstanding the ineligibility on the date of application should be considered by the revenue authorities for the assignment Because the object, as mentioned earlier, is to appoint a person to perform the duties of a Lambardar, who is the best and suitable man for the job-------------------“.

1. For what has been discussed above, this petition is accept, orders passed by District Officer (Revenue) Kasur dated 22.7.2006 for appointment of petitioner as Lumberdar, Executive District Officer (Revenue), Kasur dated 18.03.2008 accepting the appeal of Respondent No. 1 and Member Board of Revenue dated 16.6.2009 dismissing the revision petition filed by the petitioner are set aside and the case is remanded to the Executive District Officer (Revenue), Kasur to decide the appeal of Respondent No. 1 afresh after considering all necessary material/evidence, provided by both the parties. As a sequel to setting aside of order dated 22.7.2006 passed by District Officer (Revenue) Kasur regarding the appointment of petitioner as Lumberdar, the revenue functionaries shall start the proceedings for appointment of a new Lumberdar in accordance with the procedure prescribed under the law.

(R.A.) Petition accepted

PLJ 2015 Lahore 230 [Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

CHIEF EXECUTIVE OFFICER MEPCO through Manager (Admin)Khanewal, Multan--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL-II, MULTAN and 3 others--Respondents

W.P. No. 615 of 2014, heard on 17.6.2014.

Industrial Relations Ordinance, 2002--

----S. 46(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Subsequently promotion--Imposition of major penalty of compulsory retirement--Grievance petition was filed after seven days delay--Barred by time--Grievance petition could not be accepted after being imposed major penalty of compulsory retirement--Obligation to communicate decision to notice of employee within period of 15 days--Validity--If an employer fails to communicate his decision within period specified or if a worker is dis-satisfied with such decision worker may take matter to Labour Court but he shall do so within a period of two months from date of communication of decision by employer or as case may be from expiry of period specified in Section 46(2) of Industrial Relations Ordinance, 2002--Jurisdiction of Labour Court/tribunal created under special statute is dependent upon nature of claim, person who files claim, time during which it has been filed and manner in which such claim has to be filed--Jurisdiction can be exercised by Labour Court/tribunal when all jurisdictional facts exist together--Labour Court or Labour Appellate Tribunal are under an obligation to act within scope of Industrial Relations Ordinance, 2002 and cannot exercise jurisdiction as a Civil Court; as soon as Labour Court or Labour Appellate Tribunal steps out of four corners of a special law order/judgment passed would be result of defective or excessive exercise of jurisdiction--Order passed by respondent is patently in violation of express provisions of law i.e. Section 46 of Industrial Relations Ordinance, 2002--Tribunal which is in vested with jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly because condition for grant of jurisdiction is that it should decide matter in accordance with law when tribunal goes wrong in law, it goes outside jurisdiction conferred on it--Grievance notice sent after an inordinate delay of more than 5 years instead of a prescribed period of 15 days in Section 46 of Industrial Relations Ordinance, 2002 is not a valid grievance notice on basis of which grievance petition could have been filed; and in case grievance notice has not been served within period stipulated under provisions of a special law i.e. Industrial Relations Ordinance, 2002, most significant of jurisdictional fact would be missed while filing a grievance petition and non sending of a grievance notice is a defect which goes to root of case--Accumulative effect of these factors would be that respondent was also estopped from claiming his reinstatement by filing a grievance petition against order imposing penalty of compulsory retirement--Punjab Labour Appellate Tribunal while passing impugned order erred in law as it stepped out of four corners of Industrial Relations Ordinance, 2002. [Pp. 234 & 235] A, B, C, D, E, F & G

Ch.Saleem Akhtar Warriach, Advocate for Petitioner.

Mr. MuhammadAtif Qureshi, Advocate for Respondent No. 3.

Date of hearing: 17.6.2014.

Judgment

Through this constitutional petition, the petitioner has challenged the judgment dated 8.10.2013 passed by Punjab Labour Appellate Tribunal-II, Multan.

1. The facts of the case are that the Respondent No. 3 was appointed as Assistant Lineman in WAPDA and was subsequently promoted as Lineman-II. Respondent No. 3 aggrieved by the imposition of major penalty of compulsory retirement initially filed a departmental appeal which was not responded to and, therefore, petitioner filed an appeal No. 921(L)/C.S/2000 before Federal Service Tribunal which was subsequently withdrawn on 26.10.2001. The petitioner on 14.2.2007 filed a grievance petition before Punjab Labour Court No-8, Bahawalpur against the imposition of major penalty of compulsory retirement. The Punjab Labour Court No-8 dismissed the grievance petition filed by the petitioner through judgment dated 9.4.2010. Aggrieved by the judgment passed by Punjab Labour Court No-8/Respondent No. 2 an appeal was filed before Punjab Labour Appellate Tribunal No. II and through impugned judgment the grievance petition filed by the petitioner was accepted. Hence, this writ petition.

2. The learned counsel for the petitioner argued that Punjab Labour Appellate Tribunal No. II/Respondent No. 1 while passing the impugned judgment did not consider the fact that the grievance petition was filed by the petitioner almost after seven years delay. It is further argued that the impugned judgment dated 8.10.2013 is based on surmises and conjectures; Punjab Labour Appellate Tribunal No. II while passing the impugned judgment completely disregarded the fact that being a Special Tribunal created under the special law it does not possess the inherent powers as are available to a civil Court and since the grievance petition filed by the petitioner was barred by time Respondent No. 1/Punjab Labour Appellate Tribunal No. II erred in law while accepting the grievance petition filed in the year 2007. It is further argued that grievance petition could not have been accepted as the petitioner after being imposed a major penalty of compulsory retirement has accepted his benefits as a full and final settlement.

3. On the other hand, the learned counsel appearing on behalf of Respondent No. 3 has vehemently opposed the arguments advanced by learned counsel for the petitioner and argued that since the order dated 22.4.2000 imposing penalty of compulsory retirement upon the petitioner was void and no a limitation runs against the void order.

4. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record.

5. Section 46 of the Industrial Relations Ordinance, 2002 reads as under:--

"Redress of individual grievances.--(1) A worker may bring his grievance in respect of any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or collective bargaining agent, within one month of the day of which cause of such grievance arises."

(2) Where a worker brings his grievance to the notice of an employer himself or through his Shop Steward or collective bargaining agent, the employers shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.

(3) If an employer fails to communicate a decision within the period specified in sub-section (2) or, if a worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his collective bargaining agent or the Labour Court, as the case may be, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute.

Provided that a worker who desires to take the matter to the Labour Court, he shall do so within a period of two months from the date of communication of the employer or, as the case may be, from the expiry of the period specified in sub-section (2).

(4) ………………………………………

(5) ………………………………………

(6) ………………………………………

(7) ………………………………………

(8) ………………………………………

1. The perusal of this section provides that a workman may bring his grievance to the notice of his employer in writing either himself or through its Shop Steward or collective bargaining agent within one month of the day on which cause of such grievance arises; the employer in case the grievance is brought to his notice is under an obligation to communicate his decision to the notice of the employee within a period of 15 days; if an employer fails to communicate his decision within the period specified or if a worker is dis-satisfied with such decision the worker may take the matter to the Labour Court but he shall do so within a period of two months from the date of communication of the decision by the employer or as the case may be from the expiry of the period specified in sub-section (2) of Section 46 of the Industrial Relations Ordinance, 2002.

2. There is no, denial to the fact that initially Respondent No. 3 filed the service appeal before Federal Service Tribunal which was withdrawn on 26.10.2001 and thereafter he remained silent for about five years; after a long slumber of these five years a grievance notice was served on 6.11.2006 and a grievance petition was filed on 14.2.2007. It is not denied by the learned counsel for Respondent No. 3 that respondent has received all his benefits from the petitioner.

3. It is an undeniable fact that jurisdiction of Labour Court/Tribunal created under the special statute is dependent upon the nature of the claim, person who files the claim, time during which it has been filed and the manner in which such claim has to be filed. These are all jurisdictional facts and assessment of these facts determines the jurisdiction of Labour Court as well as Labour Appellate Tribunal. Jurisdiction can be exercised by Labour Court/Tribunal when all the jurisdictional facts exist together.

4. It has been held in a judgment reported in NLR 1982 Labour 179 (Pakistan Mineral Development Corporation versus Amir Khan) that the Labour Court/Tribunal would have no jurisdiction to entertain a case where all the jurisdictional facts are not existing together. It has been specifically observed by the Division Bench that if a case has not been filed within prescribed time the Labour Court/Tribunal would have no jurisdiction to entertain such case.

5. In my opinion, Labour Court or Labour Appellate Tribunal are under an obligation to act within the scope of Industrial Relations Ordinance, 2002 and cannot exercise jurisdiction as a civil Court; as soon as Labour Court or Labour Appellate Tribunal steps out of the four corners of a special law order/judgment passed would be result of defective or excessive exercise of jurisdiction. This Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 would always rectify the illegality and violation of law and undo the harm caused by the Court/Tribunal. It is apparent that the order passed by Respondent No. 1 is patently in violation of express provisions of law i.e. Section 46 of the Industrial Relations Ordinance, 2002. It is not right to say that the Tribunal which is in vested with the jurisdiction to decide a particular matter has the jurisdiction to decide it rightly or wrongly because the condition for the grant of jurisdiction is that it should decide the matter in accordance with law when the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it.

6. In my view, a petition to the labour Court is dependent upon a valid grievance notice. Before deciding the grievance petition/labour appeal, it is incumbent upon the labour Court as well as labour tribunal as to whether the grievance notice has been served within the prescribed period of limitation as service of notice precedes invocation of jurisdiction of labour Court. The grievance notice sent after an inordinate delay of more than 5 years instead of a prescribed period of 15 days in Section 46 of the Industrial Relations Ordinance, 2002 is not a valid grievance notice on the basis of which grievance petition could have been filed; and in case the grievance notice has not been served within the period stipulated under the provisions of a special law i.e. Industrial Relations Ordinance, 2002, the most significant of the jurisdictional fact would be missing while filing a grievance petition and non sending of a grievance notice is a defect which goes to the root of the case.

7. At this stage, it would not be out of place to mention here that Respondent No. 3 after imposition of major penalty of compulsory retirement had received of his benefits and was also receiving his pension from the petitioner. After receiving all his emoluments in full and final settlement Respondent No. 3 had also withdrawn his service appeal pending before Federal Service Tribunal on 26.10.2001. The accumulative effect of these factors would be that Respondent No. 3 was also estopped from claiming his reinstatement by filing a grievance petition in the year 2007 against the order imposing the penalty of compulsory retirement dated 22.4.2000. In this regard reference is made to the judgment of Hon'ble Supreme Court of Pakistan reported in 2013 PLC 219 (Independent Newspaper Corporation (Private) Ltd. Versus Punjab Labour Appellate Tribunal Lahore and others).

8. For what has been discussed above, this Court is of the considered opinion that Punjab Labour Appellate Tribunal No. II while passing the impugned order dated 8.10.2013 erred in law as it stepped out of four corners of Industrial Relations Ordinance, 2002. Resultantly, this petition is allowed. The impugned order dated 8.10.2013 is set aside.

(R.A.) Petition allowed

PLJ 2015 Lahore 236[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

NAZIR AHMAD--Petitioner

versus

ADDITIONAL DISTRICT & SESSIONS JUDGE, MUZAFFARGARH and others--Respondents

W.P. No. 6251 of 2014, decided on 13.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment of local commission--Suit for specific performance--Agreement to sell--Application was dismissed by Courts below--Challenge to--Serious error in comprehending contents of application for appointment of local commission--Validity--It is well-established law that no party to a suit can be allowed either to make a departure from its pleadings or improve upon case set up by it therein--Plaintiff is bound to prove his own case in conformity with assertions made by him in plaint--Although motives have been ascribed to petitioner/plaintiff, which prompted him to make an application for appointment of a local commission at belated stage--If application of petitioner is to be allowed, then local commission would also have to be examined as one of witnesses. [P. 238] A, B & C

Ch. Muhammad Sana-ul-Haque, Advocate for Petitioner.

Date of hearing: 13.5.2014.

Order

Through this writ petition, Nazir Ahmad, the petitioner has assailed the validity of the orders dated 18.12.2013 and 24.4.2014 passed by learned Civil Judge Muzaffargarh and learned Addl. District Judge, Muzaffargarh, respectively, whereby he dismissed his application for the appointment of local commission moved in a suit for specific performance and a revision petition filed thereagainst was dismissed as well.

1. The plain facts are that the petitioner instituted a suit for specific performance in respect of land measuring 4 Kanals, situated at village Baraham Wali, District Muzaffargarh, seeking to enforce the alleged agreement to sell dated 13.2.2006. It was averred in the plaint that Gaman Khan, predecessor-in-interest of the respondents had made a sale agreement with the petitioner/plaintiff for the sale of the suit land for a consideration of Rs. 500,000/-. out of which he had received an amount of Rs. 300,000/- as earnest money, while the balance of the sale consideration amounting to Rs. 200,000/- was to be paid by the petitioner/plaintiff at the time of the execution and registration of the sale deed. It was further maintained by him that possession was delivered to him in the wake of the execution of the alleged agreement to sell dated 13.2.2006.

2. Gaman Khan put in an appearance and filed written statement, denying vehemently all the averments made in the plaint. It was specifically denied by him that he ever entered into any agreement to sell with the plaintiff. It was maintained by him that earlier, pre-emption suits were instituted by the plaintiff against him as well as his son, and that when the plaintiff failed to achieve his object to secure the land in question by exercising his alleged right of pre-emption, he came up with a false, frivolous and vexatious suit for specific performance.

3. The plaintiff produced oral evidence in support of his case. Thereafter, the learned trial Court seized with the suit called upon him to produce documentary evidence. At that stage, he moved an application for the appointment of a local commission, stating that he had raised construction on the suit land and that it was not cultivable, as was claimed by the defendant. This application was opposed tooth and nail by the defendant. It was pointed out by him that the plaintiff intended to improve upon his case which is simply impermissible in law, for no party can be allowed to make a departure from the pleadings or the case set up by it therein. At the same time, it was emphasized that even in the course of his deposition, the plaintiff did not utter a single word as to the construction made by him on the suit land. In a nutshell, it was maintained that the application for the appointment of a local commission stems for motives other than bona fides. The sole object was to prolong and drag on the proceedings so as to cause torment to the defendant.

4. As stated above, learned trial Court dismissed the application for the appointment of a local commission vide order dated 18.12.2013 by observing that the petitioner/plaintiff is to stand on his legs and since he has already produced his oral evidence, there was no justification for the appointment of local commission. This order was challenged by filing a revision petition, but the same was also dismissed by an Addl. District Judge, Muzaffargarh vide order dated 24.4.2014. It was observed in the impugned order that the case had been pending adjudication since 2009 and that the petitioner/plaintiff was out "to linger on the matter". The learned Revisional Court also agreed with the contention made by the defendants' side that when no plea as to the possession of the land and the raising of the construction thereon was taken in the plaint, how could the plaintiff be allowed to make out a new case by allowing his application for the appointment of a local commission.

5. In support of this petition, learned counsel for the petitioner submits that both the learned Courts below fell in serious error in comprehending the contents of the application moved by the petitioner for the appointment of a local commission. He insists that the petitioner/plaintiff had made an innocent/innocuous prayer, and if the respondents/defendants were true to their stand, they need not be afraid of the appointment of a local commission. According to him, the report submitted by the local commission would not only help resolve the controversy in issue but it would also negate the assertion made by the defendants’ side that no agreement was made by their predecessors-in-interest, namely, Gaman Khan.

6. I have perused the plaint filed by "he petitioner. Nowhere has he averred therein that he had made any constructions on the suit land. Again, when he appeared as PW.1, he did not make any such assertion in his deposition. It is well-established law that no party to a suit can be allowed either to make a departure from its pleadings or improve upon the case set up by it therein. Likewise, a plaintiff is bound to prove his own case in conformity with the assertions made by him in the plaint. In other words, he has to stand on his own legs and he cannot be allowed to build his case upon the weakness of the case of the other party. Although motives have been ascribed to the petitioner/plaintiff, which prompted him to make an application for the appointment of a local commission at the belated stage, yet I would resist the temptation to dwell upon the same lest it should prejudice the merits of the case, which is yet to be decided by the learned trial Court. Even otherwise, it was held by this Court in the case reported as "Muhammad Bakhsh v. Nizam Din" (PLD 1978 Lahore 31) that a party cannot be allowed to collect evidence through a local commission. Furthermore, if the application of the petitioner is to be allowed, then the local commission would also have to be examined as one of the witnesses. To put it differently, it would provide another opportunity to the plaintiff to fill in the lacunas left in his case. He having concluded his oral evidence, he could not be allowed to turn around and make another attempt to produce evidence to bolster up his case.

7. I have perused the impugned judgments, but I have not found any illegality or infirmity committed by the learned Courts, who passed them. Both the learned Courts exercised their jurisdiction in accordance with the law and in the light of the case law regulating their jurisdiction in relation to the appointment of a local commission.

As such the learned two Courts below did not commit any material irregularity in the exercise of their jurisdiction, warranting the interference of this Court under Section 115, CPC.

1. The upshot of the discussion made above is that there is no merit in the writ petition which is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 239 [Multan Bench Multan]

Present:ShahKhawar, J.

MUSHTAQ AHMAD and 13 others--Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary School, Education Civil Secretariat, Lahore and 5 others--Respondents

W.P. No. 8151 of 2011, heard on 17.6.2014.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--Scope--Punjab Education Department (School Education) Recruitment Rules, 1987--Scope--Constitutional petition--Graduate english teachers--Some equally school teachers were regularized by PST--Derogation of criteria set for appointment--Regularize service of school teachers--Validity--All graduate english teachers shall be treated as civil servants for all intends and purposes in terms of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with Punjab Education Department (School Education) Recruitment Rules, 1987, w.e.f. date of joining respectively--That any law or rule can only be given retrospective effect if same is in benefit of an individual and not to his detriment--It is by now a well settled principal of statutory interpretation that insertion or deletion of any provision in rules or law, if merely procedural in nature would apply retrospectively but not, if it effects substantial rights, which already stood accrued at time when un amended rule or provision was in vogue--Policy could 'only be valid to extent of service benefits to petitioners as well as all graduate english teachers, but not to make them penalized under PEEDA, Act, 2006 and Rules, 1974--Graduate english teachers shall be proceeded against with retrospective effect under PEEDA Act, 2006 and Rules, 1974, is hereby set-aside--Initiation of inquiry against petitioners by respondents is also quashed and respondents are directed to regularize services of petitioners and may be promoted in next scale--Petition was allowed. [Pp.244 & 245] A, B, C & D

Mr. MuhammadMasood Bilal, Advocate for Petitioners (in W.P. No. 8151, 8639, 8534 of 2011, 2858/2007 & 6573/2008).

Ms.Abida Nasreen Siddiqui, DEO (Woman) E.E., Khanewal for Respondents.

Date of hearing: 17.6.2014.

Judgment

By this single judgment, I intend to decide instant writ petition along with W.P.No. 8639, 8534 of 2011, 2858/2007 & 6573/2008, as all these writ petitions involve the same question of law. For the purposes of passing the judgment, the instant writ petition is being taken into consideration.

1. The petitioners are graduate English Teachers performing their duties under the Administrative Control of District Education Officer who after fulfilling all the codal formalities, were so appointed in the year 1995. Some of the equally placed school teachers filed appeals before the Punjab Service Tribunal seeking regularization of their services. The said Tribunal vide order dated 20.10.2002, ordered regularization of their services. In the same manner, similarly placed teachers filed appeal for regularization of their services as SST, which was also allowed by the learned Service Tribunal on 20.10.2002. The said judgments of\ the Punjab Service Tribunal were assailed by the respondents by way of filing CPLAs No. 127, 4178, 4179, 4180-L 2002 before the Honourable Supreme Court of Pakistan and same were dismissed vide judgment dated 28.03.2003. Hence, the judgments passed by the PST were upheld.

2. Director (Administration) Director Public Instruction (SE) Punjab, Lahore vide Memo No. 7702/Admn.I(2) dated 03.05.2003, directed all the District Education Officers (SE) in the Punjab to implement the decision of the Honourable Supreme Court of Pakistan with a direction to the Administrative Heads to regularize the Graduate English Teachers while implementing the decisions of the Honourable Supreme Court of Pakistan and Punjab Service Tribunal. On 23.12.2004, the Special Secretary Schools, Punjab, Lahore published a policy/rules on the subject whereby all the Graduate English Teachers shall be treated as civil servants for all intends and purposes in terms of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. In pursuance of the Policy dated 23.12.2004, on receipt of the reference sent by DCO Khanewal, who chaired the meeting of DRC, Respondent No. 3 vide Letter No. 186-11 dated 18.06.2011 directed as follows (operative part):--

"In view of the above, it is directed to initiate proceedings under the PEEDA Act, 2006 against all these bogus appointees by their respective competent authority/DEO (EE-M/W). Further the name of the officers who issued their bogus appointment orders be intimated to this Department for proceedings them too".

The petitioners were also charged by the respondents and the description of charge is reproduced herein under:--

| | | | | | --- | --- | --- | --- | | Sr.# | Name of Teacher | Date of appointment | Charge/Objection raised by the department. | | 1. | Mushtaq Ahmad | 30.11.1995 | Name not included in DRC | | 2. | Muhammad Tahir | 02.09.1995 | Name not included in DRC | | 3. | Habib-ur-Rehman | 02.09.1995 | Name not included in DRC | | 4. | Muhammad Younas | 02.09.1995 | Third division plus name not included in DRC. | | 5. | Mst. Qaisra Shaheen | 02.09.1995 | Third division plus name not included in DRC. | | 6. | Talat Roohi | 29.08.1995 | Name not included in DRC | | 7. | Muhammad Yousaf | 02.09.1995 | Name not included in DRC | | 8. | Muhammad Arif | 02.09.1995. | Name not included in DRC | | 9. | Mst.Safia Bibi | 29.08.1995. | Name not included in DRC | | 10. | Muhammad Ameen Abid | 02.09.1995. | Third division plus name not included in DRC | | 11. | Rana Muhammad Mudassar | 02.09.1995. | Third division plus name not included in DRC | | 12. | Tayyab Mehmood | 02.09.1995. | Third division plus name not included in DRC | | 13. | Altaf Hussain | 02.09.1995. | Name not included in DRC | | 14. | Muhammad Usman | 02.09.1995. | Name not included in DRC |

The petitioners have impugned the said letter dated 18.06.2011 inter alia on the following grounds:--

(a) That as many as 18 persons, whose cases were exactly of the same nature, have been confirmed and exonerated of the same charge vide list dated 15.11.2007 issued by the District Education Officer (EE-M), Khanewal. The charges against the said persons were that they were holding the degree of B.A in third Division and their-names were not included in District Recruitment Committee (DRC).

(b) that in Multan Division as many as 28 persons from the male teachers, who were similarly charged, their services were regularizedvide order dated 25.06.2007 by the order of District Education Officer EE-Male, Multan &;

(c) in case of 57 female teachers on the conclusion of inquiry report, the departmental authority dropped charges against them and their services were regularized by the District Education Officer (W-EE), Multan.

1. The petitioners have referred to an inquiry report arrived at by a three members Inquiry Committee addressed to the District Education Officer, Khanewal, in which following recommendations were made:--

"They are drawing their salaries regularly. There is no enquiry or any type of irregularity pending against them. They have their service books complete in all respect duly signed by the DDOs containing concerned documents. There is no break in their continuous service.

It is recommended that their cases may be put up before the DPC for regularization w.e.f. the date of their appointment. It was further suggested that these EET's should be advised to improve their division or have master degree within three years."

It was specifically mentioned in the inquiry report that the judgment of the Honourable Supreme Court of Pakistan provides full protection to the said EET's. In the same manner another inquiry report dated 03.08.2007 has been referred in which it was recommended that their cases may be put up before the DPC and they be considered for their promotion w.e.f date of their adjustment. The above referred inquiries were based upon inter alia following allegations:--

"(i) B.A third division &

(ii) Non inclusion of names in the approved District Recruitment Committee list.

It was recommended by the competent authority that the appointment made and issuance of appointment letters is the sole responsibility of the authority concerned in accordance with the legal procedure nor it rests upon the candidate who has only to submit his application for his appointment. The candidates have no concern whatsoever, but only to get their appointment letters signed by the authority from concerned office."

The observations made by the Inquiry Committee was based upon the relevant portion of the judgment of the Honourable Supreme Court of Pakistan which was reproduced in report:--

"It was the sole responsibility of appointing authority to fulfill codal formalities, so, the responsibility of shortcomings lies upon the authority and not upon the appellant"

Reliance has been placed on Province of Punjab through Secretary, Agriculture, Government of Punjab and others vs. Zulfiqar Ali (2006 SCMR 678), Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another vs. Sadullah Khan (1996 SCMR 413), Pakistan International Airlines Corporation through Chairman and others vs. Shahzad Farooq Malik and another (2004 SCMR 158), Administrator, District Council, Larkana and another vs. Ghulab Khan and 5 others (2001 SCMR 1320) and I.A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041).

1. I have given my anxious consideration to the contents of writ petition, all annexures and arguments advanced by the learned counsel for the parties.

2. Admittedly, some of the school teachers filed departmental appeals before the learned Punjab Service Tribunal (PST) for regularization of their service, which were allowed and the judgments of the learned PST was challenged before the august Supreme Court of Pakistan by way of filing CPLAs No. 127, 4178, 4179, 4180-L 2002. The said CPLAs were dismissed. Consequence there upon on 03.05.2003, the Director (Administration) Director Public Instruction (SE) Punjab, Lahore vide Memo No. 7702/Admn.I(2) directed all District Officers Education, Punjab to implement the decision of the Honourable Apex Court. Amazingly, the Secretary Schools Punjab, Lahore, on 23.12.2004, published policy/rules, in which it was declared that all the Graduate English Teachers shall be treated as civil servants for all intends and purposes in terms of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with Punjab Education Department (School Education) Recruitment Rules, 1987, w.e.f. date of joining respectively. Therefore, all the appointing/competent authorities were directed to take following actions:

(i) Graduate English Teachers will be treated as regular appointees from the date of joining subject to fulfillment of prescribed professional qualifications. They will be entitled for all services benefits as well, financial as admissible to a civil servant.

(ii) Service of only such Graduate English Teachers will be regularized who are presently in continuous service from the date of their appointment.

(iii) Those Graduate English Teachers who were proceeded against under, E & D Rules or any other rules/law and have been removed/dismissed from service, cannot be considered for regularization, besides those Graduate Teachers who are facing proceedings under any law/rules will not be considered for regularization.

1. In the light of said Policy, DCO Khanewal chaired a meeting of District Recruitment Committee and directed the District Education Officer Khanewal to proceed against the Graduate English Teachers under the PEEDA Act, 2006, having procured their appointments in derogation of the criteria set for such appointments. Subsequent to the said decision, the petitioners were charged, hence this writ petition.

2. The above said policy seems to have been framed to frustrate the judgments passed by the learned PST and the Honourable Supreme Court of Pakistan. The policy was formulated just to enable the department to proceed against the Graduate English Teachers under the PEEDA Act, 2006, who were appointed back in the year 1995. Said exercise is not tenable in law. For all practical purposes, the petitioners as well as rest of the Graduate English Teachers were appointed on temporary basis, whose services were ordered to be regularized by the learned PST and the Honourable Supreme Court of Pakistan. According to the PEEDA Act, 2006, temporary or contract employees are not covered under the Act, ibid. Even otherwise, principle of law has been enunciated by the Honourable Supreme Court of Pakistan in a number of cases to the extent that any law or rule can only be given retrospective effect if the same is in benefit of an individual and not to his detriment.

3. Reliance could be placed on the judgments reported as Water and Power Development Authority, Lahore through Chairman and others vs. Haji Abdul Aziz and others (2012 SCMR 965) and Senior Member BOR and others vs. Sardar Bakhsh Bhutta and another (2012 SCMR 864). It is held that any amendment which deprives a person of his right has to be construed prospectively. Moreover, it is by now a well settled principal of statutory interpretation that the insertion or deletion of any provision in the rules or the law, if merely procedural in nature would apply retrospectively but not, if it effects substantial rights, which already stood accrued at the time when un amended rule or provision was in vogue. The impugned policy could 'only be valid to the extent of service benefits to the petitioners as well as all Graduate English Teachers, but not to make them penalized under the PEEDA, Act, 2006 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Respondent No. 1 could have asked the concerned District Education Officers, Punjab, to scrutinize the particulars of the Teachers, but not to proceed against them under the PEEDA Act, 2006 as well as Punjab Civil Servants (Appointment & Conditions, of Service) Rule, 1974.

4. In the light of the judgments passed by the learned PST and the Honourable Supreme Court of Pakistan on the subject, the petitioners as well as the other Graduate English Teachers could not have been proceeded against PEEDA Act, 2006, which was not applicable to them. The inquiry initiated against the present petitioners by the respondents is nullity in the eyes of law and in gross violation of the judgment passed by the learned PST and the Honourable Supreme Court of Pakistan.

5. The policy/rules dated 23.12.2004 framed by the Special Secretary Schools Punjab, Lahore, to the extent that the Graduate English Teachers shall be proceeded against with retrospective effect under the PEEDA Act, 2006 and the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, is hereby set-aside. The initiation of inquiry against the petitioners by the

respondents is also quashed and the respondents are directed to regularize the services of the petitioners and may be promoted in the next scale as recommended by the Director (Administration) Director Public Instruction (SE) Punjab, Lahore vide Memo No. 7702/Admn.I(2) dated 03.05.2003.

1. All the writ petitions are allowed in the above terms.

(R.A.) Petitions allowed

PLJ 2015 Lahore 246 [Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

Mst. KANEEZ FATIMA--Petitioner

versus

SESSIONS JUDGE, MUZAFFARGARH and 3 others--Respondents

W.P. No. 8489 of 2014, decided on 19.6.2014.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 361--Constitutional petition--Registration of case--Validity of order--Recovery of minor from custody of mother--Question of--Whether real mother of detenue had forcibly snatched detenue--No case of abduction can be registered against natural guardian--Validity--Mother of a child is always a natural guardian alongwith father--Mother can never been ascribed or attributed offence kidnapping of her own child--Exception posted with Section 361, P.P.C. even goes to extent of reliving a person from criminal liability even if he/she believes himself/herself to be mother/father of an illegitimate child, or, who is in good faith believes to be entitled to lawful custody of such child--Child of 4 years needs love, affection & care mother--Offence of kidnapping from lawful guardian by mother has not been made out for reasons detailed in that order. [P. 248] A

Mr.Tahir Mehmood, Advocate for Petitioner.

Malik Muhammad Bashir Lakhesir, Advocate for Respondents.

Date of hearing: 19.6.2014.

Order

This petition has been filed by the petitioner under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, with the prayer that the impugned order dated 17.06.2014 passed by the learned Sessions Judge, Muzaffargarh may very kindly be declared illegal, the same be set aside and in consequence of the same, the petition under Section 491 Cr.P.C filed by Respondent No. 4 may very kindly be dismissed to meet the ends of justice.

1. The background of the instant case is that the petitioner was married with Syed Hafeez Ahmad Bukhari/Respondent No. 3 on 27.05.2011. Out of this wedlock, one child Abad Hussain was born. That after the eruption of dispute between the petitioner and Respondent No. 3, the petitioner filed a suit for dissolution of marriage which was ex-parte decree on 18.02.2014 and since then she is living with her relatives at Basti Pull Braran, Multan, Thereafter Respondent No. 3 filed a petition under Section 491 Cr.P.C for the recovery of Abad Hussain minor from the custody of petitioner which was disposed of vide order dated 17.06.2015 with the observation that, "this Court is left with no other alternative except to direct the Respondent No. 1/S.H.O Police Station Qureshi to record the statement of the petitioner and proceed further strictly in accordance with law."

2. It is contended by the learned counsel for the Petitioner that the impugned order has been passed in a slipshod manner, without application of judicial mind; that if the provision of Section 491 Cr.P.C is seen in its true perspective, the learned Sessions Judge has no authority whatsoever under the law to issue direction for the registration of the case in the capacity as Sessions Judge. Hence the impugned order passed by the learned Sessions Judge, illegal, corum-non-judice and liable to be set-aside; that if the contents of the petition are taken in its true perspective, Respondent No. 3 has not stated as to whether the petitioner being the real mother of the detenue has forcibly snatched the detenue from the Respondent No. 3. That admittedly the minor is the son of petitioner, no case of abduction can be registered against the natural guardian (mother and father).

3. Heard and record perused.

4. Bare perusal of the petition shows that learned counsel for the petitioner had assailed the validity of order dated 17.06.2014 passed by the learned Additional Sessions Judge, Muzaffargarh in the petition filed before him in terms of Section 491 Cr.P.C and drawn the attention of this Court to Section 361 of PPC for facility & reference of Section 361 of PPC, which is reproduced as under:--

5. ''Kidnapping from lawful guardianship. Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of

unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

The cumulative effect and reading of Section 361 P.P.C. with exceptions is that the child should be removed out from the custody of the lawful guardian in order to constitute an offence of kidnapping. Mother of a child is always a natural guardian alongwith the father. Mother can never been ascribed or attributed the offence kidnapping of her own child. The exception posted with Section 361 P.P.C even goes to the extent of reliving a person from criminal liability even if he/she believes himself/herself to be the mother/father of an illegitimate child, or, who is in good faith believes to be entitled to the lawful custody of such child. Undoubtedly, a child of 4 years needs love, affection & care from mother. The offence of kidnapping from the lawful guardian by the mother has not been made out for the reasons detailed in this order.

1. The facts noted in the preceding para are sufficient to believe that the learned Sessions Judge did not examine the relevant material on the record. The order of the learned Sessions Judge Muzaffargarh as such is not maintainable in the eye of law and is liable to be set-aside.

7. For the foregoing reasons, continuation of proceeding would amount to gross abuse process of law. Resultantly, the order dated 17.06.2014 passed by the learned Sessions Judge, Muzaffargarh in the petition filed under Section 491 Cr.P.C is quashed being unlawful.

(R.A.) Petition accepted

PLJ 2015 Lahore 248

Present: Mrs. Ayesha A.Malik, J.

RABAB ZAHIRA--Petitioner

versus

UNIVERSITY OF AGRICULTURE, FAISALABAD through its Registrar, Main Campus, University of Agriculture, Faisalabadand 5 others--Respondents

W.P. No. 8640 of 2010, heard on 28.11.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Ad-hoc appointment on contract basis--Restrained from delivering lecturers at university through verbal order--Challenge to--Grievance of petitioners is that after expiry of contract period, petitioners requested for further extensions, they were denied same even though they were recommended by their departments for extensions in ad-hoc appointments--No right to continue lecturing after expiry date of their contract period--No vested right for seeking extension or regular appointment--No reason to issue any notice or inform them that they are no longer required to continue delivering lectures, as petitioners knew that they were appointed as ad-hoc lecturer and that such contract was for a limited period of time--After its expiry, there was no reason for university to issue any notice or inform petitioners that their contract period had expired--No procedural violation and no right of natural justice has been violated as she has been duly heard, interviewed and more importantly pursuant to her own application before Supreme Court, her matter was heard by Vice Chancellor who passed a detailed order with respect to her allegations of appointments being based on favouritism and nepotism--Petitions dismissed. [Pp. 253 & 254] A, B & C

Mr.Tipu Salman Makhdoom, Advocate for Petitioner (in W.P. Nos. 8640 & 10882 of 2010).

HafizKhalil Ahmad, Advocate for Petitioner (in W.P. Nos. 15312 and 19178 of 2010).

Mr. MuhammadShahzad Shaukat and Sardar Tariq Mehmood, Advocates for Respondents.

Date of hearing: 28.11.2013.

Judgment

Through this common judgment, I intend to decide upon the common issues arising in the following Writ Petitions:--

| | | | --- | --- | | W.P. Nos. | Title | | 8640/2010 | Rabab Zahira vs. University of Agriculture etc. | | 10882/2010 | Dr. Abdul Ghaffar vs. University of Agriculture etc. | | 15312/2010 | Dr. Asif Javaid vs. University of Agriculture etc. | | 19178/2010 | Mohsin Saleem etc. vs. University of Agriculture etc. |

1. A description of the petitions is as follows:--

(i) WP No. 8640/2010. The Petitioner in WP No. 8640/2010 was appointed ad-hoc on contract basis for a period of six months by the Respondents vide notification dated 4.4.2007 with effect from 29.3.2007 which stipulates the terms and conditions of the contract of the Petitioner. The name of the Petitioner is at Sr.No. 51. The contract was extended vide notification dated 31.5.2008 for another six months with effect from 26.5.2008. The Petitioner's name is at Sr.No. 21. Again vide notification dated 30.6.2009 the contract was extended for another six months with effect from 27.5.2009, expiring on 27.11.2009. The Petitioner requested for extension in her ad-hoc appointment for another six months, however, the Respondents did not respond to the repeated reminders and requests of the Petitioner. Throughout this time the Petitioner kept performing her duties, however, she was not paid any salaries. The Petitioner was also recommended by the Respondent No. 1 for extension in her ad-hoc appointment, however, no heed was paid to this recommendation. The Petitioner filed appeal before the Chancellor which is still pending. Ultimately based on a verbal order dated 15.4.2010 the services of the Petitioner were terminated. The Petitioner has also impugned the act of the Respondents of rejecting the Petitioner and appointing the Respondents No. 4 and 5 as lecturers on regular basis for being in violation of the merit. Hence this petition.

(ii) WP Nos.10882, 15312 and 19178 of 2010. The Petitioner in WP Nos.10882 along with Petitioners in WP Nos.15312 and 19178 of 2010 have all impugned the verbal order of Respondent No. 4 dated 15.4.2010 by virtue of which they were not allowed to take their classes on the grounds that the verbal order is unconstitutional and against the principles of natural justice.

Therefore the common challenge is with respect to a verbal order on the basis of which the Petitioners were not allowed to carry on lecturers at the Respondent University and in WP No. 8640/2010 the Petitioner has also challenged the appointment of the Respondents No. 4 and 5 for being without merit.

1. Learned counsel for the Petitioners argued that the Petitioners have served in the Respondent University for a long time as Lecturers, being paid initially on lecture basis and ultimately being given ad-hoc appointments through different notifications. The Petitioners ad-hoc appointments were extended from time to time and after the expiry of the ad-hoc appointments, the Respondents did not extend the ad-hoc period despite the recommendations made in their favour and despite the long standing service of the Petitioners. The Petitioners have challenged the verbal orders of the Respondent No. 4 on the grounds that there is no sanctity in the verbal orders and that they have no knowledge as to the reasons or the grounds on which they have been denied the right to deliver their lectures at the Respondent University.

2. Learned counsel for the Petitioner in WP No. 8640/2010 argued that the Respondents advertised for three posts of lecturers in BS-18 on regular basis for which the Petitioner applied. She was called for interview, however, she was not selected. The grievance of the Petitioner is that the Respondents No. 4 and 5 were selected as lecturers on regular basis, however, they did not have the requisite merit and that the Petitioner has a far better merit and is a more deserving candidate and it is on account of the malafide acts of the Respondent University that the Petitioner was denied regular appointment. In this regard, the learned counsel has relied upon the marks given by the Selection Board to the different candidates to show that the Petitioner was not given the appropriate or deserving marks, given that she satisfied the eligibility criteria set out by the Respondent University in the advertisement dated 12.10.2009. Learned counsel argued that the Respondents No. 4 and 5 were appointed on favouritism. They did not have the requisite experience, qualification and even necessary publication. He argued that this appointment is based on the malafides of the Respondents.

3. The Respondents have filed their report and parawise comments. Learned counsel for the Respondent University argued that so far as the ad-hoc appointment of the Petitioner is concerned and their extensions from time to time, the same is not denied. However, he argued that the extensions granted to the Petitioners in WP No. 8640/2010 expired in November 2009. The extensions granted to the Petitioner in WP No. 10882/2010 expired on 23.3.2010, the extension granted to the Petitioners in WP No. 19178/2010 expired in the year 2009. The Petitioners in WP No. 19178/2010 applied for regular position as lecturer. They were duly considered and interviewed by the Selection Board, however, they were not recommended for regular appointments. He argued that similarly the Petitioner in WP No. 8640/2010 applied for regular position and she was duly considered and interviewed by the Selection Board, however, she was also not recommended by the Selection Board. The Petitioner in WP No. 15312/2010 extension expired in June 2010 after which no further extension was granted. Learned counsel argued that the Petitioners were all appointed as ad-hoc lecturers on contract which were duly extended from time to time and after their contract expired the Petitioners ceased to be employees of the Respondent University. Learned counsel stated that the Petitioners have no vested right on the basis of which they can claim extension in their ad-hoc appointments. He further argued that the Petitioners were aware of the fact that they were granted one last extension and that their contracts had expired. Thereafter the Respondents were not required to issue any notice or give the Petitioners any hearing on this issue. He further stated that the Petitioners have impugned a verbal order stating they are no longer required to deliver lecture with the University, however, he states that after the expiry of the contract period, since the Petitioners ceased to be the contract employees of the University, they were no longer allowed to deliver lectures at the University. Therefore, the question of any verbal order restraining them from delivering lecturers is misconceived and contrary to the record. In this regard, learned counsel has relied upon the case titled 'Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs vs. Muhammad Azam Chattha' (2013 SCMR 120) that The contract employees are governed by the doctrine of master and servant and in the event of arbitrary dismissal or unwarranted termination of employment, the employee can sue for damages equal to wages, allowances and other benefits which would have been otherwise been payable under the contract of employment, in which case the writ petition is not maintainable. He has also relied upon 2013 SCMR 304 in S.M.C. No. 15 of 2010 and C.M.As Nos.2689, 3244 of 2010 and CMAs Nos.5383, 3068 of 2011 that a contract employee does not have a vested right for regular employment. Learned counsel argued with respect to the grievance of the Petitioner in WP No. 8640/2010 that the appointment of the Respondents No. 4 and 5 are contrary to the merit, that the Petitioner had also filed an application before the Hon'ble Supreme Court of Pakistan in which a direction was given to the Respondent No. 1 to decide her application. He argued that the grievance of the Petitioner was duly heard and a comprehensive order was passed by the Vice Chancellor through its order dated 11.5.2010. He argued that all the allegations raised by the Petitioner of favouritism and nepotism were duly considered at this hearing and thereafter the Vice Chancellor passed an order. Therefore, the Petitioner cannot re-agitate the matter again before this Court. He argued that the Petitioner has not raised any ground or challenged this matter specifically in the instant writ petition. He further argued that the Petitioner's case was duly considered by the Selection Board who unanimously approved the selected candidates and as such there is no justification in questioning the decision of the Selection Board. He further argued that due process was followed, the Petitioner was considered and the Selection Board did not recommend her for a regular appointment.

4. I have heard the learned counsel for the parties and reviewed the record available on the file.

5. The first issue before this Court is with respect to the common prayer of the Petitioners that they were restrained from delivering lecturers at the Respondent University through verbal orders. In terms of the record and as per the arguments made by the learned counsel for the Petitioners, it is an admitted position that the Petitioners were all appointed on ad-hoc basis through different notifications whereby their period of ad-hoc appointment was extended from time to time. The expiry of the ad-hoc period is also an admitted position. The grievance of the Petitioners is that after the expiry of the contract period, the Petitioners requested for further extensions, they were denied the same even though they were recommended by their departments for extensions in the ad-hoc appointments. The Petitioners are also aggrieved by the fact that one fine day through a verbal order they were denied the right to deliver their lectures at the Respondent University. The record produced before this Court is not disputed and from this record it is clear that the Petitioners were all appointed on contract for ad-hoc lecturing, which contracts were extended from time to time. The Petitioners were all aware of the expiry of their extension period. After the expiry of the extension period, admittedly no further extension was granted to the Petitioners. There is nothing on the record to show on what basis the Petitioners did deliver the lectures, if at all, at the Respondent University. The Respondent University has categorically denied that the Petitioners were allowed to continue giving lectures at the Respondent University. I am of the opinion that the Petitioners have no right to continue lecturing after the expiry date of their contract period. There is also no vested right of the Petitioners for seeking extension or regular appointment. Finally there was no reason for the Respondent University to issue any notice or inform them that they are no longer required to continue delivering lectures, as the Petitioners knew that they were appointed as ad-hoc lecturer and that such contract was for a limited period of time. After its expiry, there was no reason for the Respondent University to issue any notice or inform the Petitioners that their contract period had expired. Therefore the very basis upon which these writ petitions have been filed wherein a verbal order has been impugned is totally misconceived and contrary to the record.

6. So far as the arguments raised by the learned counsel for the Petitioner in WP No. 8640/2010 challenging the appointment of the Respondents No. 4 and 5 for being devoid of merit, I am of the opinion that due process was, followed. The Petitioner applied for regular appointment. She was duly considered by the Selection Board and ultimately after considering all the candidates the Selection Board unanimously appointed the Respondents No. 4 and 5. Learned counsel for the Petitioners relied upon the case titled 'Pakistan Defence Officers' Housing Authority and others vs. Lt. Col. Syed Jawaid Ahmad' (2013 SCMR 1707) that the failure to appoint the Petitioner is in fact a procedural violation and infringement of the Petitioner's rights to natural justice. In the case of this Petitioner there has been no procedural violation and no right of natural justice has been violated as she has been duly heard, interviewed and more importantly pursuant to her own application before the Hon'ble Supreme Court of Pakistan, her matter was heard by the Vice Chancellor who passed a detailed order with respect to her allegations of the appointments being based on favouritism and nepotism. Now she cannot re-agitate the same issue through her writ petition.

7. In view of the aforesaid these petitions are dismissed.

(R.A.) Petitions dismissed

PLJ 2015 Lahore 254[Multan Bench Multan]

Present: M.Sohail Iqbal Bhatti, J.

MUHAMMAD ASIM KHAN--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL NO. 2, MULTAN and 3 others--Respondents

W.P. No. 12241 of 2012, decided on 14.7.2014.

Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968--

----S. O. 15(3)--WAPDA Employees (Efficiency & Discipline) Rules, 1978, R. 6(1)--Dismissal from service--Inquiry proceedings were tainted with serious irregularity--No opportunities were provided--Question of--Whether charges leveled against petitioner through charge sheet were covered by definition of misconduct--Determination--Proceedings initiated against petitioner under WAPDA Employees (Efficiency and Discipline) Rules, 1978 were wholly without jurisdiction and respondents could proceed against petitioner under Rules, 1978--If act of petitioner is not covered by definition of "misconduct" as given in Standing Order 15(3) then question of initiating an inquiry as well as imposition of major penalty of dismissal from service could not arise--If basic act is void then entire superstructure developed on basis of an action not countenanced in law must fall to ground--"Misconduct" attributed to petitioner is not covered under Standing Order 15(3); therefore, question of imposition of penalty under Standing Order 12 (2) would not arise--Proceedings initiated against petitioner were tainted with legal malice as same cannot be countenanced in law--Courts below had failed to appreciate legal question involved in instant case; and passed impugned judgments in a mechanical manner. [Pp. 259, 261 & 262] A, B, C, D & E

Pirzada Niaz Mustafa Qureshi, Advocate for Petitioner.

Mr.Riaz-ul-Hassan, Advocate for Respondents.

Date of hearing: 24.6.2014.

Judgment

Through this single judgment, I am inclined to decide the instant writ petition and W.P.No. 14079/2012 (Kot Addu Power Company Limited (KAPCO) etc., versus Muhammad Asim Khan etc) as the similar questions of law and the facts are involved in both the writ petitions.

1. The facts of the case are that the petitioner was employed with Respondents No. 3 and 4 as Attendant (shift-C). On account of an act of "misconduct", petitioner was served with the charge sheet on 13.01.2003 along with statement of allegations of abusing, severely beating and assaulting one Atta Ullah Khan, Assistant Chemist, Employee of Kot Addu Power Company. The petitioner submitted his reply on 03.02.2003 which was found unsatisfactory by the employer and therefore inquiry committee was constituted. The petitioner participated in the inquiry proceedings; he was provided opportunity to cross examine the witnesses and produce his defence. After conclusion of the inquiry, the report was submitted on 12.03.2003 and on the basis of the report; a final show-cause notice was served upon the petitioner on 24.3.2003. The petitioner submitted his reply to the said show-cause notice on 07.04.2003 which was found unsatisfactory and the competent authority imposed a major penalty of dismissal from service upon the petitioner through order dated 12.04.2003. Initially, the petitioner made a representation dated 24.04.2003 and subsequently filed an appeal before Federal Services Tribunal at Lahore. The said appeal was abated as a result of judgment of the Honourable Supreme Court of Pakistan reported in PLD 2006 Supreme Court 602 (Muhammad Mubeen-us-Salam and others versus Federation of Pakistan through Secretary, Ministry of Defence and others). Thereafter, petitioner filed a grievance petition before Punjab Labour Court No. 9, Multan. The Respondents No. 3 and 4 filed their written reply. The Punjab Labour Court No. 9, Multan through judgment dated 12-03-2009 converted the dismissal from service order into the order of compulsory retirement while holding that the petitioner shall be entitled to all the retirement benefits according to the Rules.

2. Being dissatisfied from the judgment dated 12.03.2009; both the parties filed their respective appeals before the Punjab Labour Appellate Tribunal No. II, Multan.

3. It might not be out of place to mention here that the petitioners in W.P. No. 14079/2012 initially filed a Writ Petition No. 2472/2009 which was disposed of by this Court on 23.06.2009 with the direction to petitioners to approach Punjab Labour Appellate Tribunal.

4. Both the appeals were decided by Punjab Labour Appellate Tribunal through judgment dated 25.06.2012. The learned Punjab Labour Appellate Tribunal No. II, Multan dismissed both the appeals while upholding the judgment passed by the Punjab Labour Court No. 9, Multan. It is not out of place to mention here that the appeal filed by Respondent Nos. 3 and 4 was dismissed being barred by time.

5. Aggrieved by the judgments passed by both the Courts below, the instant writ petition and Writ Petition No. 14079/2012 have been filed. Through instant writ petition, the prayer has been made that the impugned judgments dated 12.03.2009 passed by the Punjab Labour Court No. 9, Multan and dated 25.06.2012 passed by Punjab Labour Appellate Tribunal No. II, Multan be set aside and the petitioner be reinstated in service, whereas through W.P No. 14079/2012, the relief has been sought to dismiss the grievance petition filed by the petitioner in the instant writ petition and upholding the order of dismissal from service by Respondents No. 3 and 4.

6. The learned counsel for the petitioner argued that the petitioner was victimized on account of the trade union activities. It has been further argued that the order of dismissal from service is premeditated; the inquiry proceedings were tainted with serious irregularities. It has been further argued that the petitioner was not given proper opportunity of hearing before imposition of a penalty of dismissal from service. Lastly the learned counsel for the Petitioner argued that charge sheet dated 13.1.2003 was issued under Rule 6 (1) of WAPDA Employees (E&D) Rules, 1978 which could not have been done after promulgation of Removal from Service (Special Powers) Ordinance, 2000 and thus the entire proceedings initiated against the petitioner on the basis of charge sheet dated 13.1.2003 were illegal and without jurisdiction. Learned counsel for the petitioner while relying on 2007 SCMR 229 (Azizullah Memon versus Province of Sindh and another) prayed that this petition be allowed.

7. On the other hand, learned counsel for the Respondents No. 3 and 4 while pleading his case argued that the judgments of both the Courts below are violative of law. It was further argued that the appeal filed by the petitioner had been wrongly dismissed being time barred. It is further argued that the appeal could have been treated as a cross objection to the appeal filed by the petitioner.

8. It has been further argued by the learned counsel for the Respondents No. 3 and 4 that both the Courts below could not have substituted the punishment awarded by the employer with their own findings if the charge was otherwise established. Learned counsel further argued that although the proceedings were initiated through charge sheet under Rule 6(1) of WAPDA Employees (E&D) Rules, 1978 but in fact the proceedings were initiated against the petitioner under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

9. I have considered the arguments advanced by the learned counsel for the parties and have also perused the record.

10. The question involved in this writ petition which is required to be resolved is of two fold nature. Firstly, as to whether after promulgation of Removal from Service (Special Powers) Ordinance, 2000 proceedings could have been initiated against he petitioner under WAPDA Employees (Efficiency and Discipline) Rules, 1978; and secondly as to whether the charges levelled against the petitioner through charge sheet dated 13.1.2003 are covered by the definition of "misconduct" under West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968; and the charge sheet dated January 13.1.2003 constituted an offence.

11. To answer the first question, I would refer to the charge sheet dated 13.1.2003 and Show-Cause Notice dated 24.3.2003 and lastly the order of dismissal from service dated 12.4.2003. All these documents substantiate the argument advanced by the learned counsel for the petitioner that the petitioner has been proceeded against under WAPDA Employees (Efficiency and Discipline) Rules, 1978 adopted by respondent-company as per Staff Agreement dated 27.6.1996. At this stage; it would be expedient/convenient to reproduce Sections 2(c), 11, 12 and 13 of the Removal from Service (Special Powers) Ordinance, 2000 which are as under:--

"Section 2(c). "person in corporation service" means every person in the employment of a corporation, corporate body, authority, statutory body or other organizations or institutions set up, established, owned managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein; and

Section 11. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder and any other law for time being in force.

Section 12. Proceedings under this ordinance.--All proceedings initiated on the commencement of this Ordinance in respect of matters and persons in service provided for in this Ordinance shall be governed by the provisions of this Ordinance and rules made thereunder.

Section 13. Pending proceedings to continue.--For the removal of doubts, it is hereby provided that all proceedings pending immediately before the commencement of this Ordinance against any person whether in Government service or corporation service under the Civil Servants Act, 1973 (LXXI of 1973) and rules, made thereunder, or any other law or rules, shall continue under the said laws and rules, and as provided thereunder."

1. The accumulative reading of the above provisions would manifest that the person who is an employee in a corporation, corporate body, authority, statutory body or other organization falls within the definition of a person and would be amenable to the jurisdiction of the Ordinance. It is further observed that the Removal from Service (Special Powers) Ordinance, 2000 has an over riding effect on all other laws notwithstanding anything contrary thereto. The only exception to the rule has been created by virtue of Section 13 of the Removal from Service (Special Powers) Ordinance, 2000 which provides that proceedings pending prior to the commencement of this Ordinance shall continue under the old law.

2. It is an undeniable fact that the Ordinance was promulgated on 27.4.2000 whereas the petitioner was proceeded against under the Rules on 13.1.2003, meaning thereby that the proceedings were initiated after promulgation of the Ordinance and were thus without any sanction of law. This Court is of the view that the legal position elaborated above supported by the case law clearly signifies that the proceedings initiated against the petitioner under WAPDA Employees (Efficiency and Discipline) Rules, 1978 were wholly without jurisdiction and the respondents could proceed against the petitioner under WAPDA Employees (Efficiency and Discipline) Rules, 1978.

3. To answer the second question I would refer to the charge sheet to determine as to whether the charges levelled against the petitioner fall within the definition of "misconduct" as provided in Standing Order 15 (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

4. I would refer to the charge sheet issued by the employer to the petitioner on 13.1.2003 which is reproduced below:--

“Whereas it is reported by Mr. Atta Ullah Khan, Assistant Chemist (PID)-208327) on 12.01.2003 that you Mr. Muhammad Asim Khan Attendant, Shift-C have committed following acts of misconduct for which you are hereby charged as under:--

1. That on 12.01.2003 at 12:40 hours when Mr. Atta Ullah Khan, Assistant Chemist while parking his car in front of his house No. D-22, KAPCO Colony, you Mr. Muhammad Asim started abusing him, moved forward, caught him and attacked with punches and severely beaten him.

2. That you have been teasing him for the past four years by committing following acts;

(a) Giving torture time and again, (b) Often taking fuel out of his vehicle, damaged and unlocked the vehicle, (c) That you called the wicked people in your lawn and make them to sit all the time and raise voices and tease in different style when his family steps out of his house.

(d) That you have deputed some people to chase and tease Mr. Atta at different places i.e. Power House Gate, KAPCO Colony Gate, Colony area and Kot Addu City.

(e) Keep suspected people sitting in your lawn.

(f) That you often insulted and teased Mr. Atta's children".

1. Since the learned counsel for Respondents No. 3 and 4 has frankly conceded that the petitioner is a workman under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ground 'h' in Writ Petition No. 14079/2012); as, it has been admitted by the learned counsel for the Respondents No. 3 and 4 that the petitioner has been proceeded against under the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it would be appropriate to reproduce definition of "misconduct" as given in Standing Order No. 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is as under:--

15(1)

(i)

(ii)

15(2)

(i)

(ii)

(iii)

(iv)

15(3) The following acts and omissions shall be treated as misconduct:--

(a) Willful insubordination of disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior, (b) Theft, fraud, or dishonesty in connection with the employer's business or property, (c) Willful damages to or loss of employer's good or property, (d) Taking or giving bribes or any illegal gratification, (e) Habitual absence without leave or absence without leave for more than ten days, (f) Habitual late attendance, (g) Habitual breach of any law applicable to the establishment, (h) Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline, (i) Habitual negligence or neglect of work, (j) Frequent repetition of any act or omission referred to in clause (I), (k) Striking work or inciting others to strike in contravention not the provisions of any law, or rule having the force of law, (l) Go slow.

(4)

(5)

1. The perusal of the definition of "misconduct" as given in Standing Order 15(3) manifests that none of the instances of "misconduct" mentioned in Standing Order 15 (3) have any consonance with the misconduct attributed to the petitioner in charge sheet; as all the instances of "misconduct" mentioned in Standing Order 15(3) are in relation to "misconduct" committed during the performance of duty.

2. Giving fist blows to a fellow employee in front of his house may be a criminal act committed by the petitioner in his personal capacity but is not covered by the definition of "misconduct" given in Standing Order 15(3) on the basis of which a major penalty of dismissal from service has been imposed.

3. In my opinion, if the act of the petitioner is not covered by the definition of "misconduct" as given in Standing Order 15(3) then the question of initiating an inquiry as well as imposition of major penalty of dismissal from service could not arise. If the basic act is void then the entire superstructure developed on the basis of an action not countenanced in law must fall to ground. It has been held by Hon'ble Supreme Court of Pakistan in a judgment reported in PLD 1958 Supreme Court (Pak.) 104 (Yousaf Ali versus Muhammad Aslam Zia and 2 others) that if on the basis of a void order subsequent orders have been passed either by the same authority or by the other authorities, the whole series of such orders, together with the superstructure of rights and obligations, must fall to the ground because such orders have as little legal foundation as the void order on which they are founded.

4. Taking guidance from the dictum laid down by the august Supreme Court of Pakistan I must observe that the "misconduct" attributed to the petitioner is not covered under Standing Order 15(3); therefore, the question of imposition of penalty under Standing Order 12 (2) would not arise.

5. For what has been discussed above, I am of the view that the proceedings initiated against the petitioner are tainted with legal malice as the same cannot be countenanced in law. Both the Courts below i.e. Punjab Labour Court No. 9, Multan and Punjab Labour Appellate Tribunal No. II, Multan have failed to appreciate the legal question involved in this case; and passed the impugned judgments in a mechanical manner.

6. Resultantly, this writ petition is allowed. The impugned judgments dated 12.03.2009 passed by Punjab Labour Court No. 9, Multan and dated 25.06.2012 passed by Punjab Labour Appellate Tribunal No. II, Multan are set aside. Grievance petition filed by the petitioner is accepted, the impugned order of dismissal from service dated 12.04.2003 is set aside. The petitioner is reinstated in service With immediate effect. The Writ Petition No. 14079/2012 is dismissed.

(R.A.) Petition allowed

PLJ 2015 Lahore 262 [Multan Bench Multan]

Present: ShahKhawar, J.

AHMAD HASSAN BUCHA--Petitioner

versus

CHAIRMAN NADRA, etc.--Respondents

W.P. No. 467 of 2014, decided on 12.9.2014.

Government Servants Efficiency & Discipline Rules, 1973--

----R. 5(iii)(a)(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Dismissal from service--Issuance of show-cause notice--Principle of due process of law--Mere issuance of show-cause notice and affording an opportunity of personal hearing was not suffice and impugned order of dismissal from service passed by respondent is without lawful authority and same is set-aside--Petition was allowed. [P. 265] A

PLJ 2009 SC 127; PLD 2008 SC 451 and 2009 SCMR 339 rel.

Mr.Iqbal Hussain Pawar Hajwari, Advocate for Petitioner.

M/s.Mahmood Ahmad Raja & Faraz Samad,Advocates for Respondents.

Date of hearing: 12.9.2014.

Judgment

The petitioner has challenged the vires of office Order No. 12/2013 dated 07.02.2013, passed by Respondent No. 3 whereby major penalty of dismissal from service with effect from 07.12.2013 has been imposed upon the petitioner.

1. Brief facts of the case are that petitioner was appointed as Data Entry Operator on 01.04.2009 in BS-7 and has been, performing his duties. He was served with a show-cause notice dated 01.01.2013 and following allegations were levelled:--

"(a) Applicant Muhammad Atiaf had applied for CNIC in modification category vide Tracking ID # 104461045118 dated 14th March 2012, while sitting at Print Station. You had briefed applicant that due to fake documents CNIC cannot be processed. Later on, you had sought mobile number of applicant for settlement at your own level in order to achieve ulterior motives. However, CNIC was missing when matter was not settled by you with applicant.

(b) When applicant came in office to receive his CNIC but same was not at location. Later on, CNIC was sent to Muhammad Altaf through postal address. Prior to this incident, you had tried to contract applicant through middle man on 24 March, 2012 to settle this issue for gaining some illegal motives, which is clearly violation of SOP.

(c) Previously CNICF # ML 00635374 was processed as a fresh without any documents at the time of Data Entry Station by Abdul Rauf, DEO and you had written fake MNIC # 246-50-142975 by hand.

Accordingly you were issued warning but you did not give up such practice and again found-involved in subversive activities. Thus act displayed by you is highly objectionable and tantamounts to misconduct"

1. The petitioner filed an application dated 01.01,2013 requesting for the supply of certain documents which was not responded to. The petitioner received an office memorandum dated 06.06.2013 for personal hearing requiring him to appear before Director General on 06.02.2013. The petitioner appeared in the same but with the reservations, that he was not provided documents as requested for.

2. The case of the petitioner is that major penalty of dismissal from service was imposed upon by the respondents which was passed without holding a regular inquiry and recording of evidence which is in gross violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.

3. Report and Para-wise comments were filed by the respondents in which it was mentioned that under Rule 5(iii)(a)(b) of E&D Rules, 1973, if the authorized officer decides that it is not necessary to be an inquiry conducted, than the authority shall inform in writing the accused for the proposed action, to be taken against him after issuing show-cause notice.

4. Heard. Record perused.

5. The case of the petitioner squarely revolve around the principle of "due process of law" which has been enshrined in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. In support of his version, the petitioner has relied upon judgments of the Hon'ble Supreme Court of Pakistan in the cases of "Muhammad Haleem etc. vs. Director General Pakistan Railways etc." (2009 SCMR 339), "Tariq Mehmood vs. DPO Toba Tek Singh etc."(PLD 2008 S.C. 451) and "Saad Alam Ansari. vs. Chief Justice, Sindh High Court Karachi through its Registrar'' (PLJ 2009 S.C. 127) wherein it is held that the competent authority without holding regular inquiry and affording opportunity of hearing, cannot impose major penalty of removal from service merely on the basis that show-cause notice was issued and opportunity of personal hearing was afforded to the petitioner.

6. "Due process of law" has been recognized as a constitutional guarantee by most of the countries in their constitutions. In the Constitution of the Islamic Republic of Pakistan, 1973, through Eighteenth Amendment Act X of 2010, Article 10-A was added as a fundamental right. The concept of "due process of law" is already covered in Articles 4, 9, 10 and 25 of the Constitution of Pakistan, 1973 but Article 10-A has been specifically added as a fundamental law in the Constitution.

7. In the constitutional history of United Kingdom, Magna Certa was Introduced in year 1215, In clause 39 of the Magna Carta, it was provided that:--

"No free man shall be seized or imprisoned, or stripped of his rights or possession, or outlawed or exiled;, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land''.

1. Later the phrase '"due process of law" first appeared in a statutory form in 1354 during the reign of Edward III of England as follows:--

"No man of what state or condition he be, shall be put of his lands or tenements nor taken, nor disinherited, nor put to death? without he be brought to answer by due process of law.

1. "Due process of law" has been defined by Encyclopedia Britannica in the following term:--

"Due process. A course of legal proceedings according to the rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights. In each case, due process contemplates an exercise of power of government as the law permits and sanctions under recognized safeguards for the protection of individual rights,"

1. Perusal of the record indicates that in present case, fundamental right of the petitioner as guaranteed by Article 10-A of the Constitution has been violated and has been dismissed from service without resorting to the principle of due process of law. There is no substance in the arguments of the respondents that the regular inquiry under Rule (iii) of the Efficiency & Disciplinary Rules, 1973 was dispensed with as allegations against the petitioner were proved and established, The contention that opportunity of defence was provided to the petitioner in shape of personal hearing, is also not tenable in law. The record reveals that despite written request made by the petitioner, he was not provided with the requisite documents enabling him to offer any explanation or defence against proposed major penalty of removal from service.

2. Having fortified with he judgments passed by the Hon'ble Supreme Court of Pakistan and' internationally recognized doctrine of "due process of law" as referred above, mere issuance of show-cause notice and affording an opportunity of personal hearing was not suffice and the impugned order of dismissal from service passed by Respondent No. 3 is without lawful authority and same is set-aside. The respondents are directed to re-instate the petitioner in service with all back benefits, if the respondents deem it proper to further proceed against the petitioner, same can be done by way of initiating

de-novo inquiry and that too after holding a regular inquiry and providing an opportunity of fair trial as ordained in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. With these observations, instant writ petition stands allowed.

(R.A.) Petition allowed

PLJ 2015 Lahore 266

Present: Abdus Sattar Asghar, J.

Mst. SHAZIA NAHEED--Appellant

versus

PUBLIC AT LARGE, etc.--Respondents

F.A.O. No. 587 of 2014, decided on 27.10.2014.

Mental Health Ordinance, 2001--

----Ss. 32 & 33--Guardian and manager of lunatic/mentally disordered daughter--Subject to furnishing surety bond--Challenge to--Surety bond before cover of protection--Function was obliged to protect rights of mentally disordered person--Validity--There is no cavil to proposition that petitioner is bound to furnish surety bond to satisfaction of Court of Protection--Vires of order were never challenged by petitioner--Surety would be adequated and acceptable to Court--In impugned order Court of Protection being conscious of its duty to safeguard rights of mentally disordered girl and exercising its discretion in appropriate and judicious manner has clearly expressed his reservation with regard to propriety and suitability of surety and thus declined to accept same--Appeal was dismissed. [P. 269] A

Mr. MuhammadAzam Chughtai, Advocate for Appellant.

Date of hearing: 27.10.2014.

Order

This first appeal under Section 46 of the Mental Health Ordinance, 2001 is directed against order dated 22.9.2014 passed by learned District Judge Lahore.

1. Arguments heard. Record perused.

2. Shorn of unnecessary details brief facts important for the decision of this appeal are that learned Court of Protection taking proceedings on a petition under Sections 32 & 33 of the Mental Health Ordinance 2001 vide order dated 29.5.2014 appointed the appellant as guardian and manager of her lunatic/mentally disordered daughter namely Zainab Bandey subject to furnishing surety bond in the sum of Rs. 500,000,00/- to the satisfaction of the said Court within one month. The appellant being dis-satisfied with the order of surety assailed the same before this Court through FAO No. 438-2014 with the following prayers:--

"In view of the foregoing it is respectfully prayed that the impugned order dated 29.05.2014 may kindly be modified and the demand of surety of' Rs. 5,00,00,000/- may kindly be dispensed with.

It is further prayed that Respondent No. 2 may graciously be directed to issue certificate of guardianship and manager of property on furnishing of personal guarantee by appellant, in best interest of justice.

Further in the given circumstances, any other relief which this Honourable Court deem fit and appropriate may also be granted."

The said FAO was disposed of by this Court vide order dated 25.7.2014 in the following manner:--

"After arguing the case at some length, learned counsel for the appellant has drawn my attention to an agreement which has been arrived at between the legal heirs of the deceased, according to which, an amount of Rs. 27,500,000/- is to be paid to the patient (Mst. Zainab Bandey). In this view of the fact, learned counsel contends that the amount of surety which has been asked by the Court of Protection should be reconsidered.

1. Keeping in view the above development, learned counsel is directed to approach the Court of Protection highlighting the subsequent event so that the amount of surety can be rateably reduced. With these observations, this appeal is disposed of."

In view of the direction of this Court the learned Court of Protection reduced the surety amount to the tune of Rs. 27,500,000/-through order dated 04.9.2014 as under:--

"2. Learned counsel submits that mentally disable girl will inherit her share from the assets left by her deceased father, being one of his legal heirs and the matter is pending before Civil Court, Lahore. Further submits that all the legal heirs have decided to settle their dispute amicable and have entered into a compromise, by dint of which the share of mentally disable girl comes to Rs. 2,75,00,000/- two crores and seventy five lacs). Learned counsel prays that amount of surety may be reduced to the extent of share of mentally retarded girl.

1. I have heard learned counsel for the petitioner and have also gone through the available record.

2. The petitioner has also placed on record copy of agreement arrived at between legal heirs of Tariq Badar-ud-Din Banday, This Court, being the Court of Protection, has to safeguard the rights and interest of mentally disable girl to the extent of her share. Even otherwise, none has turn up to refute the claim of the petitioner, hence, the application is accepted and petitioner is directed to submit surety bond to the tune of Rs. 2,75,00,000/- (two crores and seventy five lacs) within one month, in terms of order dated 29.05.2014 of passed by this Court. This order shall be read as integral part of order dated 29.05.2014 of this Court."

The appellant submitted the surety bond before the Court of Protection on 22.9.2014 which was declined through impugned order dated 22.9.2014 in the following manner:--

"2. The petitioner has submitted surety bond, which reveals that one 'Sardar Muhammad Hasam-ud-Din Khosa intends to stand as surety for the petitioner. Although the surety has shown his address of Lahore yet the property of the proposed surety stands located in Dera Ghazi Khan. The petitioner is resident of Lahore and all the movables and immovable, except one plot, left by deceased father of mentally retarded girl, stand located in Lahore and none of those properties falls within the bounds of District Dera Ghazi Khan. To safeguard the rights of mentally disable girl, it is not safe and proper to allow instant surety, which is hereby declined. Original surety bond be returned to petitioner and its copy be retained on the main file. However, the petitioner may submit fresh local surety."

1. Right to life and property is a fundamental right guaranteed under Articles 4, 9 & 23 of the Constitution of Islamic Republic of Pakistan 1973. Preamble of the Mental Health Ordinance 2001 clearly manifests the spirit of its legislation i.e. 'to consolidate and amend the law relating to the mentally disordered persons with respect to their care and treatment, management of their property and other related matters'. The Court constituted under the Ordinance (ibid) is defined as Court of Protection under Section 2(d) which reads below:--

"Court of Protection" means a District Court having jurisdiction under this Ordinance in matters specified herein and designated as such by the Government."

A Court performing its functions under the Ordinance therefore is obliged to protect the rights of a mentally disordered person in accordance with law.

1. There is no cavil to the proposition that petitioner is bound to furnish the surety bond to the satisfaction of the Court of Protection in terms of order dated 29.5.2014 as modified vide order dated 04.9.2014. The vires of order dated 04.9.2014 were never challenged by the petitioner. Needless to say that the expression 'satisfaction of the Court' clearly manifests that the surety should be adequate and acceptable to the Court. In the impugned order the Court of Protection being conscious of its duty to safeguard the rights of mentally disordered girl and exercising its discretion in appropriate and judicious manner has clearly expressed his reservation with regard to the propriety and suitability of the surety and thus declined to accept the same. I have no reason to take any exception to the findings of the learned Court of Protection.

2. For the above reasons I do not find any jurisdictional error, factual or legal infirmity in the impugned order passed by learned Court of Protection. This appeal therefore having no merit is dismissed in limine.

(R.A.) Appeal dismissed

PLJ 2015 Lahore 269 (DB)

Present: Muhammad KhalidMahmood Khan and Ibad-ur-Rehman Lodhi, JJ.

SH. MUHAMMAD MAHMOOD & 2 others--Appellants

versus

KALEEM-UD-DIN & 6 others--Respondents

Regular First Appeal Nos. 540, 556 of 2006, heard on 29.5.2014.

Partition of Joint Properties--

----Preliminary decree passed by trial Court was challenged--Punchayat got signatures on blank paper--Partition of properties--Rights of legal heirs of deceased--Neither separate appeal or cross objection challenging of property mentioned in plaint was filed--Report of local commission--Validity--Properties were joint in nature in between parties to suit and preliminary decree passed by trial Court determining shares of parties and identifying joint properties, has been passed in accordance with law and appeals filed there against have no merits--Local commission was directed to report as to whether properties, which were held as joint properties amongst parties to suit, were liable to be partitioned or not--Properties were liable to be partitioned and it was not job of local commission to determine liability of properties to be partitioned--Local commission is to see partability or otherwise of joint properties according to their respective shares; therefore, such reference was modified. [Pp. 272 & 273] A, B & C

Mr.Waqar-ul-Hassan Butt, Advocate for Appellants.

Agha Nayyar Latif, Advocate for Respondents.

Date of hearing: 29.5.2014.

Judgment

Ibad-ur-Rehman Lodhi, J.--This appeal as also RFA No. 556 of 2006 are to be disposed of together, as judgment and decree dated 19.07.2006 (the date "21.09.2006" was signed by the learned trial Judge in the decree-sheet), has been challenged in both the appeals.

1. A suit for partition was filed by Respondent No. 1 on 19.06.1999, seeking partition of joint properties, detail hereunder:-

(i) House Nos. 156, 157, 158, 159, situated in Block-C, Gulshan-e-Ravi, Lahore.

(ii) Shop No. 386, situated at Pakistan Cloth Market. Lahore.

(iii) House No. F-2397, situated in Chuna Mandi, Lahore.

(iv) Shop No. 49, Pakistan Cloth Market, Lahore (3/4 share).

(v) 1/6th Commercial and residential share of Chamber Lane Road, Lahore.

claiming that Sheikh Iqbal Hussain, who at the time of his death., left the suit properties as his estate was survived through the parties to the partition suit, being legal heirs of deceased, who were entitled to their shares i.e. 1/6th to each son of Sheikh Iqbal Hussain, whereas, 1/12th to each daughter of said Sheikh Iqbal Hussain.

1. A Punchayat was also referred as has been held with regard to the partition of the estate of Sheikh Iqbal Hussain amongst the parties to the suit and a writing arrived at by that Punchayat was also placed on record, whereby, rights of all the legal heirs of deceased Sheikh Iqbal Hussain were accepted by each of them.

2. Defendants No. 1, 4 and 5 contested the suit by filing their written statement and also pleaded collusion of the plaintiff with Defendants No. 2, 3, 6 and 7. Regarding House No. 157 and 159, situated in Gulshan-e-Ravi, Lahore, Defendants No. 1 and 4 claimed to have purchased by their own capital and, as such, according to their version, these houses were out of the joint pool of the estate left by Sheikh Iqbal Hussain. Regarding other properties, only possession of some defendants was pleaded, but without any exclusive title thereof.

3. The learned trial Court, after trial, passed a preliminary decree on 19.07.2006, whereby the respective shares of the parties to the suit were determined and joint properties were identified by exclusion of the property noted as against 2(iv) in the plaint and a local commission was appointed to give a report, after inspection of the suit properties, subject-matter of the partition, not only with regard to their market value but also their partability or otherwise.

4. Defendants No. 1, 4 and 5, who contested the suit, challenged the preliminary decree as was passed by the learned trial Court by means of the present appeals.

5. The plaintiff or other defendants, however, neither has filed any separate appeal of cross-objection challenging the exclusion of property mentioned at Serial No. 2(iv) in the plaint from the effect of preliminary decree passed by the learned trial Court.

6. In support of the appeals, the learned counsel for the appellants has reiterated his version as was taken in the written statement, whereas, the preliminary decree has been defended by the respondents.

7. Ex.P.1 is a document, which was admittedly written by die elder of the family, namely, Haji Abdul Ghafoor, wherein all the joint properties, left by Sheikh Iqbal Hussain, were subject-matter of the considerations and deliberations made by the said Punchayat, wherein, it has specifically been noted that all the five brothers have consented to the partition of the properties mentioned therein. This document contains signatures of all the legal heirs of deceased Sheikh Iqbal Hussain, including the contesting defendants; however, they have tried to Wriggle out from their signatures over the said document by stating that their signatures were obtained on a blank paper, whereas, neither from any other evidence nor from perusal of Ex.P.1, such stance of the said defendants got any support.

8. PW.1-Saeed Ahmad, when appeared in the witness box, was cross-examined by the contesting defendants and during that process, on a question put by the cross-examiner, said witness made a statement that for purchase of the suit properties, father of the parties to the suit i.e. Sheikh Iqbal Hussain, provided all finances. Such stance brought on record during process of cross-examination is meaningful and depicts the case of the defendants; therefore, it would be deemed as an admission by the defendants in regard to each property, subject-matter of the suit. It was Sheikh Iqbal Hussain, predecessor-in-interest of the parties to the suit, who invested and, thus, after his death, same became a part of the joint pool of the properties, to be partitioned amongst the parties to the suit according to their respective shares.

9. Muhammad Mahmood-Defendant No. 1 appeared as DW.4 and in acceptance of Ex.P.1, findings of the Punchayat, deposed as under:--

"یہ درست ہے کہ والد صاحب کی وفات کے بعد پنچائیت ہوئی تھی۔ جو کے Ex.P.1ہے اور اس پر میرے دستخط Ex.P.1/2 ہے"

1. Sheikh Shabbir Ahmad, Defendant No. 3, although filed a conceding written statement, but subsequently by resiling from the said concession, appeared in the witness box as DW.5 and made a statement completely in negation to his version taken in the written statement.

According to the principles of pleadings and evidence, his such stance, which is violative to his own pleadings, cannot be looked into, even after resiling from his stance taken in the written statement, when he appeared as DW.5 has made some disclosures, which are relevant. He admitted that the elders, who assembled as a Punchayat got the signatures of the parties on a blank paper and Ex.P.1 was admitted as that of such blank paper. He further stated that the members of said Punchayat reduced their decision on some other paper, which will be produced late on (however it is a fact that no other paper was produced by any of the defendants). With regard to the commercial property, this witness admitted in clear terms that the same was still in the name of his father.

1. From the evidence available on record, it is thus clear that properties mentioned at Serial No. 2(i), 2(ii), 2(iii), and 2(v) are joint in nature in between the parties to the suit and the preliminary decree passed by the learned trial Court determining the shares of the parties and identifying the joint properties, has been passed in accordance

with law and the appeals filed there against have no merits. The same are, therefore, dismissed by maintaining the preliminary decree.

1. The learned trial Court is directed to proceed with the matter from the stage, when it was stopped and a local commission be directed to proceed with the directions, as were noted in the impugned judgment.

2. We are going to modify the reference noted at Serial No. 2, whereby the local commission was directed to report as to whether the properties, which were held as joint properties amongst the parties to the suit, were liable to be partitioned or not. The learned trial Court has, itself, held that the said properties were liable to be partitioned and it was not the job of the local commission to determine the liability of the properties to be partitioned. The local commission is to see' the partability or otherwise of the joint properties according to their respective shares; therefore, such reference is modified and would be read as under:--

"Whether the properties mentioned-above are partable or otherwise and if partbale, the mode of partition be also suggested alongwith the plan according to shares of the parties".

1. With these observations, both the appeals stand dismissed

(R.A.) Appeals dismissed

PLJ 2015 Lahore 273

Present: MuhammadFarrukh Irfan Khan, J.

MUHAMMAD NASIR IQBAL KHAN--Petitioner

versus

BEGUM NAEEMA KHANUM (deceased) through her Legal Representatives and others--Respondents

W.P. No. 17683 of 2014, decided on 30.9.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Request to confront receipt exhibited in statement was turned down--Challenge to--Interlocutory order against writ petition was not maintainable--Confront receipts had neither issued receipts nor bear signatures--Validity--It is settled principle of law that only that document can be put in cross-examination to a witness who had executed same or it bears his signature--In absence of any such eventuality, Rent Tribunal rightly declined petitioner to confront said documents and while doing so it has not committed any illegality or irregularity calling for interference by High Court in its constitutional jurisdiction--Petition was not maintainable against an interlocutory order. [P. 275] A, B & C

PLD 2009 SC 45 & 1990 SCMR 1165, ref.

Mr.Waqar ul Hassan Butt, Advocate for Petitioner.

Mehr M. Iqbal, Advocate for Respondents.

Date of hearing: 30.9.2014.

Order

The petitioner is aggrieved of the order of the learned Rent Tribunal dated 14.06.2014 whereby his request to confront various receipts to RW2 duly exhibited in the statement of AW4 was turned down.

1. Learned counsel for the petitioner submits that the learned Rent Tribunal erred in law while passing impugned order; that the receipts which were exhibited in the statement of AW4 were allegedly issued in the presence of RW2, therefore, in order to determine veracity thereof, it was necessary to confront the same to the said witness; that in order to prove the payment of rent, the petitioner is required to prove said receipts, otherwise, he shall suffer irreparable loss; that the learned Rent Tribunal without adverting to this aspect of the matter passed the impugned order which is not sustainable in the eye of law.

2. Conversely, learned counsel for respondents submits the impugned order is an interlocutory order against which writ petition is not maintainable; that the person to whom the petitioner wishes to confront various receipts had neither issued the said receipts nor the same bear his signatures as such the learned Rent Tribunal has rightly turned down request of the petitioner to confront said receipts to this witness and there no occasion arises for this Court to intervene with the same in its Constitutional jurisdiction.

3. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

4. It is settled principle of law that only that document can be put in cross-examination to a witness who had executed the same or it bears his signature. It is an admitted fact that RW2 to whom the petitioner wishes to confront various receipts already exhibited in the statement of AW4 is neither the scribe of said receipts nor they bear his signatures. Furthermore, it was no where the case of respondents that the said receipts were issued in the presence of RW2. In the absence of any such eventuality, learned Rent Tribunal rightly declined the petitioner to confront said documents to RW2 and while doing so it has not committed any illegality or irregularity calling for interference by this Court in its Constitutional jurisdiction.

5. Besides, the order impugned in this Constitutional petition is an interim order and in view of the law laid down by the Hon'ble Apex Court in cases reported as Mst. Seema Begum vs. Muhammad Ishaq and others (PLD 2009 Supreme Court 45) and Syed Saghir Ahmad Naqvi vs. Province of Sindh through Chief Secretary, S & GAD, Karachi and another (1996 SCMR 1165) writ petition is not maintainable against an interlocutory order.

6. Resultantly, this petition fails and dismissed accordingly.

(R.A.) Petition dismissed

PLJ 2015 Lahore 275

Present: MuhammadFarrukh Irfan Khan, J.

MERAJ DIN and another--Petitioners

versus

MUHAMMAD AZAM and 2 others--Respondents

W.P. No. 29695 of 2012, decided on 13.10.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional ejectment petition--Legal heirs has valid title over demised premises--Demised premises was shamlat-e-deh--Relationship of landlord and tenant, proved of--Possession in--Validity--It is an admitted fact that in order to establish their claim they filed an independent suit for declaration which has been dismissed for non-production of evidence--Merely on basis of electricity and sui gas bills petitioners cannot legitimize their possession over demised premises as owners because a tenant can also get installed such connections in his/her name--It is evident from material available on record that presently respondent alongwith others had a valid title of demised premises and in absence of anything contrary to it, petitioner's possession over it would be presumed as being a tenant--Evidence available on record has rightly arrived at a conclusion that relationship of landlord and tenant exist between parties and petitioners is unable to persuade High Court to take a contrary view--Petition was dismissed.

[Pp. 277 & 278] A, B, C & D

Mr.Waqar-ul-Hassan Butt, Advocate for Petitioners.

Mr. M.Faheem Bashir, Advocate for Respondent No. 1.

Date of hearing: 13.10.2014.

Order

The petitioners are aggrieved of the judgment of the learned Addl. District Judge, Lahore dated 16.10.2012 whereby the said Court while allowing the appeal of Respondent No. 1 against the judgment of the learned Rent Tribunal dated 26.07.2011, accepted the ejectment petition and directed the petitioners to vacate the demised premises within 60 days.

1. Briefly stated facts of the case are that Respondent No. 1 filed a petition against the petitioners for their eviction from the demised property fully described in Para No. 1 of the petition. Petitioners contested the said application and totally denied existence of relationship of landlord and tenant. Out of the divergent pleadings of the parties, learned Rent Controller framed following issues:-

2. Whether there exist relationship of tenant and landlord between the parties ? OPA

3. Relief.

4. Both the parties adduced evidence qua their respective claims and after hearing the arguments, learned Rent Controller proceeded to dismiss the ejectment petition filed by Respondent No. 1 vide judgment dated 26.07.2011. Being aggrieved respondent filed appeal before the learned lower Appellate Court which was accepted vide impugned judgment dated 16.10.2012. Hence, this Constitutional petition.

5. Learned counsel for the petitioner submits that the impugned judgment of the learned Appellate Court is result of mis-reading and non- reading of the evidence; that Respondent No. 1 could not establish relationship of landlord and tenant between the parties; that the demised premises is not owned by respondent and it is Shamlat-e-Deh and the petitioners are in possession thereon since the year 1960; that the utility bills of the demised premises are in the names of their predecessor which show petitioner's longstanding possession over the same; that the learned Rent Controller after due appreciation of the material available on record had rightly arrived at a conclusion that relationship of landlord and tenant did not exist between the parties which has illegally been set-aside by the learned lower appellate Court; that the evidence in this case has not been properly evaluated by the learned lower appellate Court and the conclusion drawn therefrom is liable to be set-aside.

6. Conversely, learned counsel for Respondent No. 1 submits that the impugned judgment of the learned lower appellate Court is well reasoned; that the respondent through cogent and reliable evidence successfully proved existence of relationship of landlord and tenant between the parties; that the petitioners could not prove their stance that the demised premises is Shamlat-e-Deh and they are in possession thereupon since the year 1960; that the petitioners filed a suit for declaration in this regard which has been dismissed due to non-production of evidence; that Respondent No. 1 alongwith other legal heirs has a valid title over the demised premises as such the learned Appellate Court has rightly passed the impugned judgment which need no interference by this Court in its Constitutional jurisdiction.

7. I have heard the arguments of the learned counsel for the parties and gone through the record.

8. It was the claim of the petitioners that the property in dispute is Shamlat-e-Deh and they are in its occupation since the year 1960, however, they have miserably failed to establish this claim through any cogent and confidence inspiring evidence.' It is an admitted fact that in order to establish their claim they filed an independent suit for declaration which has been dismissed on 08.06.2010 for non-production of evidence. On the contrary, Respondent No. 1 in order to establish his claim over the demised premises besides producing Fard Jammabandies Ex.A3 and Ex.A4 also tendered Form PT-10 Ex.A1 and receipts of payment of property tax Ex.A5 and there is nothing on record in their rebuttal. Merely on the basis of electricity and sui gas bills etc. the petitioners cannot legitimize their possession over the demised premises as owners because a tenant can also get installed such connections in his/her name. It is evident from the material available on record that presently Respondent No. 1 alongwith others have a valid title of the demised premises and in the absence of anything contrary to it, petitioner's possession over it would be presumed as being a tenant. Reliance is placed on case reported as Shajar Islam vs. Muhammad Siddique and

2 others (PLD 2007 Supreme Court 45) wherein it has been laid down as under:--

"The determination of the pivotal question related to the legal status of the parties vis-a-vis the premises and the nature of their relationship inter se, would certainly be a mixed question of law and fact to be decided in the light of the evidence. The title of the petitioner is not as such disputed and in absence of any evidence in rebuttal, there would be a strong presumption of existence of tenancy between the parties."

1. The learned Appellate Court after due appreciation of the evidence available on record has rightly arrived at a conclusion that relationship of landlord and tenant exist between the parties and learned counsel for the petitioners is unable to persuade this Court to take a contrary view. Resultantly, this petition being without any substance is dismissed. The petitioners are directed to hand over vacant possession of the demised premises to Respondent No. 1 within 30 days from the date hereof.

(R.A.) Petition dismissed

PLJ 2015 Lahore 278 [Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

NOOR MUHAMMAD--Petitioner

versus

VICE-CHANCELLOR, BAHAUDDIN ZAKRIYA UNIVERSITY, MULTAN and 2 others--Respondents

W.P. No. 13141 of 2014, decided on 22.10.2014.

Educational Institution--

----Student of B.S. Zoology--Prerequisite for admission to M. Phil was to qualify an entry test--Final result of B.S. Zoology was awaited--University issued certificate that he had completed his cause work and was waiting for his result--Name was not figured in merit list issued by university--Challenge to--Validity--Result of entry test was delayed so that students who had already appeared for their final examination in B.S. Zoology, but were held up and hamstrung on account of their result not having been declared could be accommodated--Student who was to fail in his final B.S. Zoology result to be announced on would have been eliminated/weeded out automatically and even if he had qualified his entry test it would not have got him anywhere--No credit could be awarded to petitioner, who in violation of instructions both ticked and encircled his answers on paper--Paper was evaluated and assessed by a subject specialist, who was specially sent for from University for that purpose--If any value is to be attributed, it would render null and void entire entry test held by respondents--Resultantly, process of admissions would have to start all over again--Since disputed questions of facts are involved, writ petition is liable to be dismissed right away. [Pp. 281, 282 & 283] A, B, C, D, E & F

Mr.Fakhar Raza Malana, Advocate for Petitioner.

Mr.Khanzada Azmat Ali, Advocate for Respondents.

Date of hearing: 22.10.2014.

Judgment

Noor Muhammad, the petitioner filed this petition, contending that he was a student of B.S. Zoology. He was admitted to 4-year programme in 2010. He appeared for his last paper in genetics on 26.8.2014. He intended to pursue higher studies and aimed at his admission to M. Phil Zoology. The prerequisite for admission in M. Phil Zoology was to qualify an entry test, which was due to be held on 27.8.2014, while the first merit list was to be displayed on 5.9.2014. As things stood, the final result of B.S. Zoology was scheduled to be announced on 29.8.2014. Against this backdrop, the Director Institute of Pure and Applied Biology Department of Zoology, Baha-ud-Din Zakriya University, Multan, Respondent No. 2, who is also overall incharge of M. Phil Zoology, issued the petitioner a certificate, confirming that he has completed his course work and is waiting for his result. This was a ticket for the petitioner to take the entry test for M. Phil Zoology on 27.8.2014. He is stated, to have secured 40 Marks out of 50. Ordinarily, he deserved to be admitted to M. Phil Zoology, but he was astonished, flabbergasted, shocked and dismayed to see that his name did not figure in the merit list issued by the respondents. In the meantime, the petitioner filed W.P. No. 12411-2014 which came up for hearing on 12.9.2014. His writ petition was transmitted to the Vice Chancellor, Baha-ud-Din Zakriya University, Multan who was to treat the same as a representation made by the petitioner, deciding the same by making a speaking order within a period of seven days. Baha-ud-Din Zakriya University, Multan gave an audience to the petitioner, but turned down his pleas by making a detailed order dated 22.9.2014.

1. Feeling aggrieved by the order dated 22.9.2014 passed by the Vice-Chancellor, Baha-ud-Din Zakriya University, Multan, Respondent No. 1, the petitioner has filed this petition, recounting the above facts and praying that the order dated 22.9.2014 be set aside, thereby ordering the Vice-Chancellor, Baha-ud-Din Zakriya University, Multan, Respondent No. 1 to admit him to M. Phil Zoology.

2. The respondents sent in Para-wise comments, maintaining that at the time of the petitioner's taking the entry test, he had not yet qualified B.S. Zoology, and without fulfilling this condition precedent, he could not make any claim on the basis of the result of the entry test. It is further averred in the comments that the petitioner had cheated in the entry test and as he both ticked and encircled his answers, he deserved to be awarded zero marks. As such he flunked the entry test. The respondents have also raised the preliminary objection that the writ petition is not maintainable inasmuch as the question at issue involves the resolution of a factual controversy. On the basis of these averments and assertions, the respondents have sought the dismissal of the writ petition.

3. In support of the petition, the learned counsel for the petitioner has reiterated the contentions raised in the writ petition. It has been alleged by him that the final result of the petitioner was deliberately withheld by the respondents, forcing him to file W.P.No. 12411-2014. He has also invited the attention of the Court to the result of the entry test in which the petitioner is shown to have obtained 40 out of 50 marks, while a candidate securing 50% would have qualified it. In other words, any candidate who got 25 marks qualified the test. It was emphasized by him that the paper in question was judged, assessed and evaluated by Dr. Tahira Ruby, Assistant Professor, Department of Life Sciences, Islamia University, Bahawalpur, who is the subject expert.

4. On the other hand, the learned counsel for the respondents took the Court through various documents annexed to the comments furnished by the respondents to urge that the conduct of the petitioner is such that he should not be allowed to join the higher studies. Allegedly he was involved in a criminal case. He is also alleged to have committed fraud in solving the paper of entry test. According to him, going by the rules, the petitioner deserved to be awarded zero marks in the entry test. He elaborates that since the petitioner had not passed his final examination in B.S. Zoology, he stood disqualified for applying for admission to M. Phil Zoology from day one. He vehemently commented upon the past results of the petitioner for various years, emphasizing that the petitioner is not so bright a student as he is trying to make himself out.

5. I have heard the learned counsel for the parties and perused the documents with their assistance.

6. It is undeniable and incontrovertible that the 'petitioner appeared for his final paper in B.S. Zoology on the 26l August, 2014. As per the revised admission schedule for M. Phil Programme (fall 2014), the applicants were to file applications by 26.8.2014 at the latest, while departmental test/entry test was to be held on 27.8.2014. The merit list was to be displayed on 5.9.2014. On the other hand, the result of summer semester 2014, the- examination whereof was held on 26.8.2014, was due to be announced on 29.8.2014. It has not been denied by the respondents that Dr. Seema Mahmood, Director Institute of Pure and Applied Biology Department of Zoology, Baha-ud-Din Zakriya University, Multan had issued a certificate to the petitioner, testifying that he had completed his course work and he was waiting for his result. The very wording in which the certificate issued by respondent is couched leaves no room for doubt that the same was issued, subsequent to the petitioner's appearing for his final paper in genetics on 26.8.2014, which incidentally was also the last date for receipt of applications for admission to M. Phil Programme. The question is that when the entry test was held on 27.8.2014, why was the result not scheduled to be announced forthwith and the examinees/applicants were to wait until 5.9.2014? It does not take a seer to come to the conclusion that the result of the entry test was delayed so that the students who had already appeared for their final examination in B.S. Zoology, but were held up and hamstrung on account of their result not having been declared until 29.8.2014, could be accommodated It goes without saying that a student who was to fail in his final B.S. Zoology result to be announced on 29.8.2014 would have been eliminated/weeded out automatically and even if he had qualified his entry test it would not have got him anywhere. In short, in that event he was to be outside the arena, and his name need not figure in the merit list of the selected candidates to be displayed on 5.9.2014.

7. I am not impressed by the argument made on behalf of the respondents that the petitioner was supposed to have qualified in B.S. Zoology on 26.8.2014 before his applying for M. Phil Zoology on that day. Had it been so, he would not have been allowed to take the entry test in the first instance. Furthermore, Respondent No. 2 would not have issued him a certificate, enabling him to enter the arena. In order to justify their stand, the respondents appear to be indulging in sophistry. Their argument is plainly unsound and untenable and is not supported by the material produced by them.

8. This brings me to the argument made by the learned counsel for the respondents that no credit could be awarded to the petitioner, who in violation of the instructions both ticked and encircled his answers on the paper. As noted hereinabove, the paper was evaluated and assessed by a subject specialist, who was specially sent for from Islamia University, Bahawalpur for this purpose. It has not been alleged that she blithely or deliberately favoured the petitioner. She was selected by the Vice Chancellor, Baha-ud-Din Zakriya University, Multan, Respondent No. 1 on 25.8.2014, and she was the expert member on the Test Committee constituted for admission to M. Phil Zoology. The relevant portion of Letter No. Biol. 1005/14 dated 25.8.2014 singed by Respondents Nos. 1 & 2 is extracted and reproduced hereunder for ready reference:--

"Constitution of M. Phil/PH.D Botany And Zoology Test Committee

M. PHIL ZOOLOGY

1. Prof. Dr. Seema Mahmood Convener

2. Dr. Tahira Ruby, Assistant Professor of Zoology, Deptt. Of Life Sciences, Islamia University, Bahawalpur Subject Expert/ Member

3. Prof. Dr. Aleem Ahmad Khan Member"

4. It is too late in the day to question the wisdom, acumen and probity of Dr. Tahira Ruby, the subject expert, who awarded 40 marks to the petitioner out of 50. It bears repeating that a candidate who obtained 50% marks (25 marks) was to be declared successful. To say that the petitioner flunked the entry test flies in the face of facts.

5. I am of the considered opinion that Dr. Seema Mahmood, Director Institute of Pure and Applied Biology Department of Zoology, Baha-ud-Din Zakriya University, Multan, did not act justly, fairly and equitably. She went to the extent of discrediting the subject specialist, namely, Dr. Tahira Ruby with the. object to keep the petitioner out of arena, which is evident from the letter dated 1.9.2014 addressed by Prof. Dr. Saeed Ahmad Malik, Dean, Faculty of Sciences/Observer, Departmental Committee for Admission Test in M. Phil & Ph.D. to her. I would hasten to add that the aforesaid letter is annexed to the comments furnished by the respondents. A perusal of the letter is quite revealing. It seems that the respondents had already made up their mind to disqualify the petitioner. If any value is to be attributed to the aforesaid letter dated 1.9.2014, it would render null and void the entire entry test held by the respondents. Resultantly, the process of admissions would have to start all over again.

6. In conclusion, I would like to address the objection raised by the respondents that since the disputed questions of facts are involved, this writ petition is liable to be dismissed right away. I am unable to accept this argument. As is crystal clear from the facts narrated in the foregoing paragraphs, there is no dispute about the primary and core facts. It is another matter that the respondents are not willing to face up to them.

7. For what has been stated above, this petition is allowed and the respondents are directed to grant the petitioner admission to M. Phil. Zoology without any loss of time, and without disturbing the admission of any student, who has already been declared qualified and is studying in M. Phil Zoology classes.

(R.A.) Petition allowed

PLJ 2015 Lahore 283

Present: Shezada Mazhar, J.

TARIQ FAREED--Petitioner

versus

FEDERATION OF PAKISTAN through its Secretary, Ministry of Inter Provincial Co-ordination, Lahore and 2 others--Respondents

W.P. No. 30935 of 2014 and C.M. No. 2949 of 2014, decided on 28.11.2014.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), O. I, R. 10--Constitutional Petition--Constitution of PCB--Without disclosing facts had challenged once again provision of PCB constitution--Application filed u/O. I, Rule 10, CPC was treated as writ petition--Not party to earlier proceedings was of no significance--Petition was dismissed with cost--Validity--If such reprehensible conduct is ignored as in present case, Court would be failing in its duty to protect interest of bona fide litigants and its own process--Petitioner and other litigants will exercise utmost care in future and respect rights of bona fide litigants, who are actual stakeholders of justice system. [P. 286] A

Rao Muhammad Faisal Iqbal, Advocate for Petitioner.

MessrsTaffazul Haider Rizvi and Haider Ali Khan, Advocate for Respondent/PCB.

Mr. Abdul Razzaq Rajab, Advocate for Applicant (in C.M. Nos. 2949 and 2950/2014).

Date of hearing: 28.11.2014.

Order

At the very out-set, the learned counsel appearing on behalf of the petitioner states that he does not want to press the writ petition. In this view of the matter, the writ petition stands dismissed as withdrawn.

1. CM No. 2949/2014 has been filed by the applicant namely Haseeb Ullah Shahid son of Abdul Majeed, President Muslim Gymkhana Cricket Club, Bughdadi Park Gulberg-A, Faisalabad under order 1 Rule 10, CPC for becoming party to the present writ petition.

2. When the learned counsel appearing on behalf of the petitioner sought permission to withdraw the main petition, the learned counsel for applicant requested that his application under Order 1 Rule 10, CPC be treated as separate writ petition. He further states that he has already affixed requisite Court fee on the application, therefore, there is no legal impediment in the way of this Court to treat the application of the petitioner as independent writ petition.

3. On the request of learned counsel for the applicant, the application filed under Order 1 Rule 10, CPC is treated as writ petition. Office is directed to number it accordingly.

4. The learned counsel for the petitioner was asked to argue the petition. He submits that Pakistan Cricket Board constitution has been impugned in the writ petition. He further states that the petitioner is aggrieved of the different clauses of the constitution of PCB wherein the restrictions have been made on the independence of the election commission of PCB and due to that provision the election commissioner has become a dummy body and all powers are with the Chairman of PCB. The relevant Paras of application under Order 1 Rule 10, CPC/writ petition art re-produced hereunder:--

"That the provisions of PCB Constitution are impugned in the titled writ petition and the petitioner is also aggrieved from the same and any decision in the titled writ petition also effect the petitioner because the applicant club is governed by the PCB Constitution and the paragraphs impugned in the titled writ petition are very much relevant and heave binding effect upon the petitioner club.

That the petitioner as stated above is also aggrieved from the clauses of the constitution of PCB where the restrictions, have been made on the independence of the Election commissioner, PCB and due to that provisions, the Election Commissioner, PCB has become a dummy body and all the powers are with the Chairman and Governing Body, PCB who are elected from the vote of the clubs indirectly".

Further states that this Court in M/O IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573) has already held that demarcation cannot be carried out by the body who is to be elected.

1. On the other hand, learned counsel appearing on behalf of PCB states that the Hon'ble Supreme Court of Pakistan in M/O IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573) has already upheld the provisions of the constitution of PCB and the petitioner without disclosing this fact has challenged once again the provision of the PCB constitution. He further referred to the judgment dated 19.08.2014 passed in W.P.No. 3644/2014 by Islamabad High Court wherein the petitioner 'in the said writ petition also challenged the provisions of the PCB Constitution and the same was dismissed by the Islamabad High Court with special costs. Learned counsel further relying upon Bashir Ahmad v. Abdul Hameed and another (PLD 1984 SC 95) stats that respondents are trying to re-open the matter once again which is prohibited. Seeks dismissal of the application/petition with heavy costs.

2. Arguments heard. Record perused.

3. Perusal of Paragraphs No. 5 & 7 of the writ petition reveals that the petitioner has challenged the provisions of the constitution which has already been upheld by the Hon'ble Supreme Court of Pakistan in M/O IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573) as well as Islamabad High Court in W.P.No. 3644/2014. The petitioner without disclosing the said facts challenged the Constitution of PCB issued vide Notification No. 4 14/2008-IPC-S-IIm dated 10.07.2014 again before this Court to obtain some favourable order from this Court. The objection that petitioner was not a party to the earlier proceedings is of no significance as he being President of a Cricketing club was well within knowledge about the proceedings carried out in relation to the PCB Constitution.

4. Therefore, this writ petition is dismissed with cost of Rs. 1,00,000/-which is to be paid to the PCB. The petitioner is directed to deposit said cost with the Deputy Registrar (Judicial) of this Court within two weeks from the date of order of this Court. The Deputy Registrar (Judicial) shall deposit the amount with PCB. The PCB, if it deems appropriate, may consider payment of the said amount to the Pakistan Blind Cricket Council.

5. Before parting with this order, it is pertinent to emphasize that it is always painful for a Court to impose heavy cost on persons seeking to invoke the extra ordinary jurisdiction of this Court. However, if such reprehensible conduct is ignored as in the present case, the Court would be failing in its duty to protect the interest of the bona fide litigants and its own process. It is expected that the present petitioner and other litigants will exercise utmost care in future and respect the rights of the bona fide litigants, who are the actual stakeholders of the justice system.

(R.A.) Petition dismissed

PLJ 2015 Lahore 285

Present: FaisalZaman Khan, J.

SAEED BABOO--Petitioner

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary Civil Secretariat, Lahore and 3 others--Respondents

W.P. No. 29526 of 2014, decided on 7.11.2014.

General Clause Act, 1897 (X of 1897)--

----S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Appointment on contract basis through recommendations made by PPSC--Contract was terminated--Appeal was also dismissed by Chief Secretary--Neither show-cause notice was issued nor an opportunity of hearing was given--Non-speaking order--Validity--Termination order was not qualified precondition as given in Section 24 of Act--No opportunity of hearing was provided by virtue of which, he could justify his position--Order was not fulfilled conditions as appellate authority had neither applied its independent mind nor had given his reason while deciding appeal of petition--No opportunity of hearing was provided--Order passed by appellate authority not sustainable. [Pp. 287 & 288] A, B & C

Mr.Pervaiz Inayat Malik, Advocate for Petitioner.

Ms.Asma Hamid, Asstt. A.G. on Court’s Call for Respondents.

Date of hearing: 7.11.2014

Order

Petitioner was appointed on contract basis through recommendations made by the Punjab Public Service Commission as Inspector in BS-16 in Directorate, General of Anti-Corruption Establishment Punjab, whereafter, he was issued a show-cause notice and thereupon his contract was terminated on 05.09.2013.

1. Feeling aggrieved, he filed an appeal before the Chief Secretary, Government of the Punjab which was dismissed vide order dated 14.03.2014, therefore, this petition.

2. Learned counsel for the petitioner submits that neither a show-cause notice was issued to the petitioner nor an opportunity of hearing was given to him by virtue of which he could have justified his position and in an arbitrary manner, the contract has been terminated. He submits that the order passed by the Appellate Authority is a non-speaking order and therefore, requires interference by this Court.

3. Conversely, learned Law Officer on Court's Call submits that in accordance with contract of service, the services of the petitioner has been terminated that too after inquiry, therefore, the order passed by the competent authority is with jurisdiction and in accordance with law as laid down in judgment reported as Muhammad Iqbal v District Police Officer, Sahiwal and another 2011 SCMR 534 & Brig. (R) Sajid Imtiaz Hussain v Secretary Ministry of Commerce and another 2013 PLC (CS) 1472.

4. I have heard the learned counsel for the parties and have gone through the record.

5. For convenience, the order passed by the Appellate Authority is reproduced:--

"I am directed to refer to your appeal dated Nil addressed to the Chief Secretary, Government of the Punjab, Lahore, on the subject noted above. After considering all aspects of your case, and keeping in view the terms and conditions of your Contractual appointment, the said appeal has been dismissed by the competent authority/Chief Secretary, vide orders dated 15.02.2014."

1. It is clear and obvious that order does not qualify the pre-conditions as given in Section 24-A of the General Clauses Act. Even otherwise, no opportunity of hearing was provided by the appellate authority to the petitioner by virtue of which, he could justify his position. An Appellate Authority is suppose to look into the following while passing an order:--

(a) Allegations against the employee;

(b) His reply thereto;

(c) If an inquiry is conducted, recommendations made in that inquiry;

(d) the order passed by the competent authority;

(e) the grounds raised in appeal; and

(f) independent findings rendered by the appellate authority

1. The above mentioned order does not fulfill the conditions mentioned above as the appellate authority has neither applied its independent mind nor has given "his" reasons while deciding the appeal of the petitioner. Moreover, no opportunity of hearing has been provided.

2. In view of what has been discussed above, I find the order dated 14.03.2014 passed by the appellate authority not sustainable, therefore, the same is set aside. The appeal of the petitioner shall be deemed to be pending before the appellate authority to decide it afresh keeping in view the above stipulation and after affording an opportunity of hearing, to the parties. This exercise shall be completed within a period of one month from the receipt of a certified copy of this order. In above terms, this petition is accepted.

(R.A.) Petition accepted

PLJ 2015 Lahore 288[Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

NASIR MEHMOOD and 2 others--Petitioners

versus

EX-OFFICIO JUSTICE OF PEACE, MULTAN etc.--Respondents

W.P. No. 5306 of 2014, decided on 13.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A, 22-B & 561-A--Quashing of order passed by Ex-officio Justice of Peace--Validity--Local police is required to record statement of petitioner and strictly proceed in accordance with law for redressal of grievance of petitioner"--Order impugned seems to be well versed and well reasoned, no illegality or infirmity in same has been pointed out by petitioner calling for interference by High Court in exercise of constitutional jurisdiction--However, further direction is issued to investigating officer to proceed with matter strictly in accordance with law and submit report to High Court. [P. 290] A

Mr. MuhammadShahid Khan Sherwani, Advocate for Petitioner.

Mr.Mazhar Jamil Qureshi,Assist Advocate General.

Mr. MuhammadBilal Butt, Advocate for Respondent No. 4.

Date of hearing: 13.5.2014.

Order

Through this Constitutional petition, filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C, petitioner has prayed for quashing of order dated 11.04.2014, passed by learned Additional Sessions Judge/ Ex-Officio Justice of Peace, Multan, on the application of Respondent No. 4 Muhammad Kashif son of Muhammad Bakhsh in terms of Section 22-A/22-B, Cr.P.C.

1. Learned counsel for the petitioner submits that earlier two FIRs stand registered against the Respondent No. 4 one at Police Station Muzaffarabad vide FIR No. 44 dated 22.01.2014 and second at Police Station Qutab Pur vide FIR No. 54 dated 24.01.2014. Further submits that instant petition under Section 22-A/22-B had been moved by the Respondent No. 4 just in order to blackmail the petitioner and to refrain him from persuasion of FIR No. 44 of 2014 and a counter blast of the said FIR. Learned Ex-Officio Justice of Peace had passed the impugned order in the mechanical manner without taking into consideration the facts which had been concealed by Respondent No. 4 in his application moved in terms of Section 22-A/22-B Cr.P.C who vide his order dated 11.04.2014 directed 'that this is not denying fact at the part of local police that present petitioner has previously moved application furnishing information for happening of cognizable offence. So in the circumstances, the local police is required to record the statement of petitioner and strictly proceed in accordance with law for redressal of grievance of the petitioner.

2. On the other hand, learned Assistant Advocate General and learned counsel for the Respondent No. 4 vehemently oppose the contention of learned counsel for the petitioner and submit that order impugned is well versed and well reasoned.

3. I have given serious consideration to the arguments of learned counsel for the petitioner as well as the learned Assistant Advocate General and the learned counsel for Respondent No. 4 and have also gone through the available record, with their able assistance.

4. From the perusal of order impugned, it reveals that only direction has been issued to Respondent No. 3 with the observation, "after hearing the arguments and going through the record, present Court find that this is not denying fact at the part of local police that present petitioner has previously moved application furnishing information for happening of cognizable offence. So in the circumstances, the local police is required to record the statement of petitioner and strictly proceed in accordance with law for redressal of grievance of the petitioner". The order impugned seems to be well versed and well reasoned, no illegality or infirmity in the same has been pointed out by the learned counsel for the petitioner calling for interference by this Court in the exercise of Constitutional jurisdiction. However, further direction is issued to Investigating Officer to proceed with the matter strictly in accordance with law and submit report to the Deputy Registrar (Judicial) of this Court within 10 days.

5. With this observation, this petition is disposed of.

(R.A.) Petition disposed of

PLJ 2015 Lahore 290

Present: ShahKhawar, J.

DILDAR ALI--Petitioner

versus

D.C.O. CHINIOT, etc.--Respondents

W.P. No. 20133 of 2014, decided on 11.7.2014.

Constitution of Pakistan, 1973--

----Arts. 9, 18 & 199--Constitutional petition--Casual attitude of D.C.O.--Not perform constitutional obligation--Lawful business and trade is fundamental right of an individual--Validity--High Courts are custodian of fundamental rights of its citizens--Denial of any of fundamental rights of citizens could not be allowed due to fanciful and arbitrary ideas and presumptions of state functionaries--According to Art. 9 of Constitution protection of life to citizens has been declared as an inviolable constitutional obligation of state--No such action of executive could prevail which may deny any of fundamental rights of individuals on pretext that same may cause security problems and law and order situation--If such notion of respondent is accepted, then people must stay at home and should not carry out any activity in wake of terrorism and Military action--Petition was accepted. [P. 292] A & B

Ch. MuhammadAkram Khan, Advocate for Petitioner.

Mr. MuhammadNasir Chauhan, AAG for Respondents.

Date of hearing: 11.7.2014.

Order

The instant writ petition has been filed through Niaz Ali Manager of Lucky Irani Circus. One Javed Ahmad Malik Manager on behalf of petitioner's company applied for permission of holding of Circus and shows before District Coordination Officer, Chiniot/ Respondent No. 1 at the event of mela/urs of Sakhi Abdul Wahab to be celebrated on Jhang Road Chiniot w.e.f.11.07.2014 to 16.07.2014.

1. The application for grant of permission made to Respondent No. 1 was referred to District Police Officer, Chiniot/Respondent No. 2, who sought report from the local Police. The local Police after making report in favour of the petitioner sent the same to the office of Respondents No. 2 for onward submission to Respondent No. 1. Respondent No. 2/DPO Chiniot forwarded the report of local Police to the office of DCO Chiniot vide letter dated 01.07.2014, but same was not agreed upon and was rejected by the DCO Chiniot vide order dated 05.07.2014. The petitioner when approached the office of Respondent No. 1 for obtaining copy of the notification whereby the petitioner was disallowed to exhibit the permission, but staff told that issuance of notification is in progress. The petitioner impugns the said order dated 05.07.2014.

2. Arguments heard. Record perused.

3. The above mentioned casual attitude of Respondent No. 1 reflects that he did not perform his Constitutional obligations and also did not take into consideration that carrying out any lawful business and trade is the fundamental right of an individual under Article 18 as guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. Reference could be made of the case law reported as Shaukat Ali vs. Government of Pakistan, etc. (PLD 1997 SC 342). It is held that State functionaries are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made by State functionaries to ensure that no one is denied the right to earn his livelihood because of the unfair or discriminatory act on their part.

4. Under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the High Courts are the custodian of the fundamental rights of its citizens. Denial of any of the fundamental rights of the citizens could not be allowed due to fanciful and arbitrary ideas and presumptions of the State functionaries like Respondent No. 1 In the same manner, according to Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973, protection of life to the citizens has been declared as an inviolable Constitutional obligation of the State. No such action of the Executive could prevail which may deny any of the fundamental rights of individuals on the pretext that same may cause security problems and law and order situation. If this notion of Respondent No. 1 is accepted, then people must stay at home and should not carry out any activity in the wake of terrorism and Military action in Wazirastan.

5. The impugned order dated 05.7.2014 passed by Respondent No. 1 is not tenable in the eyes of law, which is hereby set-aside.

6. By allowing the instant writ petition. District Officer Coordination/Respondent No. 1 is directed to facilitate the petitioner in holding Circus shows according to the schedule mentioned in the writ petition. Respondent No. 1 is also directed to convene a meeting with the petitioner as well as Respondent No. 2/District Police Officer, Chiniot to provide appropriate security measures for holding of Circus shows as proposed by the petitioner. In the same manner, the petitioner is also directed to cooperate with Respondents No. 1 & 2 in finalizing modalities of security and to make sure that during the event, sanctity of the month of holy Ramzan is strictly observed. The learned AAG, Punjab who is present in the Court is directed to communicate this order to Respondents No. 1 & 2 to implement the same.

7. With above observations and directions, the instant writ petition is allowed.

(R.A.) Petition allowed

PLJ 2015 Lahore 293

Present: Abdus Sattar Asghar, J.

SH. KHALID MAHMOOD, etc.--Petitioners

versus

PROVINCE OF PUNJAB, etc.--Respondents

C.R. No. 3343 of 2014, decided on 30.10.2014.

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

----S. 115 & O. XVII, R. 3--Civil revision--Right to produce evidence was struck off--Despite availing six opportunities petitioners had failed to produce evidence--Jurisdiction--Validity--Petitioners miserably failed to produce evidence on fixed date, therefore, trial Court was justified in applying penal provision of Order XVII Rule 3 of CPC. [P. 297] A

Mr.Iftikhar Ullah Malik, Advocate for Petitioners.

Date of hearing: 30.10.2014.

Order

This civil revision under Section 115 of the Code of Civil Procedure 1908 is directed against the order dated 16.9.2013 passed by learned Civil Judge Sialkot whereby their right to produce evidence was struck off. It also assails the judgment dated 25.6.2014 passed by learned District Judge Sialkot whereby petitioners' appeal against above said order was dismissed.

1. Arguments heard. Record perused.

2. Perusal of record transpires that Sh. Khalid Mahmood petitioners lodged a suit for declaration along with permanent and mandatory injunction as consequential relief against the respondents on 08.5.2010. The respondents resisted the said suit by filing contesting written statement. In view of the divergent pleadings of the parties learned trial Court framed the issued on 31.10.2011. Thereafter as many as ten adjournments were provided to the petitioners for producing evidence. Out of the said ten adjournments on four occasions hearing was adjourned due to strike of the lawyers and leave of learned Presiding Officer. Six adjournments were obtained by the petitioners for non-producing the evidence. Lastly on 25.6.2013 learned trial Court granted adjournment to the petitioners on their request in the following manner:

"The evidence of the plaintiffs is not present Request for adjournment has been made. Already many opportunities were granted but the plaintiffs failed to produce their evidence. However, in the interest of justice, absolute last opportunity is granted with costs of Rs. 500/-. Adjourned for evidence of plaintiff for 16.09.2013."

1. Even on the fixed date i.e. 16.9.2013 petitioners again failed to produce the evidence. Consequently learned trial Court passed the impugned order in the following manner:--

"16.09.2013

2.10 p.m:

Present: Ld: counsel for the parties.

Evidence is not present.

ORDER

It is pertinent to mention that the issues were framed on 31.10.2011 whereas despite availing numerous opportunities with costs, the plaintiffs failed to examine even a single witness. On 25.06.2013, the plaintiffs were granted absolutely last opportunity with costs of Rs. 500. Today i.e. 16.09.2013, the plaintiffs were given opportunity till closing hours to produce their evidence but in vain which shows that they have no interest to pursue the matter. Further adjournment without any cause, would defeat the very object of justice rather tantamount to put the defendants in mental agony. I therefore, by invoking provision of Order XVII Rule 03 of CPC struck off the right of evidence for production of evidence.

Vide separate detailed judgment in English of even date; the instant suit is dismissed for want of evidence. Decree sheet be drawn up. Parties shall bear their own costs. Be consigned to the record room after its due completion."

1. Scrutiny of record transpires that despite availing as many as six opportunities the petitioners have miserably failed to produce evidence. In the case of Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) the provisions of Order XVII Rule 3 of Code of Civil Procedure, 1908 came under consideration before the Hon'ble Supreme Court of Pakistan and following principle was enunciated:

"It will be seen that this rule applies to a case where time has been granted to a party at his instance to produce evidence or to cause the attendance of witness or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.”

1. In this case Sh. Khalid Mehmood Petitioner No. 1 while agitating against judgment and decree dated 16.9.2013 in his grounds of appeal before the learned Additional District Judge Sialkot categorically alleged that he was pursuing the case on his behalf as well as on behalf of other petitioners and that he being a heart patient had fallen seriously ill on the fixed date of hearing i.e. 16.9.2013 and learned trial Court was so informed by his counsel with a request for adjournment but the learned trial Court did not accede to the request and dismissed the suit under Order XVII Rule 3 of Code of Civil Procedure 1908. Petitioners' contention that he had fallen seriously ill on 16.9.2013 is not supported by any medical certificate. Admittedly neither Sh. Khalid Mehmood Petitioner No. 1 nor his witnesses were present before the learned trial Court on the fixed date i.e. 16.9.2013. Learned Appellate Court in the impugned judgment dated 25.6.2014 scanned the record produced by the petitioners along with the appeal and rightly observed that the same fails to substantiate the petitioner's plea of ailment on the relevant date. It is therefore a case of willful default. In the attending circumstances the learned trial Court had no option but to exercise his jurisdiction in terms of Order XVII Rule 3 of Code of Civil Procedure 1908. Reliance be made upon Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (PLD 2003 Supreme Court 180).

2. Learned counsel for the petitioners has vehemently argued that the learned trial Court was obliged to furnish an opportunity to the petitioner at least to record his own statement. Perusal of the record transpires that neither the petitioner was present on the fixed date before the Court nor any such request was made by the learned counsel for the petitioner to the learned trial Court. No application was lodged by the learned counsel for the petitioner before the learned trial Court with a request for recording the statement of the petitioner. Even no such request was made by the petitioner in his grounds of appeal before the learned Appellate Court. In the above noted circumstances it will be advantageous to seek guidance from a dictum laid down by the Hon'ble Supreme Court of Pakistan reported as Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCMR 637). The relevant extract of the above citation reads below:

“4. Notwithstanding our refraining to interfere in the matter on account of the above, we are of the candid view that provisions of Order XVII Rule 3, CPC are penal in nature and as per the settled law such provisions should be strictly construed and applied, therefore once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the Court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits. If such approach is liberally followed and resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. would be given a chance to his advantage and to the disadvantage of his opposing side. This is not the spirit of the law at all. It may not be out of place to mention here that to apply and to adhere to law is not a mere technicality, rather it is duty cast upon the Court as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 to do so. Thus where Order XVII, Rule 3, C.P.C. is duly attracted, the Court has no option except to take action in accord therewith.

1. In the above context, it may be held that in every case where the action against the delinquent party is imperative and his evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3, C.P.C., the Court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date. Obviously if the party is present in the Court and desires to appear as a witness the Court should not decline his request, rather it shall be appropriate that where the party is present, the Court while applying Order XVII, Rule 3, CPC and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which has not been availed. However, if this fact is not so recorded by the Court though the party was present and sought its examination such party should initially move an application to the Court for examination if the case has not yet been decided. But where the case is finally decided a ground should be specifically set in

the memo. of appeal/revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel for the said party to the above effect."

1. Besides it is evident on the record that on 25.6.2013 petitioners' evidence was not available and the time was granted on their request for the sake of justice with the caution of absolute last opportunity subject to the payment of the cost. Despite above noted caution petitioners miserably failed to produce evidence on the fixed date i.e. 16.9.2013 therefore learned trial Court was justified in applying the penal provision of Order XVII Rule 3 of Code of Civil Procedure 1908 through impugned order dated 16.9.2013 which is rightly maintained by the learned Appellate Court. I do not find any legal infirmity, material irregularity or jurisdictional error in the impugned order and judgment passed by learned Courts below. Petitioners have no case to invoke the revisional jurisdiction of this Court.

2. Case law cited by learned counsel for the petitioners is distinguishable on facts and not helpful to the petitioners.

3. For the above reasons, this revision petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 297

Present: Abdus Sattar Asghar, J.

MUHAMMAD ANWAR and another--Petitioners

versus

DISTRICT OFFICER (REVENUE)/DISTIRCT COLLECTOR, SARGODHA and 3 others--Respondents

W.P. No. 13144 of 2012, decided on 10.3.2014.

Land Revenue Act, 1967 (XVII of 1967)--

----S. 164--Colonization of Government Lands (Punjab) Act, 1912, Ss. 32 & 34--Constitution of Pakistan, 1973--Arts. 10-A & 199--Constitutional Petition--Principle of natural justice--Misuse of state land--Ejectment proceedings--No authority to lease out state land without approval of board of revenue--Failed to avail efficacious remedy--Maintainability of petition--Validity--Order passed without notice and without providing, opportunity of hearing is void and no sanction can be attached to superstructure based on it--Impugned orders passed violative to petitioners' fundamental right of due process and fair trial in terms of Art. 10-A of Constitution are, therefore amenable through invoking constitutional jurisdiction of High Court under Art. 199 of Constitution. [P. 302] A

Malik Amjad Pervaiz, Advocate for Petitioners.

Ms Asma Hamid,Asstt.A.G. Punjab with Distt. Collector and Naib Tehsildar Sargodha for Respondents.

Date of hearing: 10.3.2014.

Judgment

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 to impugn the order dated 20.8.2010 passed by District Officer (Revenue)/District Collector Sargodha, order dated 31.8.2010 passed by Revenue Officer Halqa Bhagtanwala District Sargodha and order dated 7.3.2011 passed by Executive District Officer (Revenue) Sargodha.

1. It is argued by learned counsel for the petitioner that Muhammad Arshad Petitioner No. 2 obtained vacant plot Measuring 20 x 15 feet on rent from Mushtaq Ahmad Chairman Bhagtanwala RIDP at the rate of Rs. 1500/- per month as rent and also paid Rs. 10,000/- as security vide rent deed dated 1.7.2005 for a period of one year up-till 30.6.2006 also renewable; that Muhammad Anwar Petitioner No. 1 also obtained a shop situated at Cooperative Farm Service Centre Bhagtanwala Tehsil and District Sargodha on rent at the rate of Rs. 2650/- per month for a period of one year from 1.7.2010 to 30.6.2011 vide rent deed dated 26.7.2010 executed by the Administrator Cooperative Farm Service Centre Bhagtanwala; that on 31.8.2010 Revenue Officer Halqa Bhagtanwala ejected the petitioners from the rented premises on the basis of Order No. 2494 dated 20.6.2010 passed by District Officer (Revenue) Sargodha and on verbal direction of DO(R) Sargodha dated 31.8.2010; that being aggrieved of the impugned order and ejectment proceedings the petitioner lodged an appeal under Section 161 of the Land Revenue Act, 1967 read with Section 7 of the Colonization of Government Lands (Punjab) Act, 1912 before the Executive District Officer (Revenue) Sargodha which was also dismissed vide impugned order dated 7.3.2011; that the impugned orders are against law and facts, without providing opportunity of hearing, without lawful authority, against the principles of natural justice and liable to set aside.

2. Respondents No. 1 to 3 in their parawise comments contended that possession of the state land comprising Killa No. 3/2, 4, 7, 8/1 measuring 20 Kanals 5 Marlas situated in Chak No. 23-A/SB was given to the Project Manager, IRDP Bhagtanwala vide rapt Roznamcha Waqiati No. 317 dated 1.5.1975 for constructing of workshop/godown and office of Markaz Farmer Cooperative Association Bhagtanwala in anticipation of sanction of the Board of Revenue, Punjab Lahore; that on account of misuse of state land however possession was resumed by the then Deputy Commissioner Sargodha vide Letter No. 1296/CA/CC dated 22.2.1983; that petitioners in connivance with Muhammad Aslam and Mushtaq Ahmad visited the office of Respondent No. 4 and started construction of the shops on state land without lawful authority; that on having knowledge of the fact through press and public complaints the District Collector/ Respondent No. 1 ordered ejectment proceedings under Sections 32 & 34 of the Colonization of Government Lands (Punjab) Act, 1912 against the petitionersvide order dated 20.8.2010 and thereafter 17 illegally constructed shops were sealed and their possession was resumed in favour of the Government by Respondent No. 3 on 22.8.2010 however two shops were sealed on 31.8.2010 in continuation of the earlier order dated 20.8.2010; that the Revenue Officer in his order dated 31.8.2010 incorrectly referred the Order No. 2494 dated 20.6.2010 due to clerical mistake; that petitioners' appeal before the competent authority has been dismissed; that IRDP has no authority to lease out the state land without approval of the Board of Revenue Punjab Lahore; that petitioners could have filed a revision petition against the impugned order before the Board of Revenue Punjab in terms of Section 164 of the Land Revenue Act, 1967; that petitioners have failed to avail the efficacious remedy therefore constitutional petition is not maintainable.

3. Arguments heard. Record perused.

4. At the outset it may be expedient to reproduce the order dated 20.8.2010 passed by the District Officer (Revenue) Sargodha which reads below:--

"ORDER:

Whereas the state land/property described below has been illegally encroached upon by the I.R.D.P. Bhagtanwala Tehsil and District Sargodha on which they have no right/title whatsoever:--

DESCRIPTION OF THE PROPERTY:

Unauthorized possession on state land measuring 9 kanals comprising Sq. No. 33 Kills No. 3/2/1, 4/1 in the Northern side situated in Chak No. 23-A/SB Bhagtanwala, Tehsil and District Sargodha by constructing shops.

2. Now, therefore, in exercise of the powers conferred upon under the Colonization of Government (Lands) Punjab Act, 1912, I, Mian Adil Iqbal, District Officer (Revenue)/District Collector, Sargodha do hereby order and direct under Sections 32 and 34 of the said Act that illegal occupants should be ejected forthwith and the State property got vacated. The Tehsildar Sargodha is authorized to carry out these orders and he may obtain necessary police help to ensure the ejectment proceedings are carried out in peaceful manner.

Given under my hand and the seal of the Court, this 20th day of August 2010.

Sd/- District Officer (Revenue)/ District Collector, Sargodha.

No. 2294/DDO(C)/HVC dated 20.8.2010

1. District Police Officer, Sargodha with the request that as a breach of peace is apprehended at the hands of the illegal occupants, necessary police help may kindly be rendered to the revenue staff as and when required.

2. Tehsildar Sargodha for information and immediate compliance. Compliance report should be sent to this office immediately.

Sd/- District Officer (Revenue)/ District Collector, Sargodha."

Simultaneously ejectment proceedings order dated 31.8.2010 passed by the Revenue Officer Halqa Bhagtanwala District Sargodha reads as under:

کارروائی بے دخلی بحکم جناب DORصاحب سرگودھا نمبری 2494مورخہ 20.6.2010 و زبانی ہدایات جناب DORصاحب سرگودھا 31.8.2010 بابت سیل کیے جانے دو عدد دوکانات و سروس اسٹیشن مربع نمبر 33 کیلہ 4/1واقع چکنمبر 23 جنوبی تحصیل و ضلع سرگودھا۔

آمدہ تعمیل جناب ڈسٹرکٹ آفیسر ریوینو کلیکٹر سرگودھا مورخہ 31.8.2011زبانی با ہمراہ پٹواری حلقہ و گرد اور حلقہ موقعہ پر پہنچا۔ ناجائز قابضین کو حکم افسران بالا سے اگاہ کیا گیا۔ نا جائز قابضین محمد انور عرف شیری، حق نواز مستری نے پر امن طور پر اپنی دوکانات سے سامان نکال لیا۔ ملحقہ دوکان نا جائز قابض محمد انور عرف شیری سروس اسٹیشن سے سامان اتروا کر خالی کرایا گیا۔ ہر دو دوکانات و سروس اسٹیشن کو مطابق حکم افسران بالا سیل کر دیا ہے۔ پٹواری حلقہ کو ہدایت کی گئی ہے کہ کاروائی ہذا کی رپٹ روز نامچہ واقعاتی میں اندراج کرے۔ لہذا تعمیل حکم ہو چکی ہے۔ بمراد مناسب احکام و مذید کارووائی بخدمت جناب تحصیلدار سرگودھا مرسل ہووے۔ 31.8.2010

دستخط ریونیو آفیسر حلقہ بھا گٹانوالہ

1. On query of the Court Mr. Tariq Mehmood District Collector Sargodha in attendance has frankly admitted that no order Bearing No. 2494 dated 20.6.2010 was ever passed by the District Officer (Revenue) Sargodha nor any such order is available on the record of the said office which is made basis to initiate ejectment proceedings dated 31.8.2010 by the Revenue Officer Halqa Bhagtanwala District Sargodha besides oral instructions dated 31.8.2010 passed by the District Officer (Revenue) Sargodha. It is therefore obvious that in the absence of any Order No. 2494 dated 20.6.2010 the impugned ejectment proceedings were without lawful authority and of no legal effect. It is evident on the record that petitioners were in occupation of shops on the basis of rent agreements executed by the Administrator Cooperative Farm Services Centre Bhagtanwala and the Chairman Bhagtanwala IRDP therefore petitioners were entitled to a show-cause notice as well as opportunity of hearing before taking any action adverse to their rights on the basis of rent agreements. Respondents' contention that IRDP Authorities were not authorized to lease out the state land, does not furnish any basis to deny the petitioners' right of due process and fair trial guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Besides above, careful reading of the impugned order dated 20.8.2010 also makes it crystal clear that it was passed in absence of the petitioners. It fails to reflect any notice or opportunity of hearing to the petitioners. Both the orders are therefore untenable in the eye of law. It is sad to notice that even the Executive District Officer (Revenue) Sargodha while dismissing the petitioners' appeal through the impugned order dated 7.3.2011 failed to notice that petitioners have been condemned unheard and violative to their fundamental right of due process and fair trial in terms of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The impugned order dated 7.3.2011 passed by the Executive District Officer (Revenue) Sargodha being against law and facts and without lawful authority is also untenable and liable to set aside.

2. It may be expedient to reproduce the provisions of Sections 32 & 34 of the Colonization of Government Lands (Punjab) Act, 1912 which read below:--

3. 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-entry 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 compensation whatsoever."

34.AdditionalpowerofCollectorin regard to offences.--When the Collector is satisfied that an act punishable under Section 33 has been committed, he may in lieu of proceeding against the offender under that section or after conviction of the offender under that section--

(i) in the case of an offence under Section 33 (a), confiscate the crops growing on any land cultivated in contravention of this Act or, it the crops have been cut, recover such sum as he may assess as the value thereof from the offender.

(ii) in the case of an offence under Section 33(c), recover such sum as he may assess as the value of the trees or tree destroyed.

(iii) in the case of an offence under Section 33(b), (d) or (e), cause the building or other encroachment to be demolished or removed or the excavation or channels to be filled up and levy the costs of so doing from the person responsible for such act."

1. The expression 'when the Collector is satisfied' used in both the afore-quoted provisions is of great importance. It requires a probe into the matter in accordance with the principle of natural justice. An order passed without notice and without providing opportunity of hearing is void and no sanction can be attached to the superstructure based on it. The impugned orders passed violative to petitioners' fundamental right of due process and fair trial in terms of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 are therefore amenable through invoking constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. For the above reasons this writ petition is allowed and the impugned order dated 20.8.2010 passed by the District, Officer (Revenue) Sargodha, order dated 31.8.2010 passed by the Revenue Officer Halqa Bhagtanwala District Sargodha and order dated 7.3.2011 passed by the Executive Officer (Revenue) Sargodha are set aside to the extent of the petitioners and the case is remanded to the District Officer (Revenue) Sargodha to decide the matter afresh strictly in accordance with law after providing opportunity of hearing to both the petitioners keeping in view the requirements of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

(R.A.) Petition allowed

PLJ 2015 Lahore 303[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

ROUSCH (PAKISTAN) POWER LIMITED through Chief Executive Officer--Petitioner

versus

MUHAMMAD SALEEM and 10 others--Respondents

C.R. No. 1137 of 2009, decided on 18.3.2014.

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

----O. XLI, R. 27--Additional evidence--Additional evidence is not be allowed in routine unless it bears any relation to an issue framed by trial Court--Permission was allowed--Validity--Appellate Court has unconstrained and untrammeled powers to allow additional evidence provided same is required by it and it arrives at conclusion after going through entire record produced before it that additional evidence either sought to be produced by a party or required by it would enable it to pronounce judgment or same would advance cause of justice--If not impossible for an appellate Court to announce appellate judgment without recording of additional evidence, it would be failing in its duty to shut it out on ground of refusing to allow filling up of lacunas. [P. 310] A

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

----O. VII, R. 14 & O. XLI, R. 27(a)--Production of additional evidence--Without admitting evidence, it would be difficult to pronounce appellate judgment--Validity--Party to an appeal is at liberty to make such an application for production of additional evidence but ultimately it is requirement of appellate Court alone, which would have final say in such matters--Under no circumstances can its hand be forced to adopt a particular course. [P. 312] B

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

----O. XLI, R. 27--Production of additional evidence--Question of--Whether petitioner has been able to make out a case for substantial cause--Pronouncement of judgment without admitting evidence--Validity--Technicalities of law were to be disregarded and every party was to be allowed to lead any evidence as it comes by at any stage--Current trend of authorities is not favourable to old view, which did not allow parties to fill up lacunas--Documents sought to be produced as additional evidence were to have a decisive bearing on just decision of case. [P. 313] C & D

Mr. Shaukat Umar Pirzada, Advocate for Petitioner.

Mr. Muhammad Javed Saeed Pirzada, AAG for Respondents.

Syed Jawad Shahid Naqvi, Advocate for Respondents Nos. 1 to 8.

Date of hearing: 18.3.2014.

Order

This civil revision is directed against the order dated 12.11.2009 passed by learned Additional District Judge, Khanewal, whereby he dismissed the application of the petitioner moved under Order XLI, Rule 27, CPC.

1. This revision petition arises out of a civil suit for declaration instituted by the respondents. It was set out in the plaint that the plaintiffs being inhabitants of village Batian, Miachannu are entitled to using a thoroughfare/common passage, measuring 7 kanals, 4 marlas bearing Khewat No. 198/191 Khatuni No. 330 Khasra Nos.43/6/1, 16/1, 45/4, 56/15/4 of village Batian, Tehsil Mianchannu District Khanewal. As a consequential relief, it was prayed by the plaintiffs/respondents that the defendants in general and the petitioner herein in particular be restrained from digging up the land, which would render the common passage impassable and block their excess to the same.

2. It goes without saying that the defendants entered appearance. Two independent written statements were filed: one, by the Province of the Punjab which took the plea that the land set aside for the thoroughfare/common passage belongs to the Federal Government, and the second by the petitioner herein, who traversed all the allegations made in the plaint, besides raising preliminary issues, one of them being that under Sections 91 and 92, CPC, permission was to be obtained from the Advocate General Punjab or the Collector of the District for that matter before instituting the suit.

3. The learned trial Court seized with the suit framed as many as 10 issues arising from the divergent pleadings of the parties. They need not be reproduced. Suffice it to add that the suit of the plaintiffs was decreed by the learned trial Courtvide judgment and decree dated 14.07.2008. Feeling aggrieved, the petitioner herein instituted an appeal to impugn the validity of the aforesaid judgment and decree dated 14.07.2008.

4. Almost a year after the institution of the appeal, the petitioner/judgment-debtor came up with an application under Order XLI, Rule 27, CPC seeking to produce additional documents, the details whereof have been set out in Paragraph No. 3 of the application.

5. As stated above, the aforementioned application made by the petitioner for production of additional evidence did not find favour with the learned Appellate Court seized with the appeal, which dismissed the same vide order dated 12.11.2009. Hence this revision petition.

6. Learned counsel for the petitioner reiterated what was spelt out in the grounds of revision. He argued that report dated 19.07.1997 prepared by the Assistant Commissioner, Mianchannu made it absolutely clear that the plaintiffs had an alternative path available to them and that the alleged path-the subject matter of the suit-had ceased to be used. He made the argument that subsequent events are invariably taken into consideration by the Courts, which generally mould the relief according to the changed circumstances. He stressed that the law on the subject has undergone a sea change. According to him, the view long held by the Courts that a party to an appeal is not to be allowed to fill up lacunas no long holds good. He placed reliance on the judgments reported as 'Mst. Fazal Khan v. Roshan Din' (PLD 1992 SC 811), 'Ghulam Zohra and others v. Nazir Hussain through legal heirs' (2007 SCMR 1117), 'Syed Sharif-ul-Hassan v. Hafiz Muhammad Amin and others' (2012 SCMR 1258), 'Hassan v. Hussain' (1996 CLC 650) and 'General Manager, Azad Kashmir Pogging and Saw Miles Corporation, Muzaffarabad v. Abdul Rehman and two others' (2013 CLC 1473) to fortify his submissions. It is pertinent to mention that the last of the afore-quoted judgments was delivered by the Supreme Court of Azad Jammu and Kashmir.

7. On the other hand, learned counsel for the respondents/decree-holders opposed this petition and supported the impugned order dated 12.11.2009 passed by the learned appellate Court. He also placed reliance on 'Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another' (PLD 2008 SC 564) to strengthen his submissions. He controverted the arguments made by the learned counsel for the petitioner, pointing out that the petitioner has failed to show as to how the material sought to be produced by it would have decisive bearing on the outcome of the controversy in issue. He also argued that additional evidence is not to be allowed in routine unless it bears any relation to an issue framed by the learned trial Court. In his view, even the extracts from the revenue record are hardly of any relevance. As regards the alleged rent receipts allegedly issued by the District Administration, Khanewal, he was quite scathing in his remarks. He wondered how the District Administration can allow the petitioner to encroach upon a thoroughfare/public path, letting it annex it to its power plant, especially when it was the stance of the Provincial Government represented by the District Administration that the land covered by the thoroughfare in question belongs to the Central Government.

8. I have listened to the arguments of the learned counsel for the parties patiently and at length, besides going through the impugned order as also the documents annexed to the revision petition in terms of Section 115, CPC.

9. Since the case of the petitioner rests on the interpretation and construction of Rule 27 of Order XLI, CPC, it would be useful to reproduce the same hereunder:--

'Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if:

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

The Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

1. To a layman and an ordinary student of law, the words used by the legislature in the afore-quoted rule may not present any difficulty. And yet, it has racked the best legal brains both in Pakistan and elsewhere. A great mass of case law has gathered round this rule. To begin with, it was analyzed by the Privy Council in the celebrated case of 'Parsotime Thakur and others v. Lal Mohar Thakur and others' (AIR 1931 Privy Council 143). The relevant paragraph therefrom reads as under:--

'In their Lordships opinion this additional evidence ought not to have been admitted. If the respondents desired to give evidence as to the thumb impression they had ample opportunity to do so in the trial Court. The provisions of S. 107, Civil P.C., as elucidated by O. XLI R. 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omission in the Court of Appeal.

Turning to the provisions of R. 27 Cl. (1) (a) has no application in the present case. Under Cl. (1) (b) it is only where the appellate Court requires it, (i.e. finds it needful that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but:

"when on examining the evidence as it stands some inherent lacuna or defect becomes apparent."

It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing and under R. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

They will only add that the power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case.'

1. It seems that the law laid down by the Privy Council in the above-noted case was consistently followed by the Courts. However, a jarring note was struck in the case reported as 'Mst. Fazal Jan v. Roshan Din and 2 others' (PLD 1992 SC 811). The facts of the case would set this precedent apart. It was noticed by the Hon'ble Supreme Court of Pakistan that the case was badly conducted by both the sides. That is why relevant documents could not be brought on the record. In this background, it was held by the apex Court that:--

"The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omission from both sides. It was also the duty of the two higher appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI Rule 27, CPC for bringing on record additional evidence. The suo motu exercise of his power would also have been fully justified in the facts and circumstances of the case"

Similar observations were made in the case reported as 'Hassan and another v. Hussain' (1996 CLC 650). The relevant portion may be reproduced advantageously, which reads as under:

The legislature in its wisdom enacted Order XLI Rule 27, CPC with a view to enable the learned appellate Court to record additional evidence which in its view is necessary to "enable it to pronounce judgment or any other substantial Courts ". The Court has to pronounce a judgment in accordance with law with a view to achieve justice and the afore-referred enabling provision has a nexus with the ultimate purpose i.e. a just decision. The additional evidence which is sought to be adduced shall have a direct bearing on the point in issue and the test whether a permission should be granted or not is as to whether a just decision could be arrived at without the additional evidence which is sought to be produced."

1. In a recent judgment reported as 'Syed Sharif-ul-Hassan through L. Rs v. Hafiz Muhammad Amin and others' (2012 SCMR 1258) the august Supreme Court of Pakistan took a dim view of the laid-back approach of the appellate Court which failed to exercise its jurisdiction, by disallowing an application moved by a parda nasheen lady who had pleaded with the appellate Court that her disputed thumb impressions on the disputed document be sent to the handwriting expert alongside her admitted thumb impressions for making comparison so as to get to the truth. Not only her application was disallowed by the appellate Court but the Lahore High Court Bahawalpur Bench also did not come to her rescue. Against this backdrop, it was observed as under:--

"Failure to record additional evidence which is essential for just decision of the case also amounts to exercising jurisdiction illegally and with material irregularity.

Failure to do so shall be failure to exercise jurisdiction vested. The District Judge or for that matter the High Court in the circumstances should have stepped in to correct the illegality by permitting examination of additional evidence. But where they failed, they failed to exercise jurisdiction vested. "

1. In the case of Ghulam Zohra and others v. Nazir Hussain through legal heirs' (2007 SCMR 1117) it was held by the Hon'ble Supreme Court of Pakistan in a suit for pre-emption that:--

"The Appellate Court would have done justice if it had come to the conclusion that the admittance of additional evidence would promote the ends of justice and the same was required in order to do complete justice between the parties. This must have prevailed as substantial cause for the Appellate Court to admit evidence as mentioned in sub-rule (b) Rule 27 of Order XLI, CPC. We are of the view that both the Courts, by not admitting the additional evidence have passed a decree in favour of a pre-emptor having no superior right. This was a bigger irregularity as compared to the admission of additional evidence for which substantial cause was available."

1. In the case reported as 2013 CLC 1473 (supra) it was held by the Supreme Court of Azad Jammu and Kashmir that an appellate Court has ample powers to record additional evidence either suo motu or on an application of a party.

2. At first sight, it appears to be difficult to reconcile the views and the law laid down in the above judgments with the exposition of law by the Privy Council in the case of 'Lords Blanesburgh and Macmillan and Sir George Lowndes Parsotim Thakur and others v. Lal Mohar Thakur and others' (AIR 1931 Privy Council 143) but on deeper analysis, one can safely assume that all the judgments delivered by the superior Courts proceeded on their peculiar facts, but one strand runs through all of them. In every case where permission for additional evidence was allowed, it was the feeling of the Court concerned that it required additional evidence to get to the truth and to arrive at a just conclusion. As a matter of fact, they are all consistent and in accord with the clear, unambiguous and unequivocal words used by the legislature in Clause (b) of Rule 27 of Order XLI, CPC. It would be worth the effort to take another look at the relevant rule, which reads as under:

But if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, (emphasis added).

To cut the matter short, an appellate Court has unconstrained and untrammeled powers to allow the additional evidence provided the same is required by it and it arrives at the conclusion after going through the entire record produced before it that the additional evidence either sought to be produced by a party or required by it would enable it to pronounce the judgment or the same would advance the cause of justice. In other words, if it is difficult, if not impossible for an appellate Court to announce the appellate judgment without the recording of additional evidence, it would be failing in its duty to shut it out on ground of refusing to allow the filling up of lacunas.

1. But this not to say that another view is not being expressed consistently by the Supreme Court of Pakistan that parties cannot be allowed to fill up lacunas or to patch up weaker parts of their cases. In this respect, reference may well be made to the judgment reported as 'Muhammad Yousaf v. Mst. Maqsooda Anjum and others' (2004 SCMR 1049), in which it was held as under:

'We are not impressed. It is well-settled that additional evidence cannot be received to fill up the lacuna or provide for deficiency in the case of a party. It is also well settled that the additional evidence is permitted if, the Court needs the same for purposes of disposal of the case. By requesting the Court to permit him to produce private documents as additional evidence, the petitioner was clearly trying to fill up a lacuna and provide for the deficiency in the case. This cannot be permitted. If petitioner's counsel has been negligent, as contended, the petitioner may have to proceed against the counsel concerned. However, this is not a good reason for grant of permission to adduce additional evidence.'

1. In the case of 'Sher Baz Khan and others versus Mst. Malkani Sahibzadi Tiwana and others'(PLD 2003 Supreme Court 849) a Full Bench of the apex Court held as under:

'according to law, an unsuccessful party in a suit is not to be granted opportunity to fill up weaker parts of its case by producing additional evidence to the prejudice of the other party. He also had no satisfactory answer as to why these documents were not even relied under Order VIII read with Order VII, Rule 14, CPC as every party in a suit is required to mention the documentary evidence which it would like to produce in evidence in support of its case so that the adverse party had sufficient notice to meet the same.'

1. In the case of 'Nabi Bux and others v. Syed Mumtaz Ali Shah and another' (2000 MLD 1318) it was held as under:

"In law a party to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court unless the appellate requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. Another ground for permitting additional evidence is that the Court of original jurisdiction has refused to admit evidence which ought to have been admitted."

In the case of 'Muhammad Qasim and 6 others v. Muhammad Hussain and 8 anothers' (PLD 2001 Lahore 9) it was held as under:

'On the question of production of additional evidence this Court has always been holding that an additional opportunity for filling up gaps left in evidence at trial stage is not to be permitted. Reliance is placed upon Said Rasool and 8 others v. Subedar Amir Zaman and 11 others 1987 CLC 1582 and Pardool and 7 others v. Sattar Khan 1988 CLC 22'.

1. Since the petitioner has invoked the revisional jurisdiction to make reference to the case of 'Muhammad Ramzan v. Fatima and 30 others' (PLD 2004 Lahore 17), wherein one comes across the following observations made by this Court in relation to the scope of revision vis-a-vis appeal and at times their interplay:--

'Invocation of remedy of a revision petition or an appeal is regulated under the prescribed provisions of law and each has its well defined legal parameters. Yet in certain cases their scope can overlap or can be genuinely mistaken or can even otherwise be confused. The object of both the remedies, however, is to bestow upon the litigant another tier to seek rectification of the orders/judgments/decrees assailed therein. Both the remedies are vehicles to access justice and to correct injustice or wrong occurring adjudication of a subordinate Court. The object of law providing various remedies is to safeguard a legal right and to cure damage done to such right. Denial of any one remedy will be denial of the right sought to be enforced. The Court should, therefore, allow conversion of revision without a demur in absence of an insurmountable legal impediment. If a Court under law is the seat of revisional as well as appellate jurisdiction denial of conversion by such Court in absence of compelling reasons would amount to stifling the remedy otherwise guaranteed to a person under law.

Conversion should not be taken to be bounty of the Court. In my opinion, it is the vested right of a litigation to avail of the remedy to which he is entitled either through direct institution or through conversion if he had invoked the wrong remedy or the wrong law.

1. As is evident from a perusal of the impugned order dated 12.11.2009, what weighed with the learned appellate Court to reject the application moved by the appellant/petitioner herein was the fact that the petitioner had not taken any stance in its written statement that it was a tenant/lessee under the Provincial Government (mod of the documents sought to be produced by it fell into this category). Secondly, it did not move any application at any stage for production of additional evidence before the learned trial Court. In short, the appellant was attempting to improve upon its stand.

2. It is indisputable that the petitioner's company did not move any application before the learned trial Court in terms of Order XIII, CPC seeking to produce additional evidence. These documents were also not annexed to the written statement filed by it nor were they relied upon by it in terms of Order VIII read with Order VII, Rule 14, CPC Therefore, clause (a) of Rule 27 of Order XLI, CPC was not attracted at all. Turning to clause (b) thereof, nowhere has it been observed by the learned appellate Court in the impugned order dated 12.11.2009 that it required further documents either to elucidate the controversy in issue or that without admitting them into evidence, it would be difficult for it to pronounce the appellate judgment. No doubt a party to an appeal is at liberty to make such an application for production of additional evidence but ultimately it is the requirement of the appellate Court alone, which would have the final say in such matters. Under no circumstances can its hand be forced to adopt a particular course. At this juncture, I deem it necessary to advert to the documents sought to be produced by the petitioner. The prime and foremost document is a report dated 19.07.1997 prepared by an Assistant Commissioner/Collector, Mianchannu. A cursory glance thereat says a lot about the mindset of the author. Since the author of the report was not examined by the petitioner in the trial Court, this report in itself would be inadmissible in evidence. As regards the order dated 04.10.1999 passed in Civil Revision No. 656/1997, suffice it to say that this order was interim in nature and since all intermediate orders merged into the final order or judgment, this order or any observation made therein is of no help to the petitioner. Needless to say, the petitioner has to stand on its own legs. Significantly, the extracts from the revenue record sought to be produced by the petitioner hardly bear relation to the land set aside for the thoroughfare in question.

3. This brings me to the question whether the petitioner has been able to make out a case for a 'substantial cause' within the meaning of law to allow it the production of additional evidence. No such case has either been pleaded or substantiated.

4. The arguments of the learned counsel for the petitioner focused only on one thing. He emphasised that technicalities of law were to be disregarded and every party was to be allowed to lead any evidence as it comes by at any stage. He was at pains to explain that the current trend of the authorities is not favourable to the old view, which did not allow the parties to fill up the lacunas. With utmost respect to the learned counsel for the petitioner, it passes comprehension as to how the judgments relied upon by him were of any help to the petitioner. The observations made therein are to be read in the context and in the peculiar circumstances of those cases. It bears repeating that in all those cases, either the High Court or the Hon'ble Supreme Court of Pakistan formed the view that the documents sought to be produced as additional evidence were to have a decisive bearing on the just decision of the case. The relevancy of those documents to the controversy in issue also played no small a part. All these factors militate against the case of the petitioner.

5. For what has been stated above, the revision petition being devoid of merits is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 314

Present: Mrs. Ayesha A. Malik, J.

PIONEER CRICKET CLUB etc.--Petitioners

versus

ELECTION COMMISSIONER, PCB, etc.--Respondents

W.P. No. 30656 of 2013 etc., decided on 18.4.2014.

Constitution of Pakistan, 1973--

----Art. 199--(Dispute Resolutions of Appeals) of PCB Constitution--Scope of--Non speaking orders of independent arbitration PCB--Decision of scrutiny committee--Maintainability of writ petition--Appeal lies before independent arbitrator--Clubs were declared inactive--Scrutiny of clubs was mala fide or against mandate of PCB Constitution--Validity--Scrutiny Committee verifies team, its playing facilities and ground available as well as tournaments played from data given by petitioners themselves in Club Scrutiny Form (2013) and (2011)--If petitioners dispute findings of scrutiny committee then remedy of appeal before election commissioner is available and thereafter before independent arbitrator--Petitioners had come directly against order of Scrutiny Committee--Issues raised in these petitions are of factual nature and efficacious remedy is available to them before Election Commissioner and then before independent arbitrator under PCB Constitution, hence these petitions were not maintainable. [Pp. 319 & 320] A,B & C

Mr. Waseem Ahsan,Advocate for Petitioners (in W.P. Nos.30655, 30656, 30657, 30658, 30659, 30660, 30661, 30662, 30663 and 30673 of 2013).

Ms. Farzana Batool,Advocate for Petitioner (in W.P. No. 20103/2013).

Mr. Abdul Razzaq Rajab, Advocate for Petitioners (in W.P. No. 842/2014).

Dr. A. Basit, Advocate for Petitioners (in W.P. Nos.30056 and 30654 of 2013).

Mr. Aftab Gul, Advocate for Petitioners (in W.P. Nos.14127 and 14128 of 2012).

Mr. Ustad Muhammad Iqbal, Advocate for Petitioners (in W.P. No. 16098/2012).

Mr. M. Irfan Khan Ghaznavi, Advocate for Petitioners in W.P. No. 30580/2013.

Mr. Taffazul Haider Rizvi, Advocate for Respondent PCB along with Barrister Salman Naseer, Manager Legal, PCB (in W.P. Nos. 14127, 14128, 16098 of 2012, 30654, 30056, 30580 of 2013 and 842/2014).

Mr. Hafeez Saeed Akhtar, Advocate for Respondent PCB (in W.P. Nos.30655, 30656, 30657, 30658, 30659, 30660, 30661, 30662, 30663 and 30673 of 2013).

Syed Hasnain Haider, Advocate for Respondent PCB (in W.P. No. 20103/2013).

Mr. Jehanzaib Khan Bharwana, Advocate for Respondents No. 4, 6 and 7 (in W.P. Nos.20103, 30654 and 30056 of 2013).

WP Nos.30655, 30656, 30657, 30658, 30659, 30660, 30661, 30662, 30663 and 30673 of 2013 against the impugned order dated 10.6.2013 of the Scrutiny Committee, PCB for Annexure-A.

WP Nos.20103, 30056, 30654 and 30580 of 2013 against the impugned order dated 19.7.2013 of the Election Commissioner, PCB for Annexure-B.

WP No. 842/2014 against the impugned order dated 4.1.2012 of the Election Commissioner, PCB for Annexure-B.

WP Nos. 14127 of 2012 against the impugned orders dated 28.9.2011, 11.10.2011 and 22.5.2012 of the Scrutiny Committee, Election Commissioner and the Independent Arbitrator, PCB respectively for Annexure-C.

WP No. 14128 of 2012 against the impugned order dated 4.1.2012 and 21.5.2012 of the Election Commissioner and Independent Arbitrator, PCB respectively for Annexure-C.

WP No. 16098/2012 against the impugned order dated 16.1.2012 and 24.5.2012 of the Election Commissioner and the Independent Arbitrator, PCB respectively for Annexure-C.

Date of hearing: 21.3.2014.

Judgment

This single judgment decides upon the common issues arising in the aforementioned writ petitions. The impugned orders in the petitions are the orders passed by the (i) Scrutiny Committee, PCB (ii) Election Commissioner, PCB as well as the orders of the (iii) Independent Arbitrator, PCB.

1. The grievance of the petitioners in all the petitions is common, however the petitioners have come to this Court at different stages. The petitioners shown in the aforementioned Annexure-A have come against the order of the Scrutiny Committee dated 10.6.2013. The petitioners shown in Annexure-B have come against the order of the Election Commissioner, PCB dated 4.1.2012, 19.7.2013 and the petitioners in Annexure-C have come against the order of the Independent Arbitrator, PCB dated 21.5.2012, 22.5.2012 and 24.5.2012.

2. The petitioners are all cricket clubs which have been declared 'inactive' through the order of the Scrutiny Committee. The ease of the petitioners is that the Scrutiny Committee passed a non-speaking order contrary to the record, without recording any evidence and collecting any information about the status of the petitioner clubs. Learned counsel for the petitioners detailed in Annexure 'A' argued that the order of the Scrutiny Committee dated 10.6.2013 is a non-speaking order. The petitioners were not given an opportunity of hearing nor was any evidence recorded before passing the impugned orders. The Scrutiny Committee in a slipshod manner passed the impugned order without detailing as to why the petitioners have been declared as 'inactive' clubs. Learned counsel further argued that the decision of the Scrutiny Committee is contrary to the record because the petitioner's clubs fulfills the criteria as stipulated in the Constitution of the Pakistan Cricket Board (PCB Constitution) for 'active' clubs.

4. The petitioners who have come against the orders of the Election Commissioner and the Independent Arbitrator are essentially aggrieved by the orders wherein they have upheld the orders of the Scrutiny Committee and maintained the status of the petitioners as an 'inactive' clubs. The grievance of these petitioners as mentioned in Annexure 'B' and `C’ is that the decision of the Scrutiny Committee is contrary to the PCB Constitution. They have also agitated the ground that since the District Cricket Association did not organize any tournament, therefore the petitioners should not have been made responsible for not playing any tournament. They have also argued that the orders of the Election Commissioner and the Independent Arbitrator are contrary to the record.

5. Report and parawise comments have been filed by the Respondent PCB. Learned counsels for the Respondent PCB argued that the petitions have been filed on behalf of the cricket clubs, however no resolution has been appended with the instant petitions to show that the president of the cricket club has been authorized to file the instant petitions. He further argued that the Province of Punjab has not been impleaded as necessary party which is a fatal defect and on this ground alone the petitions merit dismissal. Learned counsel argued that the petitioners have impugned the decisions of the Scrutiny Committee, however, the instructions/guidelines and the procedure of the Scrutiny Committee are not statutory in nature, hence these petitions are not maintainable, lie further argued that against the order of the Scrutiny Committee the petitioners have a right to file an appeal under Para 40(2) of Part VIII (Dispute Resolutions or Appeals) of the PCB Constitution which right of appeal has not been availed. He further argued that against the decision of the Election Commissioner, PCB, another appeal lies before the Independent Arbitrator in terms of Para 40(6) of Part VIII (Dispute Resolutions or Appeals) bf the PCB Constitution. The petitioners mentioned in Annexure 'A' have come directly to the Court against the orders of the Scrutiny Committee without availing remedy before the Election Commissioner and the Independent Arbitrator. Both remedies are adequate and efficacious remedies which should have been availed by the petitioners. The petitioners named in Annexure 'B' and 'C’ have availed their remedies and cannot re-agitate their case through the instant writ petitions.

6. Learned counsel for the Respondent PCB argued that the criteria and the guidelines of the scrutiny procedure have been set out under the Necessary Instructions/Guidelines for Clubs Appearing in PCB Scrutiny (Scrutiny Guidelines). In terms of the said Scrutiny Guidelines the cricket club provides its information in the Club Scrutiny Form. The Scrutiny Committee visits the site of the cricket club and thereafter physically verifies the information provided by the cricket club in the Club Scrutiny Forms. Learned counsel argued that each of the petitioners have filled the Club Scrutiny Form (2013) and in W.P. Nos.14127, 14128, 16098 of 2012 and W.P. No. 842/2014 Club Scrutiny Form (2011) in which they have provided all the relevant data in relation to their club such as the number of players, cricket field and its playing facilities. The Scrutiny Committee makes a spot inspection to verify whether the playing facilities and the players of the club are in terms of the criteria given in the Scrutiny Guidelines and also are in terms of the information provided by the clubs itself in the Club Scrutiny Forms. He argued that it is necessary to determine whether or not the cricket club is 'active' or 'inactive' for the purposes of election because an 'active' club is eligible to vote in terms of Part V of the PCB Constitution. Learned counsel argued that if the club does not meet the stipulated criteria it is declared as 'inactive' club, hence it cannot vote. Learned counsel argued that in the cases of the petitioners in W.P. No. 30655, 30656, 30658, 30659, 30660, 30661, 30662, 30663 and 30673 of 2013, the petitioners have availed the remedy of appeal before the Election Commissioner, PCB but this fact has not been disclosed in the Petition. Learned counsel further argued that the issues raised in the instant petitions are of a factual nature and as such cannot be decided in a constitutional petition.

1. Report and parawise comments have been filed on behalf of the Respondents No. 4, 6 and 7 in W.P. Nos.20103, 30654 and 30056 of 2013. Learned counsel for the stated Respondents have provided the complete record of the tournaments held and the clubs that have played those tournaments.

2. Heard the learned counsels for the parties and reviewed the record available on the file.

3. The petitioners in Annexures A, B, C claim that the Scrutiny Committee passed its order dated 10.6.2013 hastily without recording evidence and collecting information and totally contrary to the PCB Constitution. The PCB Constitution defines an 'active' club in Paragraph 2(ii). An 'active' club has to be scrutinized in order to be declared eligible for the elections of the Regional District Associations. An 'active' club has the right to vote in terms of Paragraph 5 of Part-V of the PCB Constitution which is reproduced below:

"The BOG shall appoint the scrutiny committees to scrutinize eligible clubs and associations for holding elections".

The PCB Constitution does not set out the procedure in relation to the process of scrutiny. However the respondents have framed the Scrutiny Guidelines which provides for the criteria that the club has to be meet in order to be declared an 'active' club. It is an internal document made for the benefit of the clubs. A review of the Scrutiny Guidelines shows that it essentially requires the cricket club to verify the information provided for by the clubs with respect to its players data, its playing facilities and its playing activities. In terms of the record produced by the learned counsel for the Respondent PCB, the petitioners all filled in their Club Scrutiny Form (2013) and Club Scrutiny Form (2011) in which they have provided their data. The Scrutiny Committee visited the club at its playing site to ensure that the information so provided is correct. Again the data provided on the Club Scrutiny Forms (2013) and (2011) was verified. On the basis of the information provided a decision was taken whether the petitioner's club satisfied the criteria for being declared an 'active club'. After the inspection at site, the Scrutiny Committee found that the petitioners did not satisfy the requirements. Hence the clubs were declared 'inactive'. Nothing has been brought on the record to show that the process conducted in the year 2013 or 2011 with respect to the scrutiny of the petitioners clubs was mala fide or against the mandate of the PCB Constitution. The petitioners have impugned the scrutiny process on the ground that no recording of evidence took place and that information was not collected. Furthermore the order was passed in a slipshod manner. However to the mind of this Court these grounds also do not merit any consideration because the scrutiny process does not require recording of evidence. The purpose of scrutiny is to verify whether the club meets the criteria of an `active club'. The Scrutiny Committee verifies the team, its playing facilities and ground available as well as tournaments played from the data given by the petitioners themselves in the Club Scrutiny Form (2013) and (2011). Hence the information is provided by the petitioners and the Scrutiny Committee verifies its correctness. If the petitioners dispute the findings of the Scrutiny Committee then remedy of appeal before the Election Commissioner is available and thereafter before the Independent Arbitrator. The petitioners detailed in Annexure 'A' have come directly against the order of the Scrutiny Committee. The issues raised in these petitions are of factual nature and efficacious remedy is available to them before the Election Commissioner and then before the Independent Arbitrator under the PCB Constitution, hence these petitions are not maintainable. So far as the petitioners detailed in Annexures 'B' and 'C are concerned, they have also come against the order of the Scrutiny Committee which they challenged before the Election Commissioner and the Independent Arbitrator. Again the issues raised are factual in nature and these petitioners have availed the remedy provided under the PCB Constitution. Therefore these petitioners cannot re-agitate the same issue through these Writ Petitions.

10. Even otherwise several preliminary objections have been raised by the learned counsel for the Respondent PCB which require adjudication. In the first instance they argued that the petitions have been filed by the cricket clubs through their presidents without due authorization. Review of the record of each of the instant petitions except W.P. No. 30580/2013 shows that the petitioners are all cricket clubs who have filed the petitions through their presidents, without any authorization in favour of the president. There is merit in this objection as the club had to have authorized the president before he could have instituted the instant petitions.

11. The second objection raised is that the Province of Punjab has not been made a party in any of the petitions and this is fatal to the petitions. This objection also has merit in view of the dicta laid down in the case titled 'Government of Balochistan, CWPP&H Department and others vs. Nawabzada Mir Tariq Husain Khan Magsi and others' (2010 SCMR 115) and 'The State through Prosecutor General, Punjab vs. Hafiz Ikram Saeed and others' (2013 SCMR 1045) the Province or the Federation must be impleaded as a party while invoking constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

12. It is further noted that the petitioners in W.P. No. 842/2014 have impugned the scrutiny process conducted in the year 2011. After the order of the Scrutiny Committee they filed an appeal before the Election Commissioner, which was decided on 4.1.2012. It is noted that the petition is hit by the laches and further that alter the 2011 scrutiny, the scrutiny of 2013 has also taken place. Therefore, there is no merit in these petitions.

1. It is also noted that the petitioners in W.P. Nos.14127 and 14128 of 2012 have impugned the scrutiny process of 2011. Thereafter they filed the appeals before the Election Commissioner who dismissed their appeals. Thereafter they availed the remedy before the Independent Arbitrator. These petitioners seek the benefit of order passed in W.P. No. 262/2014. However the said order cannot be applied to the case of the petitioners because they have availed their remedy against the order of the Scrutiny Committee in 2011. Both the Election Commissioner and the Independent Arbitrator have dismissed their appeals and found that they are 'inactive' clubs. Therefore the process of scrutiny and the availing of remedy against the same has been completed and no illegality has been made out in the said orders.

14. Under the circumstances, no case for interference is made out. Petitions are dismissed.

(R.A.) Petitions dismissed

PLJ 2015 Lahore 321

Present: Mamoon Rashid Sheikh, J.

KASHIF RAZZAQ--Petitioner

versus

ADDL. DISTRICT & SESSEIONS JUDGE, etc.--Respondents

W.P. No. 13720 of 2013, decided on 12.12.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of dowry--Return of dowry--Suit was partially decreed to recover her dowry as per list of dowry--In absence of dowry alternate value--Failed to deliver dowry, entitled to recover alternate amount--Validity--Justified in insisting upon being compensated in terms of money as her dowry on petitioner’s own admission either does not exist or is in very bad condition--Petition was dismissed. [P. 323] A

Syed Qamar Ali Rizvi, Advocate for Petitioner.

Mr. Zia-ul-Hassan, Advocate for Respondent No. 3

Date of hearing: 12.12.2014.

Order

MAIN CASE C.M. NO. 2/2013

The instant petition calls into question the judgment dated 16.11.2012 passed by the learned Addl. District Judge, Lahore (Respondent No. 1) and the orders dated 12.09.2012, 17.11.2012 and 12.12.2012 passed by the learned executing Court/Judge Family Court, Lahore (Respondent No. 2) in respect of the execution proceedings filed by Respondent No. 3 against the petitioner vis-a-vis the decrees dated 10.05.2011 & 16.11.2011 passed in favour of Respondent No. 3 in her suit for recovery of dowry.

2. The learned counsel for the petitioner submits that the parties were married but their marriage did not last with the result that Respondent No. 3 sued the petitioner for return of her dowry. Respondent No. 3's suit was partially decreed in her favour through the judgment and decree dated 10.05.2011 in that she was allowed to recover her dowry as per the list of dowry (Exh.P4) or Rs. 60,000/- in lieu thereof. The petitioner did not file an appeal against the decree dated 10.05.2011, however, upon Respondent No. 3's appeal the amount to be paid in lieu of dowry was enhanced from Rs. 60,000/- to Rs. 100,000/- by the learned appellate Court through the judgment and decree dated 16.11.2011.

3. Further submits that an execution petition was filed by Respondent No. 3 and during the course of proceedings therein the petitioner tried to handover to Respondent No. 3 her items of dowry, however, Respondent No. 3's father/attorney refused to receive back the dowry by stating that the items which the petitioner was trying to return to Respondent No. 3 were not part of Respondent No. 3's dowry but were some other items. The matter subsequently came up before Respondent No. 2 when Respondent No. 3 prayed that she may be compensated by payment of Rs. 100,000/- in lieu of her dowry. Respondent No. 2 held accordingly through the impugned order dated 12.9.2012. Feeling aggrieved the petitioner filed a revision petition before Respondent No. 1, which was dismissed through the impugned judgment dated 16.11.2012, where-after Respondent No. 2 passed the impugned orders dated 17.11.2012 and 12.12.2012 for issuance of warrants of arrest of the petitioner.

1. Contends that Respondents No. 1 & 2 erred whilst passing the impugned judgment/orders inasmuch as the petitioner has always been willing to return Respondent No. 3's dowry but she has refused to accept the same on the basis of the flimsy excuse that the items which the petitioner tried to return to her do not form part of her dowry. Contends that as long as the petitioner is willing to handover the dowry to Respondent No. 3 she cannot claim its alternate value. Further contends that the impugned judgment/orders have been passed by mis-appreciation of facts and mis-application of the law.

2. Contends that under the law the petitioner would be only liable to pay the alternate value of the dowry if the petitioner fails to return the dowry to Respondent No. 3, however, in the instant case, as already stated, the petitioner is willing to handover the dowry. The impugned judgment/orders have, therefore, been passed illegally and with material irregularity.

3. The learned counsel for Respondent No. 3 controverts the stance of the petitioner and submits that Respondent No. 3 had clearly prayed for return of her dowry and in absence thereof the alternate value thereof. The decree was passed in favour of Respondent No. 3 for return of her dowry as per Exh.P4 or Rs. 100,000/- in lieu thereof. During the course of execution proceedings Respondent No. 2 directed the petitioner to handover Respondent No. 3's dowry and for this purpose a bailiff was appointed. On the appointed date the father/attorney of Respondent No. 3 went to receive back Respondent No. 3's dowry, however, to his surprise it was noted that the items which the petitioner was trying to handover as the dowry of Respondent No. 3 were not in fact part of her dowry but were some other items. Respondent No. 3's father/attorney registered his protest with the bailiff and declined to accept the items being offered by the petitioner as Respondent No. 3's dowry.

7. Further submits that the petitioner in fact has failed to deliver Respondent No. 3's dowry to her, therefore, she is entitled to recover Rs. 100,000/- from the petitioner as the alternate value thereof in terms of the decree passed in her favour. Prays that the petition may be dismissed.

8. I have considered the arguments of the learned counsel for the parties and have also gone through the record. I find that Respondent No. 3 through her suit had prayed that a decree may be passed in her favour directing the petitioner to handover her dowry as per the list of dowry and in case the items of dowry had been destroyed or were not available then she may be compensated by way of payment of Rs. 250,000/-. Respondent No. 3's suit was partially decreed in the terms that she was allowed to receive back her dowry as per Exh.P4 or Rs. 100,000/- in lieu thereof. Interestingly enough during the trial of the suit the petitioner took up the defence that Respondent No. 3 brought only a few items with her as part of her dowry. And those few items were used by the parties and are lying with him in a very rough condition. These facts have been noted by the learned trial Court in the judgment dated 10.05.2011. It is, therefore, evident that to begin with the petitioner tried to deny the existence of Respondent No. 3's dowry and thereafter during the course of his evidence he took up the plea that whatever few items of dowry were brought by Respondent No. 3 are lying with him in a very rough condition. The above pleas raised by the petitioner were turned down by the learned trial Court as well as by the learned appellate Court and thus a decree was passed against him for return of dowry or Rs. 100,000/- in lieu thereof. As the petitioner himself admitted during the course of the proceedings of the suit that the items of dowry of Respondent No. 3 are in a very rough condition, therefore, I feel that she is justified in insisting upon being compensated in terms of money as her dowry on the petitioner's own admission either does not exist or is in a very bad condition.

1. I, therefore, do not find any infirmity in the impugned judgment/orders.

2. The instant petition, therefore, fails and is dismissed accordingly.

(R.A.) Petition dismissed.

PLJ 2015 Lahore 324[Multan Bench Multan]

Present: Arshad Mahmood Tabassum, J.

MAZHAR ALI QURESHI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN and others--Respondents

W.P. No. 12516 of 2010, heard on 13.2.2014.

Constitution of Pakistan, 1973--

----Art. 199--Ejectment petition--Relationship of landlord and tenant--No written tenancy agreement and relationship of land lord and tenant--Validity--No such admission was available on record on part of petitioner nor had he admitted being a tenant under respondent--Observation of first appellate Court was based upon mis-reading and mis-construction of pleadings of parties. [P. 326] A

Mr. MuhammadNaeem Kareemi, Advocate for Petitioner.

Khawaja Ijaz Hussain Siddiqui, Advocate for Respondents.

Date of hearing: 13.2.2014.

Judgment

Respondent No. 3 instituted an application for ejectment of the petitioner from House No. 5, Block Y, Street D, built upon a piece of land measuring 5 marlas, situated, in New Multan, claiming himself to be landlord and the petitioner a tenant under him. He claimed that rent at the rate of Rs. 6,500/- per month was fixed and the tenant had been paying the same since November, 2008, but he failed to make payment of the same from April, 2009 till the institution of the ejectment petition on 31.05.2010. He, therefore, sought eviction of the petitioner on the ground of default in payment of rent, damage caused to the demised premises and that he required the demised, premises for his personal bona fide need. The petitioner submitted application for leave to defend on the ground that relationship of landlord and tenant did not exist between the parties, rather, the respondent had sold the said house to him through an agreement to sell and that he had instituted a suit for specific performance of agreement to sell, which was pending in the Court of learned Civil Judge, Multan. He further maintained that he never made payment of any amount of rent to the Respondent No. 3. The learned Special Judge (Rent),vide order dated 24.07.2010, dismissed, the application for leave to defend and simultaneously, passed order for eviction of the petitioner from the demised house within a period of 30 days. The petitioner assailed the said order through filing an appeal before the learned DJ, which was decided by a learned Additional District Judge, Multanvide judgment dated. 22.10.2010 and the appeal was dismissed, hence, this petition.

1. Learned counsel for petitioner has argued that both the Courts below have committed illegality by considering the petitioner a tenant under the respondent, although, there was no material available before them to hold so and that in the peculiar circumstances of the case, it was incumbent upon the learned Special Judge (Rent) to frame issue regarding existence of relationship of landlord and tenant and then to decide the matter.

2. Heard.

3. It appears, from the perusal of the contents of application for Leave to Defend, filed by the petitioner that in the said, application he categorically denied the relationship of landlord and tenant between the parties. Since there was no written tenancy agreement and relationship of landlord and tenant had been denied by the petitioner, it was incumbent upon the learned Special Judge (Rent) to allow the application for leave to defend and frame an issue regarding existence of the said relationship between the parties and then to decide the application for ejectment after recording evidence of both the parties. The following observation of the learned Special Judge (Rent) made by him in the impugned judgment appears to be patently illegal and uncalled for:

"Respondent failed to show any title document to counter the ownership of petitioner, hence, by denying the landlord-ship of petitioner, respondent disqualified himself from any discretionary relief."

The fact of the matter is that it was respondent i.e. landlord who had come forward to seek eviction of the petitioner, the alleged tenant, hence, it was for him to establish the relationship of landlord and tenant between them and since there was no document regarding tenancy between the parties, and the petitioner had denied having been inducted in the disputed house as a tenant, the learned Special Judge (Rent) was obliged to grant leave to defend, frame relevant issue, record evidence of the parties and then to arrive at a correct conclusion.

1. The learned first appellate Court has also committed a patent illegality while passing the impugned judgment, wherein he has observed as under:

"There was no need to hold further proceedings under that application especially when the appellant/respondent had straight away admitted existence of tenancy agreement and claimed right of ownership."

1. Having carefully scanned the material available on record, it is observed that no such admission is available on record on the part of the petitioner nor has he admitted being a tenant under the respondent. This being so, the above observation of the learned first appellate Court is based upon mis-reading and mis-construction of the pleadings of the parties.

2. As a sequel to the above discussion, the impugned judgment passed by the learned first appellate Court dated 22.10.2010, and the order passed by the learned Special Judge (Rent) dated 24.07.2010, are not tenable under the law and the same are held to have been passed by them under clear violation of law on the subject and without any lawful authority. Hence, while accepting the instant petition, the same are set aside. The application for leave to defend is hereby allowed and the matter is remanded to the learned Special Judge (Rent). The application for ejectment shall be deemed to be pending before the learned Special Judge (Rent), who shall frame appropriate issue regarding existence of relationship of landlord and tenant between the parties and then to decide the same within the time frame given under the Punjab Rented Premises Act, 2009.

3. Parties shall appear before the learned Special Judge (Rent) on 27.02.2014.

There is no order as to costs.

(R.A.) case remanded

PLJ 2015 Lahore 326[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MANZOOR HUSSAIN and another--Petitioners

versus

Mst.SARDARAN BIBI and another--Respondents

C.R. No. 259-D of 2014, decided on 5.3.2014.

Transfer of Property Act, 1882 (III of 1882)--

----S. 52--Civil Procedure Code, 1908--S. 115--Civil revision--Doctrine of lis pendens--Suit for declaration--Mutation of tamleek was not attested--Discharged onus and shifted on to beneficiaries of mutation--Validity--It was incumbent upon beneficiary of disputed mutation to prove that transaction in question really took place, and same was to be proved by adducing cogent, consistent and unimpeachable evidence--Petitioners had failed to produce even tenuous or slender evidence to substantiate their claim--One of beneficiaries under impugned mutation, had filed consenting written statement to confess claim of plaintiff had virtually sent a death knell to case of petitioners--Furthermore, they did not examine two alleged witnesses to mutation--Withholding of evidence of so many crucial, critical and material witnesses was such a glaring fact that it could not be glossed over or covered up or overlooked or disregarded by Courts below--Petitioners had failed to discharge onus put on them--Petitioners had failed to bring their case within any of clauses of Section 115, CPC calling for interference of High Court. [Pp. 330 & 331] A, B & C

Ch. Muhammad Iqbal, Advocate for Petitioner.

Date of hearing: 5.3.2014.

Order

The petitioners have filed this revision petition to assail the judgments and decrees dated 27.10.2011 and 22.1.2014 passed by learned Civil Judge, Kot Addu and an Additional District Judge, Kot Addu, District Muzaffargarh, respectively, whereby the suit of Mst. Sardaran Bibi, Respondent No. 1 for declaration was decreed and an appeal preferred thereagainst was also dismissed.

2. The facts, in brief, are that Mst. Sardaran instituted a suit for declaration, contending therein that she had not got attested mutation of Tamleek No. 1478 dated 30.6.2001, and the same was procured by Manzoor Hussain and Khuda Bakhsh, her sons by carrying out deception and perpetrating fraud on her in collusion with the revenue authorities. As such the aforementioned mutation was not binding upon her and was ineffective upon her rights. She also prayed for consequential relief, restraining the alienees/alleged transferees from laying claim to the suit land.

1. The above-mentioned suit related to land measuring 8 kanals bearing Khewat No. 109 situated at Village Lal Mir, Tehsil Kot Addu, District Muzaffargarh. The mutation in question purportedly transferred this land to Khuda Bakhsh and Manzoor Hussain in equal shares.

2. As things, stand, Khuda Bakhsh, one of the donees under the aforementioned mutation filed a consenting written statement, conceded to the claim of the plaintiff, while Manzoor Hussain contested the suit on merits. It was insisted by him that his mother, Mst. Sardaran had herself appeared before the Patwari Halqa and the Revenue Officer concerned and had made a 'Tamleek' in his favour as well as Khuda Bakhsh through Mutation No. 1478 dated 30.6.2001. As is borne out by the record, during the pendancy of the lis, Manzoor Hussain transferred the suit land to the extent of his own share to Mst. Husina Bibi, his wife. As a result, Mst. Husina Bibi was also arrayed as one of the defendants. Naturally, she supported the claim of her husband, Manzoor Hussain.

5. The pleadings of the parties gave rise to the following issues:

ISSUES:

1. Whether the plaintiff is owner in possession of the suit land? OPP

2. Whether Mutation No. 1478 dated 30.6.2001 is against law and facts, ineffective upon the rights of the plaintiff and liable to be cancelled? OPP

3. Whether the plaintiff is entitled to the decree as prayed for? OPP

4. Whether the plaintiff has no cause of action to file the suit? OPD

5. Whether the suit is not maintainable in its present form? OPD

6. Whether the suit is less valued for the purpose of Court-fee and jurisdiction? OPD

7. Relief.

6. In the wake of the framing of the issues, the parties to the suit led pro and contra evidence in support of their respective pleas. Muhammad Aslam appeared as PW-1 and testified on oath that he is the special attorney of the plaintiff. He deposed that his mother is 80/90-year-old frail woman. She never appeared before any revenue official and did not get the impugned mutation attested in favour of Khuda Bakhsh and Manzoor Hussain. He was subjected to cross-examination but he stood the ground and did not budge an inch from the stance taken by the plaintiff in the plaint. Exh.P-1 to Exh.P-8 were tendered in evidence as well.

7. In order to rebut the evidence produced by the plaintiff's side Mst. Husina Bibi appeared as DW-1. She stated on oath that her mother-in-law had transferred the suit land to two of her sons. She further deposed that her husband, Manzoor Hussain had transferred the suit land to the extent of 4 kanals to her in lieu of her dower. In the course of cross-examination, she admitted that she was not present when the alleged mutation was attested. She went on to admit that she had heard about the making of `Tamleek' from other members of the family. In the face of her admissions, both the learned Courts below excluded her testimony declaring the same to be just hearsay. However, it was admitted both by Mst. Husina Bibi (DW-1) and Manzoor Hussain (DW-2), the alleged beneficiaries under the mutation in question that the witnesses to the alleged mutation, Lal Khan son of Sultan Khan and Ghasiar Abbas son of Sultan Mehmood are alive. The defendants also tendered in evidence copies of Mutations No. 1478 and 1741 as Exh.D-1 and Exh.D-2.

8. Learned trial Court scanned the entire evidence, attended to the contentions raised by the learned counsel for the parties and after appreciation of the evidence produced by them reached the conclusion that the beneficiaries under the disputed mutation had failed to discharge the onus put on them. It was held by it that the non-production of two crucial witnesses, namely, Lal Khana and Ghasiar Abbas reflected adversely on the claim of the defendants, rather the withholding of their evidence struck at the roots of their case. The non-production of the Patwari Halqa and the Revenue Officer were also adversely commented upon by it. Consequently, the suit of Mst. Sardaran was decreed, and both the mutations attested in favour of Manzoor Hussain and Mst. Husina Bibi were declared invalid, holding the plaintiff to be owner in possession of the suit land.

1. As stated above, an appeal was preferred by Manzoor Hussain and her wife Mst. Husina Bibi, but the same was also dismissed by the learned Additional District Judge vide judgment and decree dated 22.1.2014.

2. Feeling aggrieved by the judgments and decrees passed by the Courts below, Manzoor Hussain and Mst. Husina Bibi have filed this petition on the grounds that both the Courts below did not appreciate that Mst. Sardaran Bibi had not herself entered the witness-box; that the suit was not instituted by her, rather it was the handiwork of Muhammad Aslam Khan who claimed to be her special attorney, that Mst. Sardaran Bibi had also made gifts of land to her other sons. This argument implied that since Mst. Sardaran Bibi had made similar gifts to her other sons, it is to be presumed that she got the disputed mutation attested in favour of Manzoor Hussain and Khuda Bakhsh in the same way, but is not repudiating the same on the asking of Muhammad Aslam and her other sons.

11. Learned counsel for the petitioners has reiterated the afore-noted contentions, besides making the argument that the learned Appellate Court did not give issue-wise findings, rendering its judgment unsustainable in the eyes of law. According to him, both the impugned judgments and decrees suffer from mis-reading and non-reading of evidence produced by the petitioners' side. He argues that the plaintiff failed to discharge the onus placed upon her that the impugned mutation was the outcome of fraud and misrepresentation. He elaborates that it was wrongly held by both the Courts below that she discharged the onus and the same shifted onto the beneficiaries of the mutation in question i.e. the petitioners herein.

1. I have heard the learned counsel for the petitioners at length and gone through the impugned judgments, besides perusing the record of the two Courts below annexed to the revision petition.

2. I cannot subscribe to the argument made by the learned counsel for the petitioners that the judgments passed by the Courts below suffer from the infirmity of misreading and non-reading of evidence. In point of fact, both of them took pains to appreciate the controversy in minutest details. They took note of each and every aspect of the case, in addition to dilating upon the contentions raised before them by the learned counsel for the parties. It was rightly held by both the Courts below that it was incumbent upon the beneficiary of disputed mutation to prove that the transaction in question really took place, and the same was to be proved by adducing cogent, consistent and unimpeachable evidence. The petitioners have failed to produce even tenuous or slender evidence to substantiate their claim. The fact that one of the beneficiaries under the impugned mutation, namely, Khuda Bakhsh had filed the consenting written statement to confess the claim of the plaintiff had virtually sent a death knell to the case of the petitioners. Furthermore, they did not examine the two alleged witnesses to mutation, namely, Lal Khan and Ghasiar Abbas. This is not all. They made no attempt at all to summon the Patwari Halqa and the Revenue Officer concerned, who entered and sanctioned the mutation in question. The withholding of evidence of so many crucial, critical and material witnesses was such a glaring fact that it could not be glossed over or covered up or overlooked or disregarded by the Courts below. They rightly attached the importance to this all-important fact to come to the conclusion that the petitioners have failed to discharge the onus put on them.

As for the case of Mst. Husina Bibi, she claimed to have derived title under Manzoor Hussain, her husband. In the first place, she got the suit land transferred in her name during pendente lite, and her case, if any, stood hit by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882, Secondly, it was admitted by Manzoor Hussain that she had again retransferred the suit land to him, meaning thereby that her claim to the suit land stood extinguished during the very pendency of the suit. Thirdly, when the basic order is void, the superstructure built thereon is to come down crashing with it.

1. This brings me to the argument of the learned counsel for the petitioners that the learned Appellate Court was bound to give issue wise findings. Probably, he had in mind the provisions contained in Order XX, Rule 5, CPC. On the other hand, the learned Appellate Court is not under an obligation to give issue wise findings, which is also evidenced from a perusal of the provisions contained in Order XLI, Rule 31, CPC. Furthermore, a similar argument was repelled by the Supreme Court in the case of "Muhammad Amir through L.Rs. V. Muhammad Sher and others" [2006 SCMR 185].

2. A careful study of the impugned judgment passed by the learned trial Court brings out that it dealt with all material aspects of the case. Therefore, it cannot be said to be falling short of the requirements of law. Even otherwise, such an irregularity, as alleged by the learned counsel for the petitioners, which does not cause prejudice to the case of a party, stands cured under the provisions contained in Section 99 of the, CPC.

3. The upshot of the discussion made above is that the petitioners have failed to bring their case within any of the Clauses of Section 115, CPC calling for interference of this Court. Both the impugned judgments have been passed with jurisdiction, and none of them has been found to be suffering from any material irregularity. They are unexceptionable. The revision petition being devoid of merits is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 332

Present: Syed Muhammad Kazim Raza Shamsi, J.

NAEEM ADIL--Petitioner

versus

A.S.J., etc.--Respondents

W.P. No. 7943 of 2010, decided on 23.9.2014.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 22-A--Constitutional petition--Order of justice of peace--Challenge to--Petitioner had performed his duties in accordance with law being a police official--Even official acts are not liable for prosecution, which fact has not noticed by Ex-officio justice of peace while making direction for registration of case against petitioner, so order passed by Ex-officio justice of peace is liable to be set aside. [P. 332] A

Mr.Shahid Ali Shakir, Advocate for Petitioner.

Mr.Raza-ul-Karim Butt, AAG for Respondents.

Date of hearing: 23.9.2014.

Order

Through this constitutional petition, an order dated 15.4.2010 has been assailed which was passed by learned Ex-Officio Justice of Peace, Jaranwala, District Faisalabad directing initiation of criminal case against the petitioner.

1. The petitioner is a police official and being an Investigating Officer of case FIR No. 882 dated 13.12.2009 he had recommended the said case for cancellation, which report was agreed upon by the concerned authorities giving rise to filing of an application under Section 22-A, Cr.P.C. against the petitioner.

2. After having heard the learned counsel for the parties and perusing the record it is found that the petitioner had performed his duties in accordance with law being a police official. Even otherwise, his official acts are not liable for prosecution, which fact has not noticed by the learned Ex-Officio Justice of Peace while making direction for registration of the case against the petitioner, so the order passed by the learned Ex-Officio Justice of Peace is liable to be set aside.

4. For the foregoing reasons, the petition in hand is accepted and the order impugned is set aside resulting into dismissal of the application filed under Section 22-A, Cr.P.C. by Respondent No. 4.

(R.A.) Petition accepted

PLJ 2015 Lahore 333[Multan Bench Multan]

Present: Shahid Waheed, J.

PIRAN DITTA and others--Petitioners

versus

DUR MUHAMMAD and 3 others--Respondents

C.M. No. 451-C of 2012 in C.R. No. 372-D of 96, decided on 11.9.2014.

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

----S. 12(2)--Misrepresentation--Decree was passed without impleading legal heirs--Validity of judgment--A person may challenge validity of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction under Section 12(2), CPC--No untrue statement of fact or incorrect or false representation on behalf of revision petition was made before High Court. [P. 334 & 335] A & C

Words & Phrases--

----Misrepresentation--Word "misrepresentation" has not been defined in CPC--Thus dictionary may be referred to for determining meaning of word "misrepresentation"--In Black's Law Dictionary, 6th edition, word "misrepresentation" has been defined. [P. 334] B

Mr. Waseem Mumtaz,Advocate for Petitioner.

Mian Muhammad Jamal, Advocate for Respondents Nos. 1, 3 and 4.

Ch. Abdul Sami, Advocate for Respondents Nos. 6, 7 to 9.

Date of hearing: 11.9.2014.

Order

This is an application under Section 12(2), CPC by the daughters of one of the revision petitioner, that is, Peeran Ditta, for setting aside the judgment/order and decree dated 08.03.2011 passed by this Court in C.R. No. 372-D/1996.

2. Briefly the facts of the case are that the Respondents No. 5 to 9 being aggrieved by the judgment and decree of the learned Civil Judge dated 05.10.1995 and that of the learned District Judge, Lodhran dated 11.03.1996 filed Civil Revision No. 372-D/1996 before this Court. Malik Javaid Akhtar Wains, Advocate being the counsel for Respondents No. 5 to 9/revision petitioners appeared before this Court and advanced his arguments. After hearing arguments of learned counsel for the parties, the revision petition was dismissed by this Court videorder and decree dated 08.03.2011.

1. It is the case of the applicants that one of the revision petitioners, that is, Peeran Ditta (revision Petitioner No. 1) had died on 20.10.2010; and thus, to his extent power of attorney, executed in favour of Malik Javaid Akhtar Wains, Advocate had lost its validity; and, the case presented, without impleading the applicants/legal heirs as party, at least on his behalf falls within the ambit of "misrepresentation" within the contemplation of Section 12(2), CPC.

2. The learned counsel for the Respondents No. 1, 3 and 4 has vehemently opposed this application and submits that the same being not maintainable is liable to be dismissed.

3. It is true that a person may challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction under Section 12(2), CPC. But the question is as to whether the case of the applicants falls within the ambit of "misrepresentation". The word "misrepresentation" has not been defined in the Code of Civil Procedure, 1908. Thus dictionary may be referred to for determining the meaning of the word "misrepresentation". In Black's Law Dictionary, 6th edition, the word "misrepresentation" has been defined as follows:

“Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead".

Now in the light of above meaning of the word "misrepresentation", the case on hands is examined. It has neither been averred in the application nor pleaded before this Court during the course of arguments that the facts pleaded by Malik Javaid Akhtar Wains, Advocate were contrary to the record. It means that no untrue statement of fact or incorrect or false representation on behalf of the revision petitioners was made before this Court. Thus, it is not a case of misrepresentation of facts.

6. As regards the authority of said counsel to plead the case on behalf of deceased Peeran Ditta before this Court on 08.03.2011, it is suffice to say that Peeran Ditta alongwith his four sons i.e Ghulam Rasool, Ghulam Sarwar, Ghulam Mustafa and Ghulam Haider being unsuccessful defendants filed civil revision in his life time. The interest of all the defendants/revision petitioners was common. During the pendency of revision petition Peeran Ditta died. It is not the case of the applicants who are daughters of Peeran Ditta that their brothers had colluded with the plaintiffs/respondents of the revision petition meaning thereby that there was no occasion to misrepresent the facts/case before this Court at the time of final arguments of civil revision. Notwithstanding the above, firstly, it was the obligation of the other revision petitioners, who were sons of Peeran Ditta, to bring on record the left over legal heirs of Peeran Ditta, that is, the applicants on record; secondly, it was the duty of the applicants to come forward and become a party in the revision petition; thirdly, other petitioners of civil revision were legal heirs of Peeran Ditta, deceased, therefore, this cannot be said that the order/judgment and decree were passed without impleading the legal heirs of Peeran Ditta. As stated above, it was a common interest of Perran Ditta and other revision petitioners; and, other revision petitioners had contested the revision petition so no prejudice was caused to other revision petitioners and the applicants by the impugned order/judgment and decree. Lastly, the provisions of Order XXII, CPC, which are not applicable to revisional jurisdiction of this Court, have already been amended by the Law Reforms Ordinance, 1972, and if any of the petitioners, dies it does not abate the revision petition, hence the order, in the given circumstances, could be passed in the instant case without impleading the legal heirs of the deceased/Peeran Ditta, as held in the case of Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore (PLD 1949 Lahore 541), Pordil and other v. Barkat and others (PLD 1953 Peshawar 14), Muhammad Sadiq v. Muhammad Sakhi (PLD 1989 S.C 755) and Bashir Ahmad through LRs v. Muhammad Hussain and others (2010 SCMR 822). Even otherwise, the revisional proceedings are always considered as proceedings between a higher Court and a lower Court. This Court after examining the record of the case dismissed the revision petition. The applicants have not alleged that the judgment and decree passed in C.R No. 372-D/1996 suffer from misreading or non-reading of evidence. Thus, in the given circumstances, death of

Peeran Ditta and invalidity of his power of attorney executed in favour of above said counsel was not fatal and, therefore, it is not a case of misrepresentation within the contemplation of Section 12(2), CPC.

1. Upshot of the above discussion is that this application lacks merit; and thus, the same is dismissed. No order as to cost.

C.Ms. No.1091-C & 1165 of 2012.

1. C.M. No. 1091-C/2012 is an application under Section 151, CPC for staying the proceedings of the learned Executing Court during the pendency of C.M.No. 451-C-2012 (application under Section 12(2), CPC). In this application, this Courtvide order dated 23.5.2012 stayed the executing proceedings. Subsequently, Respondent No. 1, Dur Muhammad, filed application i.e C.M. No. 1165-C/2012 for recalling of above said order. Notice of C.M. No. 1165-C/2012 was issued to the other side vide order dated 30.5.2012. These two applications are pending before this Court and are required to be disposed of. In this context, it is suffice to say that since the main application i.e. C.M. No. 451-C/12 has been dismissed, therefore, the said two applications have become redundant and are disposed of accordingly.

(R.A.) Order accordingly

PLJ 2015 Lahore 336[Multan Bench Multan]

Present: M. Sohail Iqbal Bhatti, J.

ZAHOOR AHMED and 13 others--Petitioners

versus

QariMUHAMMAD ASHRAF and 16 others--Respondents

C.R. No. 971-D of 2014, decided on 13.8.2014.

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

----S. 12(2)--Decree was non-existent, forged and mutation was based upon non-existent decree--Maintainability--Plaintiffs had not challenged judgment and decree on basis of fraud and mis-representation, but they had challenged so-called judgment and decree--Plaint being non-existent, forged and fabricated--Judgment and decree was non-existent and mutation was sanctioned on basis of a decree which is non-existent--Judgment and decree could only be challenged through an application under Section 12(2), CPC, if it was in-existence--Judgment and decree was not available in any record and is non-existent, filing of an application is a futile exercise and proper remedy is to file a suit for declaration, hence High Court is of view that application under Section 12(2), CPC could not have been filed and was not maintainable in peculiar circumstances of case. [P. 339] A, B & C

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 100--Thirty years old document was challenged--Presumption of truth--Suit was barred by limitation--Neither title of suit was mentioned nor name of Court was mentioned--Beneficiary of document--Validity--It is an established law that presumption under Art. 100 of Qanun-e-Shahadat Order, 1984 is attached only to those documents which are free from suspicion--Presumption mentioned in Art. 100 of Qanun-e-Shahadat Order, 1984 is permissive and not imperative--Even if a document is 30 years old and is '' produced from proper custody, Court is not bound to presume its genuineness--It is settled principle of law when basic document on basis of which mutation was passed, was not in existence, all superstructure and consecutive mutations falls to ground--A duty was cast upon beneficiary when opposite party challenged very genuineness of document--When a party is a beneficiary of a document allegedly based upon forgery and fraud, onus to prove authenticity of said document would shift upon beneficiary--Petitioners/defendants are beneficiary of documents but their evidence shows that property was transferred on basis of judgment and decree--Defendants/petitioners had failed to prove mutation in accordance with law and any other right transferred to them through mutation which has been challenged in civil suit.

[Pp. 340 & 341] D, E, F & G

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

----S. 115--Concurrent finding--Civil revision--Jurisdiction--Jurisdiction of High Court under Section 115 of CPC is very limited to disturb concurrent findings of fact unless decisions suffer from jurisdictional defect, illegality or material irregularity. [P. 341] H

Ch. Rustam Ali, Advocate for Petitioners.

Date of hearing: 13.8.2014.

Order

Through this civil revision, the petitioners have challenged the judgments and decrees dated 25.10.2011 passed by learned Civil Judge, Vehari and dated 14.07.2014 passed by learned Additional District Judge, Vehari.

1. Facts of the case are that the respondents/plaintiffs filed a suit for declaration to the effect that they are owners in possession through inheritance of Muhammad Ramzan (deceased) and the judgment and decree dated 21.07.1969 is non-existent, forged and Mutation No. 6 attested on 27.09.1969 is based upon the non-existent decree, forgery and, fabrication, against the law and facts and is liable to be set aside. Petitioners/defendants filed a contesting written statement and upon the divergent pleadings of the parties, following issues were framed:--

(1) Whether the plaintiffs are entitled to get decree for declaration as prayed for? OPP

(2) Whether the plaintiffs have no cause of action to file this suit? OPD

(3) Whether the suit of the plaintiffs is not maintainable in its present form? OPD

(4) Whether the plaintiffs are stopped to file the suit due to their own words and conduct? OPD

(5) Whether the suit of the plaintiffs is false and frivolous and the same is liable to be dismissed with special costs? OPD

(6) Relief.

3. The learned trial Court/Civil Judge, Vehari decreed the suit vide judgment and decree dated 25.10.2011. The petitioners/ defendants preferred an appeal which was dismissed by the learned Additional District Judge, Vehari vide judgment and decree dated 14.07.2014, hence this civil revision.

1. Learned counsel for the petitioners argued that the suit of the respondents/plaintiffs was not maintainable in view of the bar contained in Section 12(2) of CPC. He further argued that Mutation No. 6 (Ex-P/1) challenged in the suit is a thirty years old document and presumption of truth is attached to it under the provisions of Article 100 of the Qanun-e-Shahadat Order, 1984. The learned counsel for the petitioners argued that the suit is patently barred by limitation as well as barred by law. He further argued that the impugned judgments and decrees passed by both the Courts below are based upon surmises and conjectures and also based upon material irregularities, and both the Courts below have exercised the powers not vested in them. At the end of his arguments, the learned counsel for the petitioners argued that the mere concurrence of judgments of both the Courts below do not make their decision sacrosanct and the revision petition is maintainable against the concurrent findings of the facts by both the Courts below.

5. I have considered the arguments and perused the record carefully.

6. As regards the argument of the learned counsel for the petitioners to the effect that an application under Section 12(2) of CPC should have been filed. It is observed that the plaintiffs/respondents have not challenged the judgment and decree on the basis of fraud and mis-representation, but they have challenged the so-called judgment and decree, dated 21.07.1969 impugned in the plaint being non-existent, forged and fabricated. At this point, it would be beneficial to reproduce the provisions of Section 12(2) of CPC:

"12(2)--Where a person challenges the validity of a judgment, decree or order upon the plea of fraud, mis-representation for want of jurisdiction, he shall seek his remedy by making an application to the Court which pass the final judgment, decree or order and not by a separate suit."

7. In the present case, the judgment and decree dated 21.07.1969 has been challenged on the grounds of fabrication and forgery. It was further averred in the plaint that the judgment and decree dated 21.07.1969 is non-existent and the mutation is sanctioned on the basis of a decree which is non-existent.

1. Astonishingly, the petitioners/defendants have placed their reliance upon the judgment and decree dated 21.07.1969 but they have failed to produce the said judgment and decree in their evidence. I have also examined the statement of DW-1 who categorically deposed in his evidence that his predecessor-in-interest obtained the land through allotment in an auction conducted by the Government which negates the version of the petitioners/defendants itself and supports the version of the plaintiffs/respondents.

2. Bare perusal of Section 12(2) of CPC clearly manifests that the judgment and decree could only be challenged through an application under Section 12(2), CPC, if it was in-existence. Whenever the circumstances reveal that the judgment and decree is not available in any record and is non-existent, filing of an application is a futile exercise and proper remedy is to file a suit for declaration, hence this Court is of the view that the application under Section 12(2), CPC could not have been filed and was not maintainable in the peculiar circumstances of the case.

3. As regards the arguments of the learned counsel for the petitioners regarding the application of Article 100 of Qanun-e-Shahadat Order, 1984 upon Mutation No. 6 attested on 27.09.1969 being an old document more than 30 years is misconceived as the same mutation was passed in pursuance to a judgment and decree which was not existing at the time of passing of the mutation. Moreover, whereabouts of the judgment and decree dated 21.07.1969 have not been mentioned in the order of Assistant Collector-II who attested the Mutation No. 6 dated 27.09.1969. At this stage, it would be beneficial to reproduce Article 100 of the Qanun-e-Shahadat Order, 1984:--

"100. Presumption as to documents thirty years old.--

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."

11. It is established from the pleadings of the parties that the plaintiffs/respondents from the very outset pleaded that Civil Court never passed any decree in favour of the predecessor of the petitioners/defendants. The Mutation No. 6 which shows on the basis of a decree of the Civil Court, said mutation has been sanctioned; but interestingly neither title of the suit is mentioned nor name of the Court is mentioned in Column 12 of the said mutation. Tariq Masood Patwari while appearing as PW-2 failed to justify the presence of any decree and stated that no decree is available in his record. It is an established law that presumption under Article 100 of the Qanun-e-Shahadat Order, 1984 is attached only to those documents which are free from suspicion. Moreover, the presumption mentioned in Article 100 of the Qanun-e-Shahadat Order, 1984 is permissive and not imperative. Even if a document is 30 years old and is 'produced from proper custody, the Court is not bound to presume its genuineness. The Article says that the Court "may presume" and not that it "shall presume" a document 30 years old and produced from proper custody to be genuine. This Court is of the considered view that where the trial Court in peculiar circumstances of the case has exercised its discretion in not drawing a presumption in favour of the petitioners/defendants in respect of a document and the First Appellate Court finds no reason to interfere with it, the High Court should not interfere in the matter in its revisional jurisdiction.

1. It is settled principle of law when the basic document on the basis of which the mutation was passed, was not in existence, all the superstructure and consecutive mutations falls to ground. A duty was cast upon the beneficiary when the opposite party challenged very genuineness of the document. Reliance in this regard can be safely placed upon 2010 SCMR 5 (Muhammad Idrees and others versus Muhammad Pervaiz and others).

2. When a party is a beneficiary of a document allegedly based upon forgery and fraud, the onus to prove the authenticity of the said document would shift upon the beneficiary. In the present case, the petitioners/defendants are the beneficiary of the documents but their evidence i.e. Mutation No. 6 shows that the property was transferred on the basis of judgment and decree, but DW-1/ Saeed Iqbal himself stated that his predecessor-in-interest obtained the land in year 1969 through allotment in an auction conducted by the Provincial Government. Hence, the stance taken by the petitioners/defendants is contradictory and unreliable. Being the beneficiary of the document, the defendants/petitioners have failed to prove the Mutation No. 6 attested on 27.09.1969 in accordance with law and any other right transferred to them through the mutation which has been challenged in the civil suit.

14. With due deference to the case law produced by the learned counsel for the petitioners PLD 1993 Karachi 631 (Ardeshir Cowasjee and 9 others versus Muhammad Naqi Nawab and 5 others) and PLD 2004 Lahore 305 (Seeds High School through Project Director versus Government of Pakistan through Secretary of Ministry of Law and Justice, Islamabad and 2 others) this Court observes that the above said case-law is not applicable in the present case. The petitioner/defendants have failed to point out any misreading and non-reading of evidence by both the Courts below.

15. The jurisdiction of High Court under Section 115 of CPC is very limited to disturb the concurrent findings of fact unless the decisions suffer from jurisdictional defect, illegality or material irregularity. The Honourable Supreme Court of Pakistan in a judgment reported in 2007 SCMR 870 (Hakim-ud-Din through L. Rs. and others versus Faiz Bakhsh and others) has observed as under:--

"It is established proposition of law that finding on questions of law or fact, howsoever, erroneous the same may be recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under Section 115, CPC unless such findings suffer from jurisdictional defect, illegality or material irregularity".

1. The Honourable Supreme Court of Pakistan in the judgment referred above has laid down the principles as under:

"This section empowers the High Court to satisfy itself upon three matter; (i) that the order of the subordinate Court is within its jurisdiction; (ii) that the case is one in which the Court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the Court has not acted illegally, i.e. in breach of some provision of law, or with material irregularity, i.e., by committing some error of procedure in the course of trial which is material in that it may have effected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate Courts upon the question of fact."

1. This view is also re-affirmed by the Honourable Supreme Court of Pakistan in a judgment reported in 2010 SCMR 5 (Muhammad Idrees and others versus Muhammad Peraiz and others).

2. For what has been discussed above, petitioners/defendants have failed to point out any illegality, material irregularity or defective exercise of jurisdiction by both the Courts below while passing the impugned judgments and decrees, resultantly; this civil revision is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2015 Lahore 337 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmed, J.

IBRAR HUSSAIN SHAH--Petitioner

versus

SyedWARIS SHAH & another--Respondents

W.P. No. 1866 of 2013, decided on 6.2.2014.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 203, 366 & 369--Counterblast to FIR--Order passed u/S. 203, Cr.P.C. is not a judgment in terms of Section 366, Cr.P.C.--Order passed by magistrate does not amount to alteration of earlier judgment which Section 369, Cr.P.C. Prohibits--Order of refusing to summon accused does not amount to an order of acquittal--Validity--Legal position is undoubtedly so and no second opinion is possible. Since an order passed u/S. 203, Cr.P.C. is not a judgment in terms of Section 366, Cr.P.C., the, impugned order passed in second complaint is not offended by provisions of Section 369, Cr.P.C. which prohibit alteration in judgment. [P. ] A

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

----S. 11--Constitution of Pakistan, 1973, Art. 13(a)--Court bound to try and retry a suit or issue in which matter has been in issue in former suit between parties--Question of law--Such a perpetual succession of trials and prosecution would have resulted in a constant jeopardy if not to a person proceeded against, at least to Court, made to undertake ritual. A Court cannot be made to hear and rehear successive complaints of same complainant about same episode till complainant lives or accused dies. [P. ] B

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

----Ss. 200 & 202--Constitution of Pakistan, 1973, Arts. 139 & 199--Constitutional Petition--Enquiry u/S. 202, Cr.P.C. is not in its nature a trial as it ends up neither in conviction nor acquittal--No question of prosecution or punishment more than once--Competency to file complaint--Validity--Although an accused is not before Court at time of recording preliminary statements of complainant and of witnesses u/S. 200 and 202, Cr.P.C. and he is not being tried, yet this process if allowed to be repeated infinitely, will result in consumption of Court's time by same person, a time that is to be equitably distributed amongst all, craving for resolution of their disputes. Although second complaint or successive complaints about same episode at instance of same person or at instance of another person competent to file a complaint unless earlier one had ended in acquittal or conviction, are not barred by law yet this endless succession has to be bridled with reasonableness and there have to be exceptional circumstances for filing and entertaining successive complaints--Concealment of filing and dismissal of earlier complaint by respondent, in circumstances of instant case, will not affect merits of case. order in first complaint was passed by a Court who in its own opinion lacked jurisdiction--Impugned orders passed by Magistrate and Addl. Sessions Judge, respectively summoning petitioner and others/ accused and dismissing petitioner's criminal revision are held to be in conformity with law--Petition has no merits and dismissed.

[P. ] C & D

Malik Waheed Anjum, Advocate for Petitioner.

Syed Zaheer Hassan, Advocate for Respondents.

Mr.Shahid Mehmood Abbasi, A.A.G for State.

Date of hearing: 3.2.2014.

Judgment

The petitioner impugns orders dated 03.04.2013 and 27.7.2013 passed by the learned Magistrate and the learned Addl. Sessions Judge, Rawalpindi respectively, summoning the petitioner in a complaint case and dismissing the petitioner's criminal revision.

1. Respondent Nos. 1 and 7 others filed a private complaint before the learned Judge, Anti-Terrorism Court-II, Rawalpindi against the petitioner and 27 others alleging that the said accused equipped with fire-arms, sticks, iron rods and hatchets launched a criminal assault, damaged the crops and resorted to indiscriminate firing and beat the complainant party who sustained severe injuries. The preliminary statements of Respondent No. 1 and another complainant were recorded. The learned Special Judge, Anti-Terrorism Court-II, Rawalpindi, vide order dated 11.12.2012 dismissed the complaint for the reason that in the circumstances, Section 6 of ATA, 1997 was not attracted, therefore, the Court lacked the jurisdiction; that the complaint was a counterblast to FIR No. 203 dated 07.10.2012 registered at the instance of the petitioner and that the complaint appeared to be false on the face of it. Another private complaint was filed by Respondent No. 1 on 12.12.2012 against the petitioner and 27 others. The learned Magistrate, Rawalpindivide order dated 3.4.2013 summoned the petitioner and others to face the trial. This order was challenged by the petitioner through a criminal revision. It was dismissed by the learned Addl. Sessions Judge, Rawalpindi through the impugned order dated 27.7.2013.

2. It is contended by the learned counsel for the petitioner that after dismissal of the first complaint vide order dated 11.12.2012 on the ground of jurisdiction and on merits, a second complaint is not maintainable; that Respondent No. 1, in his second complaint, has concealed the dismissal of the earlier complaint. As order dated 11.12.2012 dismissing the first complaint was yet in field and had not been set aside by the next higher forum, the summoning of the petitioner and others through the second order amounts to double jeopardy which Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 403, Cr.P.C. do not approve. Further argues that if a second complaint about the same episode is maintainable, there have to be exceptional circumstances and the earlier order has to be absurd, unjust and exceptional.

3. On the other hand, it is contended by the learned counsel appearing on behalf of the complainant that an order passed under Section 203, Cr.P.C. is not a judgment in the terms of Section 366, Cr.P.C., therefore, the impugned order passed by the learned Magistrate does not amount to alteration of the earlier judgment which Section 369, Cr.P.C. prohibits; that Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 403 of, Cr.P.C. prohibit the prosecution and the punishment for the same offence more than once and retrial after he conviction or acquittal has once been ordered. The earlier order passed by the learned Magistrate refusing to summon the accused does not amount to an order of acquittal, therefore, second complaint is maintainable. Relies on I.L.R 1905 (Vol. XXIX) Appellate Criminal 126 titled “Emperor vs. Chinna Kaliappa Gounden and another”, A.I.R. 1930 Rangoon 156, titled Dhana Reddy vs. Emperor”. A.I.R. (31) 1944 Nagpur 327 titled “Namdeo Ganpat Phulmali vs. Emperor” [A.I.R 1962 Patna 316 (V. 49 C 82)] titled Prithvi Bhagat and another vs. Birju Sada", PLD 1978 Supreme Court 121 titled "Syed Alamdar Hussain Shah vs. Abdul Baseer Qureshi and 2 others", A.I.R 1983 Supreme Court 595 titled "'Dr. S.S. Khanna, vs. Chief Secretary, Patna and another", [1991 P.Cr.L.J 274 (Karachi)] titled “Atta Muhammad and others vs. Iqrar Ahmad and another", PLD 2003 Karachi 97 titled "Manzoor Ahmed vs. The State", 2005 P.Cr. LJ 1631 titled "Saeed Ahmed vs. Abdul Shakoor and another", [2011 YLR 428 (Lahore)] titled "Ahmed Din vs. A.S.J and others" and 2011 SCMR 484 titled "Nazir Ahmed vs. Capital City Police Officer, Lahore and another".

4. Heard. Record perused.

5. The earlier complaint filed by the respondent was dismissed on account of lack of jurisdiction of the Anti-Terrorism Court as in the opinion of the learned Judge; there was no element of terrorism; moreover it was a counterblast to FIR No. 203/12 registered at the behest of the petitioner; the occurrence was improbable and the complaint was false on the face of it. In all the judgments cited above, it has been held that the enquiry under Section 202, Cr.P.C. is not in its nature a trial as it ends up neither in conviction nor acquittal, therefore, in case of second complaint, no question of prosecution or punishment more than once for the same offence arises and thus the principle laid down in Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973 and Section 403, Cr.P.C. and the maxim "nemo debet bis vexari pro una et eadem causa" (no person should be twice disturbed for the same cause) is not attracted. The legal position is undoubtedly so and no second opinion is possible. Since an order passed under Section 203, Cr.P.C. is not a judgment in the terms of Section 366, Cr.P.C., the impugned order passed in second complaint is not offended by the provisions of Section 369, Cr.P.C. which prohibit the alteration in the judgment. The pre-requisites for attracting the rule of "autre fois acquit" that, (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a Court of competent jurisdiction, and (3) there must have been a judgment or order of acquittal, (4) the parties in the two trials must be the same, (5) fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial, are non-existent in this case because whatever had taken place earlier, was not a trial.

6. Now comes another question of law. Had Section 369, Cr.P.C. that prohibits the alteration of a judgment not been there, could the scheme of law and the general prudence allow unbridled alterations in the judgment by the same Court? If Section 403, Cr.P.C. was not there, could a person who had been tried for an offence by a Court of competent jurisdiction and convicted or acquitted, while such conviction or acquittal remains in force, be tried again and again for the same offence and be convicted and reconvicted infinitely for the same charge? Had Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 not been there, could a person be prosecuted or punished for the same offence again and again so that he ends up in a prison for having committed a petty offence? Had there not been Section 11, C.P.C. could a Court be bound to try and retry a suit or an issue in which the matter in issue has been in issue in a former suit between the same parties. Such a perpetual succession of trials and prosecution would have resulted in a constant jeopardy if not to a person proceeded against, at least to the Court, made to undertake the ritual. A Court cannot be made to hear and rehear the successive complaints of the same complainant about the same episode till the complainant lives or the accused dies. Although a an accused is not before the Court at the time of recording the preliminary statements of the complainant and of the witnesses under Section 200 and 202, Cr.P.C. and he is not being tried, yet this process if allowed to be repeated infinitely, will result in consumption of the Court's time by the same person, a time that is to be equitably distributed amongst all, craving for the resolution of their disputes. Although second complaint or the successive complaints about the same episode at the instance of the same person or at the instance of another person competent to file a complaint unless the earlier one had ended in acquittal or conviction, are not barred by law yet this endless succession has to be bridled with reasonableness and there have to be exceptional circumstances for filing and entertaining the successive complaints. For instance where the previous order was passed on an incomplete record or on a misunderstanding about the nature of the complaint or the order passed in the previous complaint refusing to summon the accused was manifestly absurd, unjust or foolish or where some facts which could not, even with reasonable diligence be brought before the Court are now being put forth in the second complaint. I place reliance on the judgments I.L.R 1930 (Vol. XII) Revisional Criminal (Lahore Series) 9 titled "Allah Ditta vs. Karam Bakhsh" and [1991 P.Cr.L.J 274 (Karachi)] titled "Atta Muhammad and others vs. Iqrar Ahmad and another".

7. In the instant case, it was only a second complaint and does not exceed the reasonable limit of repetition so was not incompetent on this ground. There is however an exceptional circumstance. The order dated 11.12.2012 has in it the elements of manifest absurdity, unjustification and patent illegality. The moment the learned Anti-Terrorism Court, had come to the conclusion that the complaint lacked the ting of terrorism and any clause of Section 6 of Anti-Terrorism Act, 1997 was not attracted in the circumstances and it had no jurisdiction to try the complaint, it should have refrained, from touching the merits of the complaint. On the one hand, the Court had opined that it lacks jurisdiction and on the other hand, it has exercised the jurisdiction, it lacked and dismissed the complaint after coming to the conclusion that the preliminary statements did not inspire confidence, that the complaint was a counterblast to an FIR, the complaint appeared to be false on the face of it and there was no sufficient material to proceed against the accused. The concealment of the filing and dismissal of the earlier complaint by the respondent, in the circumstances of the instant case, will not affect the merits of the case. The order in the first complaint was passed by a Court who in its own opinion lacked the jurisdiction. In this view of the matter, the impugned orders dated 3.4.2013 and 27.7.2013 passed by the learned Magistrate and the learned Addl. Sessions Judge, Rawalpindi respectively summoning the petitioner and others/accused and dismissing the petitioner's criminal revision are held to be in conformity with law. This petition has no merits. It is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 342[Multan Bench Multan]

Present: Mahmood Ahmed Bhatti, J.

Mst. AMEERAN MAI--Petitioner

versus

INSPECTOR GENERAL OF POLICE PUNJAB and 2 others--Respondents

W.P. No. 11829 of 2014, decided on 9.9.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Children of shaheed--Family claim basis--Recruitment of police constable--Minimum qualification--Barrier of educational standard--Notification--Standard of education was changed--Challenge to--Validity--Notifications having potential to impair existing rights or benefits always apply prospectively, not retrospectively--Minimum educational standard to enlist a driver constable would be matric even for offspring of shaheed or persons applying on family claim basis. [Pp. 344 & 345] A & B

Mr.Shakeel Javaid Chaudhary, Advocate for Petitioner.

Mr. MuhammadJaved Saeed Pirzada, AAG for Respondents.

Date of hearing: 09.09.2014.

Order

Mst. Ameeran Mai filed this petition under Article 199 of the Constitution of Islamic of Pakistan, 1973, contending that her husband, Muhammad Nawaz was serving in the police department, who passed away on 10.5.2011, while his boots were on. In other words, he died in harness. He was survived by the petitioner and his son, Muhammad Imran. Muhammad Imran filed an application with City Police Officer, Multan, Respondent No. 3 on 5.2.2014 requesting that he be inducted into the police as driver constable. Instead of making any order on the aforesaid application, Respondent No. 3 sent it up to Regional Police Officer, Multan, Respondent No. 2 on 12.6.2014.

2. The grievance made by the petitioner is that she was not crying for the moon, rather she was simply demanding her due. In a nutshell, her case is that when her husband passed away on 10.5.2011, the police department was to take on her son, Muhammad Imran as a constable in the light of Standing Order No. 1 of 2008 as amended in June, 2011. According to her, the subsequent notification issued by the respondents in 2014 whereby the standard of education was changed from Middle into Matric did not apply to the case of her son.

3. Learned counsel for the petitioner has reiterated the contentions raised in the writ petition. It was also urged by him that two other persons were accommodated by the respondents, but the same treatment was not being accorded to the petitioner, which is discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contentions, he has placed reliance upon the cases reported as "Messrs Asif Traders and another v. Collector of Customs through Assistant Collector and another" {2014 PTD 1057}, "Muhammad Asif Khan and 173 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 14 others" {2014 PLC (C.S.) 534}, "Atta Ullah and another v. Provincial Police Officer and another" {2014 PLC (C.S.) 766}, "Dr. Syed Ansar Hussain Shah Naqvi v. Khyber Pakhtunkhwa Public Service Commission through Secretary and 4 others" {2014 PLC (C.S.) 879} and "R.M.Gulistan Engineering and Constructors (PVT) Ltd. through Chief Executive v. Collector of Customs (Appeals) and another" {2014 PTD (Trib.) 76}.

1. Learned Law Officer has vehemently opposed this petition, contending that Muhammad Imran, son of the petitioner does not qualify to be inducted into the police department. According to him, he is not a Matriculate, and as such does not come near to the minimum qualification.

2. Arguments heard and record perused.

3. From a perusal of Standing Order No. 1 of 2008 as amended in June, 2011 issued by the then Inspector General of Police, Punjab, Lahore, it is pretty clear that for the recruitment of a constable, the minimum qualification would be Matric or equivalent thereof. This qualification has been set forth in Paragraph No. 4 of the said order. However, in sub-para "c" thereof, an exception has been made for the children of shaheed/family claim basis. For the ease of reference, the same is reproduced hereunder:

QUALIFICATION

(c) On shaheed/family claim basis (in District Police):

"Educational standard will be middle instead of Matric for recruitment of Driver constables on family/shaheed claim basis."

1. It is worth recalling that husband of the petitioner breathed his last on 10.5.2011, when he was performing his duties in the police department as Sub-Inspector. When Standing Order No. 1 of 2008 was amended in June 2011, the case of Muhammad Imran, son of Muhammad Nawaz S.I. was covered by Paragraph No. 4 (c) reproduced herein above. However, he was a minor at that time and could not be inducted into police service. Naturally, he was to bide his time. No sooner had he come of age than he seized the opportunity and moved an application for being taken on as a driver constable. It has not been denied by the respondents that aside from the barrier of educational standard, Muhammad Imran is otherwise well qualified. I fully agree with the learned counsel for the petitioner that once a right has accrued to a person, it cannot be taken away subsequently by issuing another notification. Furthermore, notifications having the potential to impair the existing rights or benefits always apply prospectively, not retrospectively. In this respect, the observations of the Supreme Court of Pakistan made in the case of "Messrs Army Welfare Sugar Mills Ltd. and others. vs. Federation of Pakistan and others" {1992 SCMR 1652) are instructive, which are reproduced hereunder:

"It seems to be well-settled proposition of law that a notification which purports to impair an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction, but, the converse i.e. a notification which confers benefit cannot operate retrospectively, does not seem to be correct proposition of law."

In "Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong" {PLD 1970 SC 439} it was observed that:

"It is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law."

8. With utmost respect to the learned Law Officer, I am unable to subscribe to the argument made by him that the case of the petitioner is hit by Standing Order No. 1 of 2014. No doubt, under the changed policy, from now onwards, the minimum educational standard to enlist a driver constable would be Matric even for the offspring of shaheed or persons applying on the family claim basis. But Standing Order No. 1 of 2014 was to go into effect in the future, and this is evident from the opening paragraph of this order. The same reads as under:

"To standardize the selection process and to ensure the selection of a constable on the basis of merit, following procedure is prescribed which shall be strictly observed in future. (emphasis supplied)

9. For what has been stated above, this petition is allowed. Consequently, Muhammad Imran, son of the petitioner and late Muhammad Nawaz S.I. would be duly considered for recruitment on the basis of his existing educational standard (Middle) provided he fulfils other criteria laid down by the respondents for the recruitment of driver constables.

(R.A.) Petition allowed

PLJ 2015 Lahore 346[Multan Bench Multan]

Present: Abdus Sattar Asghar, J.

MUNIR AHMAD--Petitioner

versus

Ex-OfficioJUSTICE OF PEACE, etc.--Respondents

W.P. No. 9543 of 2013, decided on 16.12.2014.

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

----S. 22-A(6)(iii)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--No registration of criminal case--Discretionary power upon ex-officio justice of peace--No doubt ex-officio justice of peace is obliged to exercise powers vested in him under law in judicious manner with application of mind taking into consideration facts and material of case. [P. 348] A

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 489-F--Criminal Procedure Code, 1898--S. 22-A & B--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Non-registration of criminal case--Issuance of cheque--Bouncing of--Cheque was issued as guarantee relating to Qarz-e-Hasna--Non-payment--Civil liability instead of criminal liability--Validity--Dishonestly issuing of a cheque towards repayment of a loan or fulfillment of an obligation is sine qua non to attract offence under Section 489-F of, PPC--Under Islamic Law 'Qarz-e-Hasna' is a special kind of loan returnable by borrower on his acquiring ability to repay debt--Such kind of loan is advanced on compassionate ground free from interest/mark-up and repayable as and when borrower is able to pay--Qarz-e-Hasna is term used by Almighty Allah Himself in Holy Quran--In instant case of 'Qarz-e-Hasna' issuing of a cheque as guarantee merely connotes an acknowledgement of civil liability in good faith--It cannot be termed as dishonest issuance of cheque in terms of Section 489-F of, PPC--Bouncing of a cheque does not constitute a criminal liability in terms of Section 489-F of, PPC--Ex-officio justice of peace erred in law while passing impugned order and issuing direction to SHO for registration of a criminal case against petitioner--Impugned order suffering from legal infirmity is untenable and amenable to constitutional jurisdiction of High Court in terms of Art. 199 of Constitution is liable to set aside.

[Pp. 348 & 349] B, C, E & F

Qarz-e-Hasna--

----Scope of--Qarz-e-Hasna as a beautiful loan--Holy Quran used term 'Qarz-e-Hasna' to connote spending in order to help and assist religion. [P. 349] D

Rana Muhammad Nazir Saeed, Advocate for Petitioner.

Mirza Muhammad Saleem Baig, AAG for State.

Hafiz MuhammadNaveed Akhtar, Advocate for Respondent No. 3.

Date of hearing: 16.12.2014.

Judgment

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 to impugn the order dated 15.7.2013 passed by the learned Ex-Officio Justice of the Peace Layyah on an application under Section 22-A and B of the Criminal Procedure Code 1898 lodged by Munawar Ahmad/Respondent No. 3 whereby SHO Police Station City Layyah/Respondent No. 2 was directed to register the criminal case against the petitioner.

2. Learned counsel for the petitioner argues that the learned Ex-Officio Justice of the Peace while passing the impugned order has altogether ignored the respondent's assertion in the petition under Section 22-A and B, Cr.P.C. that the impugned cheque was issued to him as guarantee relating to 'Qarz-e-Hasna' and that non-payment whereof entails civil liability instead of criminal liability; that the impugned order for registration of the criminal case against the petitioner in the circumstances of this case is against law and facts, untenable and liable to set aside.

1. Learned counsel for the respondent has opposed this petition with the contentions that since financial liability and issuance of the impugned cheque has been admitted by the petitioner therefore bouncing of the cheque attracts the cognizable offence under Section 489-F of the Pakistan Penal Code 1860 and that the learned Ex-Officio Justice of the Peace was well within his jurisdiction to pass the impugned order which does not suffer from any legal infirmity and that the petitioner has no case to invoke the constitutional jurisdiction of this Court.

2. Arguments heard. Record perused.

3. In terms of Section 22-A(6)(iii), Cr.P.C., Ex-Officio Justice of the Peace may issue appropriate directions to Police Authorities concerned on a complaint regarding non-registration of criminal case. There is no cavil to the proposition that the word 'may' used in the above quoted provision of law confers discretionary power upon the Ex-Officio Justice of the Peace in this regard. No doubt Ex-Officio Justice of the Peace is obliged to exercise powers vested in him under the law in judicious manner with application of mind taking into consideration the facts and material of the case.

4. It will be expedient to reproduce Section 489-F of the, PPC, which reads as under:

"489-F. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not bouncing the cheque"

Bare reading of the aforementioned provision clearly manifests that dishonestly issuing of a cheque towards repayment of a loan or fulfillment of an obligation is sine qua non to attract the offence under Section 489-F of, PPC.

1. Contents of the petition under Section 22-A and B of the, Cr.P.C. transpires that Munawar Ahmad respondent in Para No. 3 of the said application has categorically alleged that he had advanced a sum of Rs. 4,00,000/- as 'Qarz-e-Hasna' to the petitioner who issued the impugned cheque as guarantee in his favour. Under the Islamic Law 'Qarz-e-Hasna' is a special kind of loan returnable by the borrower on his acquiring the ability to repay the debt. This kind of loan is advanced on compassionate ground free from interest/mark-up and repayable as and when borrower is able to pay. Qarz-e-Hasna is the term used by Almighty Allah Himself in the Holy Quran as under:

(i) "Who is he that will loan to Allah, a beautiful loan (Qarz-e-Hasna) which Allah will double and multiply many times? It is Allah that gives (you) want or plenty and to Him shall your return" Surah Baqara (2:245).

(ii) "If you loan to Allah a beautiful loan, (Qarz-e-Hasna) He will double it to your (Credit) and He will grant you forgiveness; For Allah is most Ready to appreciate (Service), most forbearing." Surah Tughaban (64:17).

Allama Abdullah Yousaf Ali in his translation of the Holy Quran has translated the term 'Qarz-e-Hasna' as a 'beautiful loan'. Muhammad Marmaduke Pickthall another renowned Scholar has translated the term 'Qarz-e-Hasna' as a 'goodly loan'. Both the expressions used by the above two Scholars in their translations of the Holy Quran have the same meanings. The Holy Quran used the term 'Qarz-e-Hasna' to connote spending in order to help and assist the religion. This assistance can be financial or otherwise. Needless to say that anything that be spent in the way of Allah is bestowed by Him. It is only because of His graciousness that He calls it a loan that we spend it in His way and He promises to return to us manifold. Bare reading of the above quoted verses of the Holy Quran clearly manifests that the expression 'Qarz-e-Hasna' signifies a loan given with sincerity and devotion. In ordinary practice Muslims use the expression of 'Qarz-e-Hasna' for the loan given and returnable in easy installments and within flexible time. In this case of 'Qarz-e-Hasna' issuing of a cheque as guarantee merely connotes an acknowledgement of civil liability in good faith. It cannot be termed as dishonest issuance of the cheque in terms of Section 489-F of the, PPC. Therefore bouncing of a cheque in such like cases does not constitute a criminal liability in terms of Section 489-F of the, PPC.

1. In view of the above, learned Ex-Officio Justice of the Peace erred in law while passing the impugned order dated 15.07.2013 and issuing direction to the SHO/Respondent No. 2 for registration of a criminal case against the petitioner. The impugned order therefore suffering from legal infirmity is untenable and amenable to the constitutional jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is liable to set aside.

2. For what has been discussed above, this constitutional petition is allowed and the impugned order dated 15.07.2013 passed by the learned Ex-Officio Justice of the Peace is set aside. However, this order will have no affect qua any civil proceedings if lodged by Respondent No. 3 for recovery of the loan against the petitioner before the Court of competent jurisdiction.

(R.A.) Petition allowed

PLJ 2015 Lahore 350

Present: Abdus Sattar Asghar, J.

MUHAMMAD ASGHAR, etc.--Petitioners

versus

HAKIM BIBI, etc.--Respondents

C.R. No. 3342 of 2014, decided on 28.10.2014.

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

----S. 115--Civil revision--Oral gift mutation--Oral gift was completed before reporting factum of gift to patwari halqa for recording of mutation--Failed to mention name of any person/witness before whom donor had orally gifted out property--Part sarkar of mutation was not available--Validity--It is important to note that no time, date or place with regard to offer of gift, its acceptance or delivery of possession is mentioned in written statement or in testimony of witness--Even in rapt roznamcha waqiati there is no mention about any date of offer of gift, its acceptance or delivery of possession by donor to donee--It is an established principle that petitioners being beneficiaries of alleged gift are bound to establish vital ingredients of a valid gift in terms of Para 149 of Principles of Muhammadon Law as compiled by D.F.Mullah, which ordains that it is essential to the validity of a gift that there should be a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the done--Alleged witness did not utter even a single word with regard to already completion of factum of gift before reporting said event to Patwari Halqa, therefore it can safely be concluded that petitioners had miserably failed to adduce any reliable ocular or documentary evidence to establish a valid oral gift--Petitioners had produced only a photo-stat copy of part patwar which does not contain thumb-impressions of donor or Pattidar or Lumberdar--It is reported that he has died--only document produced by petitioners on record i.e. Rapt Roznamcha waqiati allegedly contain thumb-impressions of donor, donee--Donor and her son have categorically denied their thumb-impressions on any statement before Patwari Halqa or Tehsildar Halqa--Petitioners did not make any such effort during course of evidence before trial Court as well as before lower appellate Court--Part sarkar of alleged mutation has been misplaced/lost but he did not bother to bring on record any material in this regard.

[Pp. 354, 355 & 356] A, B, C, D, E, F & G

Limitation of Act, 1908 (IX of 1908)--

----Art. 120--Civil Procedure Code, (V of 1908), S. 115 & O. XLI, R. 27--Declaratory suit--Valid oral gift--Gift pertains to an undivided share of joint khata--Contents of rapt roznamcha waqiati--Validity--No complaint--No confidence inspiring evidence is produced by petitioners to substantiate factum of any valid oral gift--It is an established principle that a part of a joint khata is not capable of actual physical possession--Actual possession of gifted land or delivery by donor to donee has neither any force nor substantiated by any speck of material--In absence of proof of a valid gift in favour of nephew, his aunt would be deemed in joint possession of disputed land--It is an established principle of law that a co-sharer is not required to institute a declaratory suit within six years under Art. 120 of Limitation Act 1908 because no limitation runs against co-sharer to enforce his rights in accordance with law.

[Pp. 356 & 357] H, I & J

PLD 1990 SC 1 & 2005 SCMR 1344, rel.

Ch. Muhammad Yaqoob Sidhoo, Advocate for Petitioners.

Date of hearing: 28.10.2014.

Order

This civil revision under Section 115 of Civil Procedure Code, 1908 is directed against judgment and decree dated 30.10.2010 passed by learned Civil Judge Gujranwala whereby the respondents' suit for declaration etc. was decreed in their favour against the petitioners. It also assails the judgment and decree dated 14.10.2014 passed by learned Additional District Judge Gujranwala whereby petitioners' appeal against the judgment and decree of the learned Civil Judge has been dismissed.

2. The facts briefly stated are that Mst. Hakim Bibi (deceased)/ Respondent No. 1 mother of Muhammad Yousaf/Respondent No. 1-A and Muhammad Rafique/ Respondents No. 2-B lodged a suit for declaration etc. against the petitioners on 21.2.2006 alleging that she is owner-in-possession of the land measuring 29 Kanals 3 Marlas as co-sharer comprising 583/11780 share in Khewat No. 12 situated in village Saich Kalar Tehsil Kamoki District Gujranwala and that impugned oral gift Mutation No. 86 dated 7.4.1990 pertaining to an area measuring 26 Kanals 11 Marlas allegedly executed by her in favour of her nephew Saleem Ullah/father of the petitioners is based on fraud, forgery, against law and facts, void and ineffective as against her rights. It was further alleged in the plaint that she is an illiterate old age rural female and never gifted out the suit land in favour of Saleem Ullah and that she never appeared before the Patwari Halqa or the Revenue Officer to make any statement or to mark any thumb-impressions with regard to alleged gift. Suit was resisted by the petitioners by filing contesting written statement raising preliminary objections with regard to bar of limitation and contending that Mst. Hakim Bibi donor gifted out her property in favour of Muhammad Saleem in presence of witnesses and also delivered the possession thereof at the same time to the donee; that after completion of the oral gift Mst. Hakim Bibi while appearing before the Revenue Officers got recorded Mutation No. 86 dated 7.4.1990 and that Muhammad Saleem was in possession of the suit property since the gift of land in his favour and after his death petitioners being his legal heirs are in continuous possession. Learned trial Court framed the following issues arising out of divergent pleadings of the parties:--

"ISSUES:

(1) Whether the suit of the plaintiff is within time? OPP

(2) Whether the plaintiff is entitled to decree for declaration to the effect that the plaintiff is the owner in possession of land described in Paragraph No. 1 of the plaint and mutation of gift No. 86 dated 7.4.1990 in favour of predecessor-in-interest of the defendants namely Saleem Ullah is against law and facts, fraudulent, inoperative upon the rights of the plaintiff along with the permanent injunction that the defendants be restrained from alienating the disputed property? OPP

(3) Whether the plaintiff has not filed this suit and she has not affixed her thumb impression over the plaint and her son Muhammad Yousaf has filed the suit without the consent of the plaintiff? OPD

(4) Whether the plaintiff has got no cause of action to file the suit? OPD

(5) Whether the plaintiff is estopped by her words and conduct to file the suit? OPD

(6) Whether the defendants are entitled for special costs u/S. 35-A of CPC.

(7) Relief."

3. Mst. Hakim Bibi died during the pendency of the suit whereupon Muhammad Yousaf/Respondent No. 1-A and Muhammad Rafique/Respondent No. 2-B were impleaded as her legal representatives. The said Muhammad Yousaf appeared in the witness box as PW-1 and also produced copy of Jamanbandi for the year 1981-82 (Ex.P-1). On the other hand petitioners examined Muhammad Arshad former Patwari Halqa (DW-1), Muhammad Arshad son of Noor Muhammad (DW-2) and Muhammad Asghar one of the petitioners deposed as DW-3. Petitioners also produced copy of Rapt Roznamcha Waqiati dated 13.2.1999 (Ex.D-1), copy of Mutation No. 86 dated 7.4.1990 (Ex.D-2), copy of record of rights (Ex.D-3), copy of FIR No. 6/2006 (Ex.D-4). After recording the evidence and providing opportunity of hearing to the parties learned trial Court decreed the respondents' suit against the petitioners vide judgment and decree dated 30.10.2010. Being aggrieved petitioners filed appeal before the learned lower appellate Court which was dismissed vide judgment and decree dated 13.1.2012. The said judgment and decree of the learned lower appellate Court was assailed by the petitioners before this Court through Civil Revision No. 193/2012 which was allowed on the ground that point of limitation was not considered by the learned lower appellate Court. Consequently the judgment and decree dated 13.1.2012 passed by learned lower appellate Court was set aside and the matter was remanded vide judgment and decree dated 30.4.2014 with a direction that civil appeal before the learned lower appellate Court would be deemed pending and the same shall be decided after hearing the parties by rendering a well-reasoned and speaking judgment. In the post remand phase the learned lower appellate Court after providing opportunity of hearing to the learned counsel for the parties again dismissed the appeal through impugned judgment and decree dated 14.10.2014, hence this civil revision.

4. It is argued by learned counsel for the petitioners that Mst. Hakim Bibi donor while appearing before Patwari Halqa made an unequivocal statement that she had gifted out the land in favour of the donee whereupon Rapt Roznamcha Waqiati (Ex.D-1) was prepared and mutation (Ex.D-2) was sanctioned which manifest that the gift was complete in all respect. Takes reliance upon the case of Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another (1986 SCMR 1121); that the statements of Muhammad Arshad Patwari Halqa (DW-1) and Muhammad Arshad son of Noor Muhammad (DW-2) have been illegally ignored by the learned Courts below and thus failed to exercise the jurisdiction in accordance with law; that the factum of oral gift reported by the donor to the Patwari Halqa and the Revenue Officer was recorded through Mutation No. 86 dated 7.4.1990 whereas the case was filed on 21.2.2006 i.e. after about 16 years which is hopelessly barred by limitation. Takes reliance upon the cases of (i) Haji Ilahi Bakhsh v. Noor Muhammad and others (PLD 1985 SC 41), (ii) Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs (PLD 2011 SC 657); (iii) Jamila Khatoon and others v. ' Aish Muhammad and others (2011 SCMR 222) and (vi) Mst. Grana through legal heirs and others vs. Sahib Kamala Bibi and others (PLD SC 167). It is further argued that petitioners have also filed an application under Order XLI Rule 27, CPC for additional evidence which has been declined by the learned lower appellate Court against law and facts; that the impugned judgments and decrees passed by learned Courts below suffer from legal infirmity, misreading and non-reading of evidence and the same are liable to set aside.

1. Arguments heard. Record perused.

2. In the contents of the written statement petitioners have categorically contended that impugned oral gift had been fully completed before reporting the factum of gift to the Patwari Halqa for recording of the mutation. Muhammad Asghar one of the petitioners while appearing in the witness box as DW-3 has reiterated this contention in his testimony. In this regard it is important to note that no time, date or place with regard to the offer of gift, its acceptance or delivery of possession is mentioned in the written statement or in the testimony of the said witness. Even in Rapt Roznamcha Waqiati (Ex.D-1) there is no mention about any date of offer of gift, its acceptance or delivery of possession by the donor to the donee. It is an established principle that petitioners being beneficiaries of the alleged gift are bound to establish the vital ingredients of a valid gift in terms of Para 149 of the Principles of Muhammadon Law as compiled by D.F.Mullah, which ordains that it is essential to the validity of a gift that there should be a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the donee. In the written statement petitioners have also failed to mention the name of any person/witness before whom the donor had orally gifted out the property in favour of the donee before reporting the factum of oral gift to the Patwari Halqa. Muhammad Arshad Ex-Patwari Halqa (DW-1) and Muhammad Arshad son of Noor Muhammad (DW-2) alleged witness of Roznamcha Waqiati (Ex.D-1) did not utter even a single word with regard to already completion of factum of gift before reporting the said event to the Patwari Halqa, therefore it can safely be concluded that petitioners have miserably failed to adduce any reliable ocular or documentary evidence to establish a valid oral gift by the donor in favour of the donee before reporting the alleged fact of gift to the Patwari Halqa.

3. Besides it is pertinent to mention that in the above state of affairs Rapt Roznamcha Waqiati allegedly recorded by DW-1 and categorically denied by Mst. Hakim Bibi donor in the contents of the plaint cannot be termed as sufficient evidence to establish the impugned factum of a valid gift. It is on the record that Part Sarkar of impugned Mutation No. 86 dated 7.4.1990 is not available in the revenue record. It is reported that the same has been misplaced or lost. Petitioners have produced only a photo-stat copy of Part Patwar (Ex.D-2) which does not contain the thumb-impressions of the donor or Pattidar or Lumberdar concerned. Even the Revenue Officer who allegedly attested the impugned mutation is not examined. It is reported that he has died. The only( document produced by the petitioners on the record i.e. Rapt Roznamcha Waqiati dated 13.2.1999 (Ex.D-1) allegedly contain the thumb-impressions of Mst. Hakim Bibi donor, Muhammad Rafique son of the donor, Muhammad Arshad (DW-1) and Saleem Ullah donee. Mst. Hakim Bibi donor and her son Muhammad Yousaf (PW-1) have categorically denied their thumb-impressions on any statement before the Patwari Halqa or the Tehsildar Halqa. It was therefore incumbent upon the petitioners to get the thumb-impressions of Mst. Hakim Bibi and her son Muhammad Rafique on Ex.D-1 verified with their admitted thumb-impressions. Petitioners did not make any such effort during the course of evidence before the learned trial Court as well as before the learned lower appellate Court.

4. Record reveals that on 26.7.2014 petitioners lodged an application under Order XLI Rule 27, CPC before the learned lower appellate Court seeking permission to produce copy of report of Office Qanungo dated 15.2.2012, copy of FIR No. 52/2012 P.S. Anti Corruption and copy of entries in dock register dated 7.4.1990 and 8.6.2004 with regard to deposit of Mutation No. 86 dated 7.4.1990 in the Tehsil Office. The application was resisted by the respondents and the learned lower appellate Court dismissed the said application vide order dated 11.10.2014.

5. Rule 27 of Order XLI of the Code of Civil Procedure, 1908 stipulates that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court except when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial reason.

10. In this case the suit was instituted on 21.2.2006 and the petitioners produced the evidence in the year 2009. At the time of producing the evidence it was very much in the knowledge of the petitioners that Part Sarkar of alleged Mutation No. 86 dated 7.4.1990 has been misplaced/lost but he did not bother to bring on record any material in this regard. The proposed documents pertain to the period from 1990 to 2004 i.e. before the institution of the suit. Petitioners did not lodge any such application before the learned trial Court or before the lower appellate Court in the first round of litigation. Proposed documents therefore are not necessary to resolve the real matter in controversy between the parties i.e. a valid oral gift in favour of the petitioners. In the peculiar circumstances of the case learned lower appellate Court has rightly refused the petitioners' application under Order XLI Rule 27 of the, CPC through a well reasoned order dated 11.10.2014.

11. In this case subject matter of the impugned gift is an area measuring 26 Kanals 11 Marlas comprising 19/384 share in Khewat No. 12 situated in village Saich Kalar Tehsil Kamoki District Gujranwala. It is also evident on the record that total holding of Mst. Hakim Bibi is 29 Kanals 03-Marlas in the said Khewat equal to an area measuring 583/11780 share. The impugned gift therefore pertains to an undivided share of a joint Khata. Mst. Hakim Bibi an old illiterate lady the alleged donor was having two sons at the time of alleged gift. Contents of Rapt Roznamcha Waqiati (Ex.D-1) bear that impugned gift was made by the donor in lieu of services rendered by Saleem Ullah. There is nothing in the evidence that what services in fact the said Saleem Ullah had ever rendered to the donor motivating her to gift out her agricultural land in favour of her real nephew instead of her real sons. No reason therefore is brought on the record for making alleged gift by the donor in favour of her real nephew while bypassing her real sons against whom there was no complaint. In the above circumstances no confidence inspiring evidence is produced by the petitioners to substantiate the factum of any valid oral gift Reliance is made on the case of Muhammad Latif v. Ghulam Hussain and others (2005 SCMR 1344).

12. It is an established principle that a part of a joint Khata is not capable of actual physical possession therefore petitioners' plea that actual possession of the gifted land or delivery by the donor to the donee has neither any force nor substantiated by any speck of material. Subject matter of the impugned gift of land is a part of a joint Khata owned by the donor along with her nephew. In absence of proof of a valid gift in favour of nephew, his aunt Mst. Hakim Bibi would be deemed in joint possession of the disputed land. The rule i.e. mere non-

participation in the profits would not constitute ouster of a co-sharer laid down in the case of Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) therefore is squarely applicable to the facts and circumstances of this case.

13. It is an established principle of law that a co-sharer is not required to institute a declaratory suit within six years under Article 120 of the Limitation Act 1908 because no limitation runs against the co-sharer to enforce his rights in accordance with law. Argument of the learned counsel for the petitioners that the respondents' suit was barred by limitation, therefore is devoid of any force and repelled accordingly.

1. I have carefully gone through the facts of the cases cited by the learned counsel for the petitioners which are altogether distinct and distinguishable from the facts of the instant case. The cited cases therefore are of no help to the petitioners.

2. In view of the above, concurrent findings on facts and law in the absence of any jurisdictional error or material irregularity cannot be interfered with in the exercise of revisional jurisdiction. Accordingly, this civil revision petition having no merits is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 357

Present: Abdus Sattar Asghar, J.

ABDUL AZIZ--Petitioner

versus

MUHAMMAD YOUSAF--Respondent

C.R. No. 224 of 2015, decided on 27.1.2015.

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

----S. 115--Suit for specific performance of agreement to sell--Administration of oath--Took signature and thumb impressions on order sheet and after administration of oath, suit was dismissed--Question of--Whether a party who had made offer to decide matter on oath on Holy Qur’an can resile from such an offer--Scrutiny of proceedings--Validity--During lengthy cross-examination respondent had made a spontaneous offer accepted by petitioner and trial Court also acted swiftly without adhering to safeguards suggested by Supreme Court as rule of prudence to ensure safe administration of justice--Trial Court was obliged to give reasonable time to parties to think over matter in order to extricate themselves from hasty decisions before appending their signatures on their statements--Trial Court failed to exercise its jurisdiction in accordance with law to ensure safe administration of justice--Petitioner has no case to invoke revisional jurisdiction of High Court for interference in impugned judgment. [Pp. 361 & 362] A, B & C

Mr. Muhammad Zaman Mangat, Advocate for Petitioner.

Date of hearing: 27.1.2015.

Order

This civil revision under Section 115 of Code of Civil Procedure 1908 is directed against the judgment dated 24.12.2014 passed by learned District Judge Mandi Baha-ud-Din.

2. Brief facts leading to this civil revision are that Muhammad Yousaf respondent lodged a suit for specific performance of agreement to sell dated 16.1.2010 against the petitioner. The suit was resisted by the petitioner through written statement while contending that the impugned agreement to sell is fictitious, forged, void and ineffective as against his rights. Consequently learned trial Court framed issues as arising out of divergent pleadings of the parties and invited respondent's evidence in order to discharge the burden of proof. In the course of evidence Muhammad Yousaf respondent appeared in the witness box as PW-1 on 03.9.2014. During cross-examination respondent stated that he was ready to take Oath on Holy Qur'an and further stated that if the petitioner takes up the key of the disputed Havaili on Holy Qur'an he (the respondent) will withdraw his suit. The petitioner accepted the offer and thereafter learned trial Court stopped recording further statement of the respondent and kept the case pending for administration of oath. After an interval at 11.30 AM proceedings were again taken up by the learned trial Court and recorded that petitioner has taken up the key from the Holy Qur'an and thus dismissed the respondent's suit as withdrawn.

1. Above noted proceedings and order dated 03.9.2014 passed by learned trial Court were assailed by the respondent through appeal before learned District Judge Mandi Baha-ud-Din on the ground that on 03.9.2014 during the lengthy cross-examination he could not manage his emotions on account of repeated interference and hooting by the petitioner and that due to heat of discussion and spontaneous emotions being overwhelmed he made an offer to the petitioner to take the key of the disputed Havaili on Holy Qur'an who went out to take ablution and in the meanwhile learned trial Court took his signatures and thumb impressions on the order sheet and after administration of the Oath his suit was dismissed; that in the given circumstances learned trial Court was obliged not to take the proceedings of Oath rather to adjourn the case as a note of caution in the light of the guidelines provided by the Superior Courts in order to protect valuable rights of the petitioner; that impugned proceedings and order dated 03.9.2014 passed by the learned trial Court being against law and facts are liable to set aside.

2. The learned first Appellate Court after providing opportunity of hearing to both the parties, scanning the evidence and scrutinizing the record of learned trial Court as well as after going through the dictum laid down by the Hon'ble Apex Court in case of Muhammad Ali v. Major Muhammad Aslam and others (PLD 1990 SC 841) passed the impugned judgment dated 24.12.2014 in the following manner:--

"10. The facts of the referred case and the facts of the appeal in hand are identical in nature. In the case in hand also the appellant during lengthy cross-examination in a spur of moment, during a heated state of mind, had made an offer which was accepted by the other party and the learned trial Court had also acted too swiftly, which was against the aforementioned dictum laid down by the superior Courts.

1. On the other hand, the respondent side had referred 1993 CLC 1552 [Quetta] case titled Malik Khan Muhammad alias Khanay vs. Moulvi Luqman and 3 others and 2001 MLB 128 [Lahore] case titled Rafi Kashif vs. Imtiaz Ahmad and 2 others. As far as the above said referred cases are concerned, it is observed that in both of the cases proper applications were made by the other party and it was accepted by the opponent party and then the matter was decided on oath. Whereas in the case in hand all the proceedings had been conducted during the lengthy cross-examination of the appellant, during a heated state of mind of the appellant, hence I am more inclined to follow the dictum laid down in Khushi Mohammad's case supra.

2. Pursuant to my above discussion the appeal filed by the appellant is accepted. The proceedings conducted by the learned trial Court on 03.09.2014 for the recording of proceedings on Holy Quran and order whereby the suit of the appellant had been dismissed are hereby set aside. The case is remanded to the learned trial Court, where it should be placed before the learned successor Judge of trial Court on 13.01.2015 for further proceedings in accordance with law. There is no order as to the costs. Record of the learned Court be sent back immediately. File of this Court be consigned to the record room after its due completion and compilations.”

3. It is argued by learned counsel for the petitioner that since the respondent had made a conscious offer at his own accord without any duress or coercion requiring the petitioner to take the key of the disputed Havaili on the Holy Qur'an which was accepted by him therefore respondent cannot be allowed to resile from it; that the learned trial Court after proper administration of Oath had rightly dismissed the respondent's suit; that the learned first Appellate Court erred in law and facts while accepting the appeal and remanding the case through the impugned order.

4. Arguments heard. Record perused.

5. The moot point in this case is as to whether a party who has made an offer to decide the matter on Oath on Holy Qur'an can resile from such an offer. In this regard it will be expedient to take guidance from the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ali v. Major Muhammad Aslam and others(PLD 1990 SC 341). Relevant extract of the dictum reads below:--

“------ Basically, therefore, the principle still is that there is no section in the Oaths Act, 1873, dealing with the question whether a party who has made an offer to be bound by the statement on oath, or special oath, by the opposite party or witness, can resile from such an offer and the matter being one left to be decided on general principles, the question whether the party who has made an offer can resile from it, depends upon the facts and circumstances of each case.

1. In cases such as the present, where it is not possible to lay down guiding principles as to what facts or circumstances in a given case would induce a judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More often that not, during examination of a party or a witness, or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement On the Holy Qur'an or his Holy book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, or which otherwise, from the apparent conduct of any of the parties, appear to be such as would make a mockery of the oath. The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over-emphasised, for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, nor do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases, because Sections 9 to 11 of the Oaths Act do not admit of such intrusions, but we would say that all this may be treated as a note of caution, for a Court is as much bound to ensure the solemnity of these proceedings, as the parties are bound to respect them."

2. In the light of the above quoted observations of the Hon'ble Apex Court scrutiny of proceedings recorded by the learned trial Court in this case clearly manifests that during lengthy cross-examination respondent had made a spontaneous offer accepted by the petitioner and the learned trial Court also acted swiftly without adhering to the safeguards suggested by the Hon'ble Supreme Court of Pakistan as rule of prudence to ensure safe administration of justice. In the peculiar circumstances of this case the learned trial Court was obliged to give reasonable time to the parties to think over the matter in order to extricate themselves from hasty decisions before appending their

signatures on their statements. In the instant case record transpires that no separate statements regarding offer by the respondent or acceptance by the petitioner were recorded by the learned trial Court rather their signatures were obtained on the margins of interim orders sheets. Impugned proceedings before the learned trial Court therefore lack due care, caution and solemnity. The learned trial Court thus failed to exercise its jurisdiction in accordance with law to ensure safe administration of justice. In view of the above learned first Appellate Court carefully scrutinizing the proceedings of the learned trial Court in the light of the guideline provided by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ali (supra) has rightly set aside the proceedings and order of the learned trial Court. I do not find any legal infirmity or jurisdictional error in the impugned judgment passed by learned Appellate Court. Petitioner therefore has no case to invoke the revisional jurisdiction of this Court for interference in the impugned judgment.

1. For the above reasons this revision petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 362

Present: Abdus Sattar Asghar, J.

HajiMEHR MUHAMMAD--Petitioner

versus

KAMRAN MUKHTAR KHAN--Respondent

C.R. No. 276 of 2015, decided on 2.2.2015.

Limitation Act, 1908 (IX of 1908)--

----Art. 159--Civil Procedure Code, (V of 1908), O. XXXVII, Rr. 1 & 2--Suit for recovery--Barred by limitation--Period of limitation for filing leave to appear and defend suits--Ex-parte proceedings--Validity--Penal provision can only be invoked when summon was issued and served upon defendant in accordance with law--When law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law could not be termed as a mere technicality--Neither summon was served upon respondent in a prescribed manner nor copy of plaint was ever disbursed upon him, therefore, trial Court has rightly granted permission for leave to appear and defend suit in order to ensure safe administration of justice. [P. 365] A & B

Malik Shabbir Ahmad, Advocate for Petitioner.

Date of hearing: 2.2.2015.

Order

This Civil Revision under Section 115 of Civil Procedure Code, 1908 is directed against order dated 21.1.2015 passed by learned Additional District Judge Lahore whereby respondent's application for leave to appear and defend the suit for recovery under Order XXXVII Rules 1 & 2 of the Code of Civil Procedure, 1908 has been allowed.

1. It is argued by learned counsel for the petitioner that despite proclamation in the newspaper respondent failed to appear before the learned trial Court and was proceeded ex-parte vide order dated 26.4.2014; that consequently on 6.5.2014 respondent through counsel lodged an application for setting aside the ex-parte order dated 26.4.2014 and further lodged an application on 13.6.2014 seeking leave to appear and defend the suit which is barred by limitation; that the learned trial Court has miserably failed to appreciate this legal point and thus erred in law and facts while granting leave to appear and defend the suit through the impugned order dated 21.1.2015 which is untenable and liable to set aside.

2. Arguments heard. Record perused.

3. Sub-rule (1) of Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908 stipulates that all suits under the said provision be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix 'B’. It may be expedient to reproduce the Form No. 4 ibid which reads below:--

"To

(Name description and place of residence)

WHEREAS ___________ has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs. ____________ balance of principal and interest due to him as the ______________ of a __________ of which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs. _____________ and the sum of Rs. _____________ for costs together with such interest, if any, from the date of the institution of the suit as the Court may order.

Leave to appear may be obtained on application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit.

GIVEN under my hand and the seal of the Court, this __________ day of _____________.

Judge"

1. Bare reading of the afore-quoted provision and contents of Form No. 4 makes it crystal clear that the plaintiff as well as the Court concerned are obliged to ensure that a copy of the plaint is annexed with the prescribed summons in order to enable the defendant to obtain leave to appear and defend the suit within stipulated period of 10 days from the service of summons. Needless to say that Article 159 of the Limitation Act, 1908 furnishes 10 days' period of limitation for filing leave to appear and defend such suit and the time from such period will start when the summon is served.

6. In view of the above legal position, perusal of the record reveals that in this case respondent was not served upon through a prescribed summons rather a publication was issued against him for 26.4.2014 when he was proceeded against ex-parte. Consequently he lodged an application on 6.5.2014 seeking setting aside of the ex-parte order. On the said date i.e. 11.6.2014 learned counsel for the respondent while appearing before the learned trial Court submitted that criminal case FIR No. 608/2013 under Section 489-F, PPC P.S. Factory Area Lahore was registered against the respondent and he remained in jail from 1.4.2014 to 26.5.2014 and in the meanwhile ex-parte proceedings were initiated against him on 26.4.2014 during the period of his detention in the jail. Faced with the situation learned counsel for the petitioner made a statement before the learned trial Court that he has no objection on acceptance of application for setting aside the ex-parte proceedings subject to cost. Consequently learned trial Court vide order dated 11.6.2014 accepted the respondent's application for setting aside the ex-parte proceedings dated 26.4.2014 subject to cost of Rs. 1000/- and adjourned the case for 20.7.2014 for filing a petition for leave to appear and defend the suit.

1. It is obvious on the record that copy of the plaint was never served upon the respondent therefore respondent's application for leave to appear and defend the suit lodged on 13.6.2014 is not hit under Article 159 of the Limitation Act, 1908. Needless to say that

penal provision can only be invoked when the summon was issued and served upon the defendant in accordance with law. When the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law could not be termed as a mere technicality. Reliance is made upon Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). In the instant case neither the summon was served upon the respondent in a prescribed manner nor copy of the plaint was ever disbursed upon him therefore learned trial Court has rightly granted the permission to the respondent for leave to appear and defend the suit in order to ensure safe administration of justice. I do not find any legal infirmity, irregularity or jurisdictional error in the impugned order.

1. For the above reasons this Civil Revision having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2015 Lahore 365 (DB)[Multan Bench Multan]

Present: Muhammad Qasim Khan and Sikandar Zulqarnain Saleem, JJ.

MUHAMMAD REHMAN--Petitioner

versus

DISTRICT POLICE OFFICER, VEHARI and 4 others--Respondents

W.P. No. 11546 of 2014, heard on 28.8.2014.

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

----S. 154--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Quashing of FIR--Question of--Whether registration of 2nd FIR is nullity in eye of law--Validity--Oral information regarding commission of a cognizable offence is communicated to an officer incharge of police station, it shall be reduced into writing by him or under his direction and be read over to informant. [P. 369] A

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 154--Quashing of second FIR--Substantiate plea for quashing of FIR--Constitutional jurisdiction--It is settled proposition of law that High Court has no jurisdiction to resolve disputed question of fact in a constitutional jurisdiction--Quashing of FIR by appreciating for petitioner would amount to bypass normal procedure of law prescribed by, Cr.P.C.--Accused cannot be allowed to avoid ordinary course of trial before Court of competent jurisdiction, if prima facie offence is made out against him, by resorting to constitutional jurisdiction of High Court--Quashing of FIR during investigation amounts to throttling investigation process, which is not permissible in law--By now, it is settled too; that ordinary course of trial before Courts would not be allowed to be deflected by resorting to constitutional jurisdiction of High Court, if prima facie an offence has been committed--By allowing constitutional petition it would be erred in law to all procedures prescribed under, Cr.P.C. which would become redundant--To quash FIR on ground that there are two FIRs regarding same occurrence and case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by Court with duties of police--If police is restrained from investigating matter which is their statutory duty--It is always duty of investigating agency not only to investigate matter in a manner to connect accused with commission of crime but also to save innocent persons from agony of endless investigation and trial.

[Pp. 370 & 371] B, C, D, E, F, G & H

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Quashing of FIR--Constitutional jurisdiction--Question of--Whether registration of second FIR is nullity in eye of law--FIR was required to be quashed--Validity--It is a settled proposition of law that High Court is duty bound to protect life, liberty, dignity and honour of every citizen of Pakistan--When statute law is not sufficient to meet a situation, it must take extraordinary measures and provide protection to him--Inherent jurisdiction of High Court under Section 561-A, Cr.P.C. is neither alternative nor additional in its characteristics and is to be rarely invoked only in interest of justice so as to redress of grievances for which no other procedure is available and provision should not be used to circumvent ordinary course of criminal procedure--Petitioner has not been able to make out any exceptional ground for quashing of FIR, therefore, petitioner has no case to invoke constitutional jurisdiction of High Court. [Pp. 371 & 372] H, I & J

Malik Bakht Yar Mahdi, Advocate for Petitioner.

Mr. Aurangzeb Khan, AAG for Respondents.

Date of hearing: 28.8.2014.

Judgment

Sikandar Zulqarnain Saleem, J.--After hearing the learned counsel for the petitioner notice is issued to the respondents. Learned AAG present in Court accepts notice on behalf of official respondents and with the concurrence of both the learned counsel for the parties, this case is decided today as a Pakka case.

1. Muhammad Rehman petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing of FIR No. 344/2014, dated 04.08.2014, registered under Sections 302/148/149, PPC read with Section 7 of Anti-Terrorism Act, 1997 at Police Station City District Vehari on the ground that Report registered at the instance of Respondent No. 5 Ali Arsalan is second in series regarding which occurrence, case FIR No. 341 of 2014 was already registered at the instance of Respondent No. 4 under Sections 324/337-H2/148/149 of The Pakistan Penal Code, 1860 against the present petitioner and others.

2. Brief facts relevant for decision of instant writ petition are that initially a case FIR No. 341 dated 2.8.2014 under sections-324/337-H2/148/149, PPC at Police Station City Vehari was lodged against the petitioner and others at the instance of Respondent No. 4 alleging therein that on the intervening night of 1/2.8.2014 Tasawar Hussain brother of the complainant and Azhar Hussain went to X-Block Peoples Colony for making movie on the marriage of Mohsin Raza. Zeeshan Haider, Rehman, Asghar, Wasim, Ghulam Bheek alias Abubakar Gujjar, Zahid, Luqman, Umer and 15 unknown persons who were armed with firearm weapons also came in the said ceremony and asked Azhar Hussain to make their movie also. Azhar Hussain replied that he would make their movie just after changing the video cassette, whereupon the accused persons flared up and tortured him brutally who sustained injuries on different parts of his body. On hue and cry the complainant alongwith his brother Tasawar Hussain, Muhammad Atif and Nazar Abbas attracted to the spot. The accused persons hit their Pajero straightly to Tasawar Hussain brother of the complainant who fell on the ground and within their views the accused persons passed over the said Pajero on the person of Tasawar Hussain, whereupon he became injured severely.

3. However, story of the second FIR Bearing No. 344 dated 1.8.2014 registered at the instance of Respondent No. 5 Ali Arsalan son of Tasawar Hussain deceased is that on 1.8.2014 Azhar Hussain uncle of the complainant who was a movie maker was hired by Mohsin Raza resident of X-Block Street No. 8 to make the video film of his marriage. Nazar Abbas his brother was also alongwith Azhar Hussain. At about 12.30 a.m. Nazar Abbas uncle of the complainant rushed towards the complainant and informed that Azhar Hussain was being tortured by the accused persons whereupon he rushed to rescue his life. On this information, the complainant along with his father Tasawar Hussuin and Mazhar-ul-Islam alias Muhammad Atif ran towards the place of occurrence. As soon as they reached in Jernail Chowk they saw in the street light that a Dala Surf Pejaro type driven by Zahid and Ghulam Bhaik alias Abubakar and Rehman armed with automatic firearm weapons were making firing and creating terrorism and were forcing Azhar Hussain to run in front of above said vehicle. Tasawar Hussain father of the complainant came forward to rescue Azhar Hussain who set him aside. Ghulam Bheek alias Abu Bakar and Rehman (petitioner) raised a lalkara to kill him whereupon Zahid accused trampled Tasawar Hussain with above said vehicle while passing over him and then he again trampled the father of the complainant while reversing the above said vehicle. The accused persons escaped from the place of occurrence while making aerial firing. The complainant along with Amjad Javed and Muhammad Atif real uncle of complainant attended the injured and took him to DHQ Hospital Vehari. From where the injured was referred to the Nishtar Hospital, Multan after providing first aid treatment to him. The injured succumbed to the injuries yesterday at 7.30 p.m. The complainant alongwith witnesses remained busy to rescue the injured whereupon they could not get registered the case. Meanwhile, the accused persons manipulated the medical from the DHQ Hospital and registered a performa FIR of their own choice in connivance with the SHO, which was in fact was not registered by the uncle of the complainant rather he was busy with the injured at the Nishtar Hospital, Multan.

The motive behind the occurrence as alleged in the FIR was stated to be that the accused persons had brought a dancing girl on the marriage ceremony and they were enjoying nude dance and asked the uncle of the complainant namely Azhar Hussain to make their video film continuously but on discontinuation of DVD they flared up and started for torturing him and also broke the camera and when Azhar Hussain on the intervention of Nazar Abbas rescued his life and ran from there, the accused persons have committed the above said occurrence.

1. Learned counsel for the petitioner contends that the story given in the second FIR by the complainant is an afterthought and does not appeal to the prudent mind as reasons advanced for registration of the second FIR are flimsy, fictitious and the second FIR stood registered just to bring more heinousness into the allegations and to fill up the lacunas in the prosecution's case. It is further submitted that in both the FIR, the place of occurrence, time of occurrence, articles used for the commission of alleged offence, set of the accused and the witnesses, the injured/deceased, initiation of the alleged occurrence are the same, hence, there was no need for registration of second FIR as registration of second FIR is nothing but abuse of process of law and continuation of the same would be nothing but the wastage of time. It is next contended that this Court has ample power to quash/cancel the FIR and redress the grievance of petitioner being custodian of fundamental rights of the citizens; hence, this writ petition be accepted and the FIR impugned in this petition is liable to be quashed.

2. It is resisted by the learned Assistant Advocate General with the arguments that writ petition seeking quashing of the FIR is not maintainable as number of efficacious remedies are available to the aggrieved petitioner; that the writ petition is lodged with mala fide intention; that petitioner has not been able to make out any factual or legal infirmity to seek quashing of FIR by invoking the constitutional jurisdiction of this Court, therefore, this petition is liable to be dismissed.

3. We have given patient hearing to learned counsel for the parties, learned AAG and gone through the record.

4. Question for consideration is whether in the given circumstances registration of second FIR is nullity in the eye of law and as such FIR is required to be quashed.

5. Text of Section 154, Cr.P.C. suggests that if oral information regarding commission of a cognizable offence is communicated to an officer incharge of police station, it shall be reduced into writing by him or under his direction and be read over to the informant. No line of distinction and demarcation has been made in the said provision of law putting embargo to lay information before police even after the registration of first Report regarding the same occurrence.

6. Perusal of accusation contained in both the reports suggests that it is a case of two versions. Firstly, introduced by Amjad brother of the deceased being complainant of FIR No. 341 of 2014 is altogether different from the second version introduced by Ali Arsalan son of Tasawar Hussain deceased with reference to initiation of occurrence, motive of the occurrence, accused participated in the occurrence, the roles played by the accused during the alleged occurrence. In view of the matter, version introduced at the instance of Respondent No. 5 Ali Arsalan, entirely gives a different version and the same is not an elaboration, explanation or amplification of first FIR, therefore, there is no legal bar for registration of second FIR.

7. Needless to say that for quashing of FIR following grounds are ordinarily considered:--

(a) jurisdictional defect patent on the record;

(b) patent violation of some provision of law;

(c) allegations contained in the FIR does not constitute an offence; and

In the instant case, however, learned counsel for the petitioner has not been able to make out any of the above noted grounds to substantiate his plea for quashing of FIR. It is settled proposition of law that High Court has no jurisdiction to resolve the disputed question of fact in a constitutional jurisdiction. It has been squarely settled that quashing of the FIR by appreciating the arguments advanced by the learned counsel for the petitioner would amount to bypass the normal procedure of law prescribed by the Criminal Procedure Code, 1898. Certainly, an accused cannot be allowed to avoid ordinary course of trial before the Court of competent jurisdiction, if prima facie the offence is made out against him, by resorting to constitutional Jurisdiction of High Court. Quashing of FIR during the investigation amounts to throttling the investigation process, which is not permissible in law. By now, it is settled too; that ordinary course of trial before the Courts should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court, if prima facie an offence has been committed. By allowing the constitutional petition it would be erred in law to all the procedures prescribed under Code of Criminal Procedure, 1898 which would become redundant. Quashing the proceedings summarily would create chaos due to following:-

(i) To interfere in sphere allotted to the executive organ.

(ii) There is likely hood of injustice in summary disposal.

(iii) The cases are quashed at initial stages then it would create law and order situation as the people may resort to taking revenge from the opposite party.

The conduct and manner of investigation normally is scrutinized under the constitutional jurisdiction which might amount to interfere in police investigation as the same could not be substituted by the Court. To quash the FIR on the ground that there are two FIRs regarding the same occurrence and case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with the duties of the police. Even otherwise, accused have following alternate remedies under the code of Criminal Procedure.

(1) To prove their innocence they can appear before Investigating Officer.

(2) Can approach the competent higher authorities of the Investigating Officer having power vide Section 551-of Cr.P.C.

(3) Investigating Officer has to submit case to the concerned Magistrate after completion of the investigation and in case of innocence of accused the Magistrate has power to discharge them under Section 63 of the, Cr.P.C.

(4) The Magistrate even at the time of taking of cognizance, would refuse to take cognizance in case he finds the accused innocent. Under the orders of the concerned Magistrate, Rule 24.7 of Police Rules, 1934 makes a provision for cancellation of case during the course of investigation.

1. It is for the Investigating Officer to collect the evidence, connected with the case and if he finds that no offence is committed, he may submit a report under Section 173, Cr.P.C. to the learned Ilaqa Magistrate if he finds otherwise, he has to submit report accordingly. The investigation of case is held with a view to ascertain whether or not an offence has been committed. In my humble view, it will tantamount to act against the spirit of the law, if the police is restrained from investigating the matter which is their statutory duty. It is always the duty of the investigating agency not only to investigate the matter in a manner to connect the accused with the commission of crime but also to save the innocent persons from the agony of endless investigation and trial.

2. It is a settled proposition of law that a High Court is duty bound to protect life, liberty, dignity and honour of every citizen of Pakistan as enunciated in the Constitution of Pakistan, 1973. Therefore, when the statute law is not sufficient to meet a situation, it must take extraordinary measures and provide protection to him. It must, therefore, extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan come to the citizen as an aid or safeguard. Similarly, the inherent jurisdiction of the High Court under Section 561-A, Cr.P.C. is neither alternative nor additional in its characteristics and is to be rarely invoked only in the interest of justice

so as to redress of grievances for which no other procedure is available and the provision should not be used to circumvent the ordinary course of criminal procedure. In the case of Dr. Ghulam Mustafa vs. The State and others (2008 SCMR 76), the Hon'ble Apex Court has settled that the High Court has no jurisdiction to quash the FIR while exercising Constitutional power under Article 199 of the Constitution or under Section 561-A, Cr.P.C. except in exceptional circumstances. Learned counsel for the petitioner has not been able to make out any exceptional ground for quashing of the FIR, therefore, petitioner has no case to invoke the constitutional jurisdiction of this Court.

No material or substance is available on record on the basis whereof, FIR No. 344/2014, dated 04.08.2014, registered under Sections 302/148/149, PPC read with Section 7 of Anti-Terrorism Act, 1997 at Police Station City District Vehari be quashed neither any convincing argument has been advanced nor is any legal aspect available to help the petitioner in this regard. It is neither the case of double jeopardy nor a case of double incrimination.

1. For what has been discussed above, we do not find any factual or legal infirmity in registration of the FIR. This petition having no merits is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 372

Present: Ijaz-ul-Ahsan, J.

WEST ZONE CRICKET ASSOCIATION through President--Petitioner

versus

PAKISTAN CICKET BOARD (PCB) through Chairman and 4 others--Respondents

W.P. No. 16470 of 2014, decided on 23.6.2014.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Resolution of executive committee was tampered with unauthorized additions--Forged document--Validity--Petitioner has tendered an unconditional apology and promises to be careful in future--A serious warning has, however, been issued to him--Judicial restraint is called for--Apology is accordingly accepted. [P. 375] A

Mr.Waqas Hassan Mir, Advocate for Petitioner (Later withdrew his power-of-attorney).

Mr.Irfan Khan Ghazanvi, Advocate for Petitioner.

M/s.Tafazzal H. Rizvi and Haider Ali Khan, Advocates for Respondent/PCB alongwith Mr. Salman Naseer, Senior Manager Legal PCB.

Mr. Abid Saqi, Advocate for Applicant (in C.M. No. 1810/2014).

Date of hearing: 23.6.2014.

Order

Through this constitutional petition, the petitioner challenges the impugned action dated 02.06.2014, whereby the meeting of council of West Zone Cricket Association was held and 12 representatives elected under supervision of Respondent No. 3. The petitioner also seeks a declaration that the letter dated 15.05.2014 be declared without lawful authority and illegal to the extent of signing of list of 12 representatives by all three office bearers of petitioner association. In addition, a prayer is also made to set aside letter dated 25.09.2014. On setting aside of the aforesaid letter/action, a direction is sought to notify the names of 12 representatives of West Zone Cricket Association for election of LCCA/LRCA as per list submitted by the President of petitioner association.

1. This petition came up for hearing on 12.06.2014 when notice was issued to the respondents with the direction to file parawise comments. Notice was also issued on C.M.No. 2/2014 for interim relief.

2. Respondents No. 1 to 3 have entered appearances through their learned counsel. At the very outset the learned counsel for the respondents has pointed out that the resolution of the executive committee appended as Annexure A (Page 12 of this petition), which authorizes Mr. Irfan Khan Ghazanvi, Advocate to initiate proceedings and file and defend the petitions before this Court is a forged document. The petitioner has committed criminal offence, he be proceeded for fraud and forgery and punished in accordance with law. It is further submitted that a petition has been filed without authorization and the fact that a document has been forged, furnishes sufficient basis for dismissal of this petition.

3. Confronted with the aforesaid situation and on being pointed out that the resolution of the Executive Committee dated 30.05.2014 appended at page 12 of the petition is a forged document, the learned counsel for the petitioner (Mr.Waqas Hassan Mir, Advocate) has candidly submitted that he was unaware of such forgery and seeks permission to withdraw his Power of Attorney. In the facts and circumstances narrated above, is allowed to do so. At this stage Mr. Irfan Khan Ghazanvi, Advocate has attempted to salvage the situation on behalf of the petitioner by making a half hearted effort to argue the matter on merits. He has been asked to explain how the petition can be heard on merits when it is prima facie established that a forged document has been filed with the petition, which constitutes authorization to file this petition. He has nothing much to say.

4. It appears that the petitioner had earlier filed W.P.No. 15481/2014, which was subsequently withdrawn. A resolution of the Executive Committee dated 30.05.2014 was attached with the said petition. However, when the same was withdrawn, the same resolution with additions made by hand without any authorization has been attached with this petition. Comparison of both documents shows that they are photocopies of each other, however, the following words have specifically been added by hand, which were not present in the original resolution:--

اور ہم زون کے صدر جناب ذوالفقار احمد کو مکمل اختیار دیتے ہیں کہ وہ عدالتیں مذکورہ میں قانونی چارہ جوئی کرئے اور اس سلسلے میں مزید کسی دوسرے وکیل کو مقرر کریں۔

The addition has obviously been made to appoint some advocate in addition to Mr.Ghazanvi to represent the association, because in the earlier petition Mr.Ghazanvi did not succeed in getting relief.

6. I have specifically asked Mr.Irfan Khan Ghazanvi, Advocate to show that the additions have duly been made by the Executive Committee or under any lawful authorization, given by it. He has been unable to provide any such authorization or advance any cogent or legally sustainable justification for the same. On comparison of the said document and on hearing the learned counsel for the parties, it is clear and obvious that the resolution of the Executive Committee dated 30.05.2014 has been tampered with, unauthorized additions have been made and the document in question is forged. The conduct of the petitioner is clear to the Court. No effort has been made to show either that the document is not forged or that the additions in the document were made in accordance with law after due authorization. I am minded to proceed against the President of petitioner association in the matter, however, the learned counsel for the petitioner has

tendered an unconditional apology and promises to be careful in future. A serious warning has, however, been issued to him. In these circumstances, I am of the view that judicial restraint is called for. The apology is accordingly accepted. However, in the circumstances narrated above, this petition cannot proceed further. It is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2015 Lahore 375

Present: ShahKhawar, J.

DR. RAB NAWAZ MALIK--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

W.P. No. 6735 of 2014, decided on 29.10.2014.

Punjab Civil Servants (Appointment & Condition of Service) Rules, 1974--

----R. 22--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment on adhoc basis--Difference in adhoc appointment and appointment by promotion on acting charge basis--Promotion--Right to be retained on adhoc basis--A person performing duties on acting charge basis exercises full powers of office and could not be considered to be appointed on basis of as stopgap arrangement--Promotion against post of S.R.S. is considered to be regular appointment--Petitioner could not claim continuation of his adhoc appointment against post in presence of promotion by duly constituted departmental promotion committee as approved by competent authority. [Pp. 377 & 378] A

Mr.Qamar uz Zaman Butt, Advocate for Petitioner.

Mr. Jahangir Ali Sheikh, Advocate for Respondent No. 5.

Haji Muhammad Aslam, Advocate/Legal Advisor for Respondent Nos. 3 to 4.

Malik Muhammad Bashir Lakhesir, A.A.G. for Respondents.

Date of hearing: 29.10.2014.

Order

Brief facts of the case are that in the year 2011 a post of Senior Registrar Surgery in Nishtar Hospital, Multan was vacant to be filled through a process of Punjab Public Service Commission (PPSC). Due to exigency and prolong process of selection through PPSC, the competent authority decided to fill said posts on adhoc basis in terms of Rule 22 of the Punjab Civil Servants (Appointment & Condition of Service) Rules, 1974. After observing codal formalities and on the recommendation of selection committee, petitioner was appointed as Senior Registrar Surgery by the competent authority on adhoc basis for a period of one year. Same process was resorted to by the respondents and vide order dated 15.03.2013 petitioner was again given extension. An application filed by petitioner to Respondent No. 2 was turned down regarding conversion of his appointment as Senior Registrar Surgery on contract basis andvide order dated 20.03.2012, petitioner was again appointed as Senior Registrar Surgery (BS-18) on adhoc basis for a period of one year or till availability of regular incumbent/selectee of Punjab Public Service commission whichever is the earlier.

1. Through instant writ petition, petitioner has challenged the notification dated 29.04.2014 whereby consequent upon recommendations of departmental promotion committee as many as twenty eight doctors including Respondent No. 5 was promoted as Senior Registrar Surgery (BS-18) on acting charge basis with immediate effect. Said notification was endorsed vide impugned order dated 02.08.2014 whereby Respondent No. 5 upon promotion/ appointment as Senior Registrar Surgery (BS-18) on acting charge basis was further adjusted in Surgical Unit-IV Nishtar Hospital, Multan against the post vacated by the petitioner on his relieving/terminating adhoc appointment with immediate effect.

2. The petitioner vide office order dated 02.05.2014 was relieved/terminated from adhoc appointment as Senior Registrar Surgery and Respondent No. 5 was promoted/ appointed on the same post.

3. Learned counsel for the petitioner has also relied upon the case reported in 2003 SCMR 291 "Dr. Naveeda Tufail and 72 others versus Government of Punjab and others" and contends that continuation of adhoc appointment for considerable length of time would create an impression in the mind of employee that he was being really considered to be retained on regular basis. Further that, adhoc appointment had created a legitimate expectancy in the mind of petitioner of his retention on regular basis.

4. Learned counsel for Respondent No. 5 vehemently opposed this petition by contending that petitioner was performing duties as Senior Registrar Surgery on adhoc basis which reflects from the order dated 20.03.2014 issued by Respondent No. 2. It is further contended that petitioner had no vested right to claim continuity in his adhoc appointment as Respondent No. 5 alongwith twenty seven other doctors was recommended by the duly constituted departmental promotion committee and was promoted as Senior Registrar Surgery (BS-18) on acting charge basis. Reliance has been placed in the case reported in 2003 SCMR 291 "Dr. Naveeda Tufail and 72 others versus Government of Punjab and others" 1982 SCMR 46 "Ghulam Sarwar versus Province of Punjab" and PLJ 1998 Tr.C. (Services) 77 "Muhammad Ashraf versus Government of Punjab" wherein it is held that adhoc appointment against the post in public sector is a stop-gap arrangement which is not a permanent characteristic of civil service. Adhoc employee has no right to hold the post beyond the period for which he was appointed and does not confer any right on the incumbent for regular appointment. It is further contended that Respondent No. 5 had superior right over the petitioner as having been duly promoted by departmental promotion committee.

5. Heard.

6. Appointment letter dated 30.06.2011 issued by Respondent No. 2 is annexed by the petitioner which reflects that he was appointed as Senior Registrar Surgery (BS-18) on adhoc basis in Nishtar Hospital, Multan for a period of one year or till availability of regular incumbent/selectee of Punjab Public Service Commission, whichever is earlier with specific terms and conditions. After the promotion of Respondent No. 5 alongwith twenty seven other doctors, on the recommendation of departmental promotion committee, a vested right has been accrued in favour of Respondent No. 5. This is a recognized practice that an incumbent could be promoted to the higher scale on availability of a vacant post. Admittedly the post of Senior Registrar Surgery (BS-18) was vacant which was occupied by the petitioner as a stopgap arrangement. Respondent No. 5 after having been promoted by the DPC was adjusted against the same which did not infringe any of the fundamental rights of the petitioner.

7. It is also to be noted that there is great difference in adhoc appointment and appointment by promotion on acting charge basis. The word "adhoc" itself reflects that an incumbent is holding the charge as stopgap arrangement as the vacant seat is not filled up through due process. In the same manner, word "acting charge" has wider connotation. A person performing duties on acting charge basis exercises full powers of the office and could not be considered to be appointed on the basis of as stopgap arrangement. Promotion of Respondent No. 5 against the post of Senior Registrar Surgery (BS-18) is considered to be regular appointment. The petitioner could not claim

continuation of his adhoc appointment against the post in presence of promotion of Respondent No. 5 by the duly constituted departmental promotion committee as approved by the competent authority.

1. The petitioner could not make out a case, where he, could claim a vested right to be retained on adhoc basis in place of Respondent No. 5. The instant writ petition being not competent is declined in above terms.

(R.A.) Petition dismissed

PLJ 2015 Lahore 378[Multan Bench Multan]

Present: ShahKhawar, J.

MUHAMMAD IQBAL, etc.--Petitioners

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 2171 of 2010, decided on 24.12.2014.

Punjab Civil Servant Pay Revisions Rules, 1977--