SCMR 2000 Judgments

2000SCMR 1

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan, Munir A. Sheikh, Wajihuddin Ahmed, Maulana Muhammad Taqi Usmani and Mahmood A Ghazi, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad---Appellant

versus

Mufti IFTIKHAR-UD-DIN and another---Respondents

Shariat Appeal No. 18 of 1991, decided on 25th March, 1999.

Per Khalil-ur-Rehman Khan, J.--

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8,. 10 & 21---Constitution of Pakistan (1973), Art.203-F---Provisions of Ss.8, 10 & 21 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 do not contain anything contrary to Injunctions of Holy Qur'an and Suhnah of Holy Prophet.

The power to declare an evacuee property as trust property attached to a charitable, religious or educational trust or institution was given to the Chief Settlement Commissioner under the Settlement Laws and the decisions given in this adjudicatory, quasi judicial proceedings were made appealable to the High Court by providing for an appeal under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and section 5(3) of the Displaced Persons (Land Settlement) Act, 1958. The power to make adjudication as to status of property vests under Evacuee Trust Properties (Management and Disposal) Act, 1975 with the Chairman under section 8 and then a revision lies to the Federal Government which is to be decided by Secretary/Additional Secretary to be nominated by the Government.

The proceedings held for deciding questions are more of the nature of inquisitory proceedings and not adversary proceedings as in these proceedings firstly the Chairman and then the Secretary being the judges in their own cause, act as a matter of exception to the general rule that 'no one can be a judge in his own cause'. These officers as such are not arbiters between the two parties litigating over a 'lis' but the officers holding inquisitory proceedings. An arbiter in adversary proceedings grants liberty to the parties to produce whatever evidence they may like to produce in support of their respective claims whereas the Presiding Officer of inquisitory proceedings, in addition to allowing the parties or persons interested in the matter to produce the evidence of their own choice is duly bound to collect material and the evidence relevant and pertaining to the matter under inquiry of his own if all the available evidence has not been produced during the inquiry. This difference in the inquisitory proceedings and adversary proceedings is apparent and well established. The Officer presiding over the inquisitory proceedings would be failing in his duty if he bases his decision on the evidence produced by the parties alone when the relevant evidence which could be made available and examined, was kept out of consideration observing that the same was not produced by the parties themselves before him.

The other important feature of the statute in question primarily is to manage, maintain and dispose of the evacuee trust property in accordance with the provisions of the Act and the rules, schemes or the directions made or issued thereunder. The hierarchy of the officers created under the Act has been assigned the duty and the obligation to preserve, maintain and manage these properties. Almost all the persons who had created these trusts or had the responsibility to manage these trusts as trustees, had either died or migrated and as such are not available and in their place the Board has been constituted to perform the functions assigned to them. These being evacuees and the Evacuee Trusts, the Muslims and other citizens have no direct interest therein and as such no right can be claimed by any-one in the properties vesting in these trusts and for that reason the general rule that no one can be a judge of his own cause cannot be applied in the inquisitory proceedings to be held by the Chairman for the purpose of deciding the nature or status of the property in exercise of his powers vesting in him under section 8 of the Act. In view of these features, it cannot be said that the dispute to be disposed of by the Chairman is a dispute between third party and the Board and that such an individual cannot be expected to have a detached view while scrutinizing a highly sensitive and disputed question of law and fact. Moreover, disputes as to status of Hindu trust properties stood settled firstly during the stage of rehabilitation under the Rehabilitation Laws and then during the settlement operations under the two Settlement Laws. At that stage the power vested in the Chief Settlement Commissioner and the appeal against the decisions rendered by him lay before the High Court. If any such dispute can be raised at this late stage, the same is mostly to be agitated by anyone who has not got any vested interest in the property itself. In such a situation, it cannot be claimed that the dispute so raised is a dispute between the two parties and such a dispute for adjudication is to be necessarily adjudicated upon in exclusive adjudicatory proceedings. But need to have the question, whether property is attached to a Hindu religious or charitable trust, adjudicated, may arise to a person who has been transferred evacuee property, urban or rural, under the two Settlement Laws and dispute is raised that the said property is not trust property, and so was not transferable at all or its transfer was not bona fide. The first question would fall to be adjudicated upon under section 8 while the bona fides of the transfer is required to be determined under section 10 of the Act.

Again, if a person is claiming that the transfer to him is bona fide, he is obviously not denying the trust nature of the property. On the other hand, if the transfer made to him is not bona fide then if he seeks the declaration as to status/nature of the property under section 8, he is not a person having an interest in the property and he is not, as such, a party, seeking relief in his favour and thus, cannot claim that the Board represented through the Chairman is his adversary and as such adjudication of the dispute raised by him should be made by an independent person/authority.

Even with regard to the dispute raised by transferee, rights in the evacuee property were directed to be transferred and conveyed to the allottees of the agricultural land, rural or urban, by amending the Displaced Persons (Land Settlement) Act, 1958 by Ordinance XIII of 1964. Only such evacuee properties could be transferred under these two laws which formed part of the compensation pool constituted under both the Settlement Laws. The properties attached to evacuee, charitable, religious or educational institutions or trusts were specifically excluded from the compensation pools constituted under these laws and as such the same were not available for transfer to the displaced persons or others. But despite such exclusion ordained by law, some of the properties attached to the evacuee trust properties were found to have been allotted and transferred against satisfaction of verified claims. The question, therefore, arose whether such claimants, who had been transferred such properties, should be ousted from properties or the transfers made bona fide should be allowed to remain intact and the Board should be compensated otherwise on account of bona fide utilization of these properties in satisfying the claims of displaced persons. The Federal Government took the decision not to desettle such transferees in whose favour transfer orders were made in a bona fide manner, being not conscious of the trust nature of the property, by the competent Settlement Officer. Such transfers as such were decided to be validated by enacting section 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975. The target date for transfer of rural land was fixed June, 1964 as the permanent rights were decided to be conveyed vide substituted section 16 of the Displaced Persons Land Settlement) Act, 1958, vide Ordinance XIII of 1964 and for urban land/property prior to June, 1968 with reference to the decision of the Federal Government taken in this behalf. By substituting section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, vide Ordinance XIII of 1964, sale of trust properties was also contemplated. A blanket validation, however, in respect of bona fide utilization of the properties under the two Settlement Acts, was made by enacting section 10, Evacuee Trust Properties (Management and Disposal) Act, 1975.

The purpose of enacting section 10 was to save the utilization bona fide of the trust properties in favour of the bona fide transferees in satisfaction of the verified claims of the displaced persons. So the objective was to confer the rights which otherwise, in law, could not have been vested because the transfers made and obtained were otherwise illegal for the simple reason that the properties being trust did not form part of the compensation pool and no jurisdiction existed for transferring such trust properties even in satisfaction of the verified claims.

Thus, the impact of section 10 is not that the vested rights of the parties have been usurped with retrospective effect rather the rights have been preserved and safeguarded by declaring the bona fide transfers as valid and hence if such transferees have made further transfers the same stand preserved and honoured. On the other hand, if the transfer orders obtained were not bona fide, for instance the order having been passed by an officer who was not otherwise authorized to pass the order, or the transfer order passed stands vitiated on account of inherent legal infirmity, such transfers, even in absence of section 10, would be void as the property being evacuee trust property, was not available for transfer even under the orders of a competent settlement officer. Thus, no right on account of such transfer by the original transferee or by a vendee from such transferee, could be claimed.

The provisions of sections 8 and 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, seen .in the above perspective, show the objective of the law i.e. the preservation, management and maintenance of the evacuee trust properties in conformity and in discharge of the commitment made .in the inter dominion agreement. It is also apparent that the right of any citizen or any other party is not sought to be prejudicially affected in achieving the objective of preservation, management and maintenance of the trust properties and as such the principle that no one can be a judge in his own cause, does not apply. Seen in this context, verse 59 of Surah An-Nisa' and the incident of appointing an Arbiter (Hakam) in the matter of acquisition of the house of Hazrat Abbas do not apply.

The constitution of the Board and the powers vested in the Chairman and other officers under the Rules and the Schemes framed under the Act have been conferred in order to achieve the objectives of law and the powers to collect evidence contemplated under section 21 of the Act which is necessary for the purpose of holding inquisitory proceedings for the purposes of collecting material so as to arrive at the truth and ward off the unwarranted claims made to grab the property, belonging to the evacuee, religious and charitable institutions or trusts. There was no ground for thinking that the rule of equality before the law and equal protection of the law embodied in Fundamental Right No. 15, had been placed in jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment as compared with other evacuee properties.

Sections 8, 10 and 21 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 do not contain anything contrary to the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).

In re: Evacuee Trust Properties (Management' and Disposal Act (XIII of 1975 and Syed Tassadaq Hussain v. Federal Government of Pakistan, decided on 9-1-1989 distinguished.

The Punjab Province v. L. Sita Ram and others PLD 1956 FC 157; Devachand Maljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and 6 others PLD 1965 SC 356; Ata Ullah Malik v. The Custodian, Evacuee Property, West Pakistan, Karachi and others PLD 1964 SC 236; Rauf Ahmad v. Sedretary to the Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad and 9 others PLD 1991 Lah. 33 and A.R. Niazi, Advocate and others v. Pakistan through the Secretary, Settlement and Rehabilitation Department, Rawalpindi and 4 others PLD 1968 SC 119 ref.

Per Wajihuddin Ahmed, J.--

The Chairman of the Evacuee Trust Property Board, in the context of the quoted provisions, does not act as a Judge stricto senso but, more or less, in a quasi-judicial capacity. Besides, the proceedings before him are inquisitional in nature rather than of an adversary character. On this plane alone the concept of one becoming a judge in his own cause does not apply to the Chairman. In the same context, it does not appear relevant that the person or persons, agitating contextual grievances before the Chairman, are not equipped with any vested right. Such a scenario, even though material in other respects, has no bearing on the Chairman, disqualifying himself on the score of becoming a judge in his own cause.

Punjab Province v. L. Sita Ram and others PLD 1956 FC 157; Ata Ullah Malik v. The Custodian, Evacuee Property, West Pakistan and others PLD 1964 SC 236 and Rauf Ahmed v. Secretary to the Government of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad and 9 others PLD 1991 Lah. 33 ref.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 9 & 14---Constitution of Pakistan (1973), Art.203-F---Provisions of Ss.9 & 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 do not contain anything in themselves which can be said to be in derogation of the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet.

Trusts and institutions created by evacuees and the properties attached with the exodus of their managers and Hindus needed care and protection and as such special laws with special provisions were enacted which laws created authorities/tribunals of exclusive jurisdiction with a view to achieve the objectives set out in the laws themselves. The purpose was not to defeat the rights of citizens rather to have the dispute raised determined without protracted trial through adversary proceedings. Anyone claiming any right in the property treated as evacuee property or evacuee trust property is required to agitate the matter before the authority/tribunal of exclusive jurisdiction created under the statute and in case anyone is aggrieved of the decision so rendered the remedy lay before the High Court and then to the Supreme Court under Constitutional jurisdiction. Even the jurisdiction of t-he Civil Court was not altogether barred as jurisdiction of the Civil Court was barred to decide the question which was determinable by the tribunal /authority under the statute. A provision similar to section 9 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, was contained in section 12 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance XV of 1949), the object of which was to exempt evacuee property from legal process so that there may be no interference with the administrative control of the Custodian and order would be hit by section 12 only if it directs or enables the taking of some action with respect to evacuee property. Every order which has reference to evacuee property is not necessarily within section 12. A simple declaration that an order passed in respect of evacuee property is void does not in any way affect the control of the Custodian and is not excluded from the jurisdiction of the Civil Courts and that grant of such a declaration is competent. This would show that solely on account of any similar provisions as those contained in section 12 the jurisdiction of the Civil Court does not stand barred, altogether under section 9 of Act of 1975 and it was for this reason that section 14 has been added barring the jurisdiction of the Civil Courts but that section again limits it in respect of any matter which the Federal Government or an office appointed under Act of 1975 is empowered to determine. Even under civil law process cannot be issued against property of the trust itself as in a suit against the endowment, even when the debt is a secured debt the proper decree to be passed is to direct the defendant to pay the decretal amount within a fixed period, and in case of default, directing that a receiver of the endowment property may be appointed to realize the rents and profits of the properties and after providing for the necessary expenses of the institution and a reasonable provision for the maintenance of the Mohunt or Shebait, the balance should be applied towards the payment of the debt until it is satisfied.

The exclusion of jurisdiction is not intended to defeat the rights lawfully created in favour of a citizen by the Board or its authorities acting within the framework of law and the scope of authority vesting in them. For instance if a property had been competently decided to be sold to a citizen under a valid contract entered into between the Board and a citizen, and the sale consideration has also been received, can it be urged that in case of refusal to abide by the management so agreed upon validly, the jurisdiction of the Civil Courts will not be attracted and decree of specific performance passed would not be executed by taking refuge under either section 9 or section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Such examples can be multiplied to demonstrate the scope and the limit of the bar contained in these sections.

Another aspect is that even under the general law special protection is provided to the trust properties. Reference is invited to section 92 of the Civil Procedure Code whereunder a suit in respect of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or for a direction for the administration of any such trust cannot be instituted in the Civil Court without obtaining the consent in writing of the Advocate-General.

Thus the special provisions contained in the statute to achieve certain objectives cannot be taken to be intended to defeat the rights of citizens otherwise vesting in them under the law. These rights, so vesting under the decrees validly obtained can be realized and the provisions contained in section 9 or section 14 as such, place no obstacle in the way of such decree-holder to obtain the requisite relief, nor they contain anything in themselves which can be said to be in derogation of the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him).

Al-Qur'an Sura Al-Baqarah, Verse 188; Qamar-uz-Zaman Khan v. The Punjab Province and others PLD 1955 Lah. 612; Niladri v. Makant Chaturbhuj AIR 1926 PC 112 and Bibhudhapriya v. Laksmindra AIR 1927 F C 131 ref.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 8---Constitution of Pakistan (1973), Art.203-F---Declaration of property as evacuee trust property---Appeal---Necessity of providing right of appeal against order of the Chairman passed under S.8, Evacuee Trust Properties (Management and Disposal) Act, 1975, so as to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an inadequate remedy of revision would be repugnant to the Injunctions of Islam---Federal Government was accordingly directed by Supreme Court to suitably amend the relevant law in a specific manner and by the fixed date.

The objection that right of appeal having not been provided, the immunity sought to be granted to the order of Chairman passed under section 8 of Evacuee Trust Properties (Management and Disposal) Act, 1975, violates the principles of administration of justice, has merit. The principles of administration of justice deducible from the Holy Qur'an, Sunnah of the Holy Prophet (p.b.u.h.) and the conduct of Righteous Caliphs, warrant that at least one right of appeal, effective, not illusory, be provided to party to have the order/judgment passed against him scrutinized to obtain the satisfaction that his cause has received due attention and that justice should seem to have been done.

The provision of right of appeal against order of the Chairman passed under section 8 of the Act should have been provided to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an inadequate remedy of revision would be repugnant to the Injunctions of Islam. The Federal Government is accordingly directed to suitably amend the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) by inserting a provision providing right of appeal against the order passed by the Chairman under section 8 of Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the recourse adopted in the Displaced Persons (Compensation of Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958. If the declaration as to the nature of the property made by the Chief Settlement Commissioner and later by the Chairman could be made scrutable through an appeal to the High Court, no possible objection can be raised to the providing, of the same remedy now under Act XIII of 1975. It is also to be noted that against the orders passed on other matters by the officers appointed by the Board, appeal has been provided to the higher officers of the hierarchy including the Chairman and against orders so passed the revision lies to the Federal government. The said course of action can continue as before, as final order so passed is further assailable before the High Court by invoking the Constitutional jurisdiction vesting in it under Article 199 of the Constitution and a further petition for leave to appeal before the Supreme Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the Legislature, are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the Federal Government by the 30th July, 1999.

Per Wajihuddin Ahmed, J.----

There should be right of at least one appeal against an original order of the Chairman, Evacuee Trust Board, a circumstance, which immediately strikes the mind, in the subsistence of vast powers in the Chairman and. the Board and the necessity of a stricter control, both judicial and administrative. The huge resources, which are obviously available with the Evacuee Trust Board and which can only be utilized towards the cherished objectives of the Trust have not readily been visible. Those concerned, therefore, are expected to attend to this vital area of the operation of Act XIII of 1975 and ensure that the manifold trusts of those, who are no more in the country, are duly honoured in letter and spirit by the Board and the Chairman.

Ch. Fazal-i-Hussain, Advocate Supreme Court (for Evacuee Trust Property Board).

Maulvi Anwarul Haque, Deputy Attorney-General, Ch. Akhtar Ali, Advocate-on-Record, Ejaz Muhammad Khan, Additional Advocate-General, N.-W.F.P., Malik Sikandar Khan, Advocate-General, Balochistan and Sh. Altaf Elahi, Additional Advocate-General, Punjab for Appellant.

Nemo for Respondents.

Dates of hearing: 17th and 19th February, 1999.

2000SCMR30

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

GHULAM MUHAMMAD ---Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary, Industries, Lahore and others---Respondents

Civil Petition No.967-L of 1998, decided on 15th September, 1999.

(On appeal from the judgment, dated 23-4-1998 of the Lahore High Court, Lahore in Writ Petition No.7705 of 1998).

(a) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Jurisdiction of Labour Court---Scope---Labour Court in the exercise of its powers under S. 25-A, Industrial Relations Ordinance, 1969 has full and complete powers to go into the question of fact and to arrive at its own conclusion regardless of there being any defect in the procedure in the domestic proceedings.

The Labour Court in the exercise of its powers under section 25-A of the Ordinance, has full and complete powers to go into the questions of fact and to arrive at its own conclusion regardless of there being any defect in the procedure in the domestic proceedings. The Labour Court can go behind a dismissal order and see for itself whether on facts, and in circumstances of the case, dismissal order was or was not justified both on merits as well on facts. The intention of the Legislature appears to provide a double check, one in the form of a domestic inquiry to be held by an employer and the other in the form of a judicial determination by the Junior Labour Court itself.

Crescent Jute Products. Ltd., Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207 quoted.

(b) Industrial Relations Ordinance (XXIII of 1969)-----

----Ss. 25-A & 37(3)---Appeal before Labour Appellate Tribunal from a decision of the Labour Court made under S. 25-A, Industrial Relations Ordinance, 1969---Scope and extent.

Provisions of subsection (3) of section 37 of the Industrial Relations Ordinance, 1969 expressly enables an aggrieved party to file an appeal before the Labour Appellate Tribunal from a decision of the Labour Court made under section 25-A of the Ordinance. In the exercise of appellate powers, the Labour Appellate Tribunal may confirm, set aside, vary or modify the decision given under section 25-A and exercise all the powers conferred by the Ordinance on the Labour Court, save as otherwise provided. Even otherwise the appeal being in continuation of the original proceedings, the appellate forum can pass any order which ought to have been passed by the original forum. In the present case, the Labour Appellate Tribunal has given cogent reasons in setting aside the decision of the Labour Court. The grievance petition was hopelessly time-barred and satisfactory explanation was not forthcoming on record regarding the in­ordinate delay having regard to the facts and circumstances of the case. The conclusion reached by the Labour Appellate Tribunal is discernible from the available, material on record. It, therefore, cannot be said that jurisdiction exercised by it in setting aside the decision of the Labour Court suffered from any legal flaw or infirmity. After thorough scrutiny of the material placed on record and perusing the detailed judgment, the Labour Court was not justified in accepting a hopelessly time-barred grievance petition which was filed after a period of over ten years, No exception can be taken to the order passed by the Labour Appellate Tribunal allowing the appeal of the employer and dismissing the grievance petition.

Dr. A. Basit, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on- Record (absent) for Petitioner.

Mushtaq Ahmed, Superintendent and Munir Ahmed Bhatti, Office Superintendent for Respondents.

Date of hearing: 8th September, 1999.

2000SCMR 34

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Ijaz Nisar and Sh. Riaz Ahmed, JJ

KHAIR DIN---Petitioner

versus

O.S.D., CENTRAL RECORD, LAHORE---Respondent

Suo Motu Review Petition No.93 of 1996, decided on 5th July, 1999.

(On review from the judgment of this Court, dated 28-1-1996 passed in C.P. No. 1020-L of 1994).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Petition for leave to appeal having been dismissed by Supreme Court holding that matter stood concluded by a finding of fact petitioner had filed petition praying for suo motu review of the judgment ---Respondent Authority contested said review petition contending that Authorities below as well as High Court had concurrently found that disputed entry in relevant record was not genuine---Contention of respondent-Authority appearing to be correct and based on record, case was not fit for exercise of suo motu power of review by Supreme Court.

Petitioner in person.

Khaleeq Ahmed Ansari, Advocate Supreme Court for Respondent.

2000SCMR36

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

MUHAMMAD AKBAR KHAN---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, N.-W.F.P., PESHAWAR

and 4 others---Respondents

Civil Petition for Leave to Appeal No.245-P of 1998, decided on 11th August, 1999.

(On appeal from the judgment, dated 3-10-1998, of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeal No.2155 of 1997).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Appeal to Service Tribunal---Scope---Departmental appeal barred by limitation---Effect---If the Departmental Authority had not dismissed the departmental appeal on the ground of bar of limitation, Service Tribunal of its own could hold the appeal before the Tribunal as incompetent in view of the said bar of limitation.

(b) Civil service---

----Promotion---Grant or refusal of Selection Grade---Inquiry pending against civil servants---Effect---If an inquiry was pending against the civil servant under relevant Efficiency and Discipline Rules, or the adverse findings had been recorded against him, then the delinquent civil servant was not to be considered for grant of selection grade or promotion till the inquiry was finalized---Where the inquiry could not attain finality and in the meantime civil servant voluntarily opted for leave preparatory to retirement, Service Tribunal was justified to have not granted the relief of selection grade to civil servant in circumstances.

M. Asif Khan, Advocate Supreme Court instructed by Hussain Khan, Advocate-on-Record (absent) for Petitioner.

Imtiaz Ali, Additional Advocate-Gernal, N.-W.F.P. for Respondents.

Date of hearing: 11th August, 1999.

2000SCMR39

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg.C.J. and Sh. Ijaz Nisar, J

LAHORE CANTT., PARK VIEW COOPERATIVE HOUSING

SOCIETY ----Petitioner

MUHAMMAD ISHAQ and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1112-L and 1169-L to 1173-L of 1999, decided on 15th September, 1999.

(On appeal from the judgment, dated 28-6-1999 passed by Lahore High Court, Lahore in I.-C. A. No. 257 of 1993 (consolidated judgment).

(a) Constitution of Pakistan (1973)--

----Art. 185(2)(d)---Appeal to Supreme Court---Application of Art. 185(2)(d) of the Constitution---Scope---Order having been passed by the Intra-Court Appellate Bench of the High Court and the order impugned before said Bench being not an order passed by the Court immediately below the said Court, Art. 185(2)(d) of the Constitution would not be applicable to the matter.

Article 185(2)(d) of the Constitution applies only to those matters, which were in the form of suits/petitions and arising out of judgments, decrees or final orders of the Court immediately below the Court of appeal and the amount or value of the subject-matter of the dispute in the Court of first instance as well as in dispute in appeal, was not less than Rs.50,000. Order having been passed by the Intra-Court Appellate Bench of the High Court and the order impugned Before said bench being not an order passed by the Court immediately below it. Article 185(2)(d) would not be applicable. The contention raised in this behalf by the counsel was, therefore, repelled.

(b) Land Acquisition Act (I of 1894)---

----Ss. 54 & 4---Law Reforms Ordinance (XII of 1972), S. 3-Constitution o: Pakistan (1973), Art. 185(3)---Contentions were that land measuring far beyond the declared requirement of the Society had been acquired, inasmuch as the Society sought acquisition of 1385 Kanals only as their requirement and the original notification under S. 4, Land Acquisition Act, 1894, was for the same area of land but when the cost was being estimated, the area was increased to 4476 Kanals and then after some modifications Collector sought the appointment of an Enquiry Officer that writ petitions were filed against the proceedings before the award and under law no appeal lay against the award; that disputed issue was not taken up before the Intra-Court Appellate Bench and that S. 54, Land Acquisition Act, 1894 applied to appeal against award-.Leave to appeal was granted by Supreme Court to consider the contentions and to examine as to whether in circumstances of the case Intra-Court Appellate Bench was justified to pass the impugned order.

Raja Muhammad Anwar, Senior Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Syed Mansoor Ali Shah, Advocate Supreme Court and Ch. M. Aslam, Advocate-on-Record for Respondents Nos. l and 2.

Saeedur Rehman Farrukh, Advocate Supreme Court, and Sh. Salahuddin, Advocate-on-Record for Respondents (in C.Ps. . Nos. 1169/L and 1172/L of 1999).

Ch. Aitzaz Ahasan, Advocate Supreme Court acid M.A, Qureshi, Advocate-on-Record for Respondents (in C.P. No. 1173/L of 1999).

Date of hearing: 14th September, 1999.

2000 S C M R 45

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ

MUKHTAR BAIG and others---Appellants

versus

SARDAR BAIG and others-----Respondents

Civil Appeal No. 859 of 1995, decided on 9th February, 1999.

(On appeal from the judgment dated 17-1-1994 of the Lahore High Court, Lahore passed in R.S.A. No. 253 of 1970).

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

----S. 42---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10---Suit for declaration---Original transferee of evacuee house in dispute surrendered his rights in favour of defendant through association deed and defendant paid/adjusted transfer price of the house from Compensation Book issued to him, in respect of property left in India by his deceased father--­Plaintiffs/other brothers and one daughter of uncle of defendant having claimed their shares from property left by their predecessor in India, an agreement was arrived at between plaintiff and defendant in which defendant acknowledged shares of plaintiffs according to Shariat Law and after execution of said agreement between parties Permanent Transfer Deed was issued in favour of defendant---Plaintiffs filed declaratory suit against defendant in which they claimed to be joint owners of house in dispute, but said suit was dismissed by Courts below holding that plaintiffs should have filed suit for specific performance of said agreement instead of suit for declaration ---Validity--­Agreement having been arrived at between parties prior to issuance of Permanent Transfer Deed in favour of defendant, it was not merely an agreement to do something in favour of plaintiffs in future, but defendant had acknowledged shares of plaintiffs in house in dispute according to Shariat Law---Suit for declaration of rights of plaintiffs based on agreement was very much maintainable in facts and circumstances of the case.

(b) Transfer of Property Act (IV of 1882)---

----S. 52---Specific Relief Act (I of 1877), S. 42---Rule of 'lis pendens'--­Applicability---Suit for declaration---During pendency of suit for declaration in respect of house in dispute, defendant sold the house---Defendant/vendor having died during pendency of proceedings between parties, vendee had claimed that he being transferee of right of deceased, was entitled to contest suit independently in his own right in the same manner and to the same extent as defendant/vendor ---Validity---Vendee having purchased house in dispute during pendency of suit, rule of "lis pendens" was applicable to said vendee and he was not entitled to defend suit independently from defendant through whom he claimed ownership rights during pendency of suit---Findings recorded against defendant/vendor and judgment delivered against him would be binding on vendee in the same manner and to the same extent as .it was binding on defendant/vendor.

Mushtaq Raj, Advocate Supreme Court for Appellants.

Munir Peracha, Advocate Supreme Court and Raja A. Ghafoor, Advocate-on-Record for Respondent No.2.

Remaining Respondents: Ex parte

Date of hearing: 9th February, 1999.

2000 SCM R 48

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.,J. and Sh. Ijaz Nisar, J

MISREPORTING OF SUPREME COURT ORDER.: IN RE

decided on 14th September, 1999.

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

----S. 497---Constitution of Pakistan (1973), Art. 185(3) grant or refusal of bail---Cancellation of bail---Leave to appeal was granted by Supreme Court to examine question of great public importance as to whether High Court had not ignored the principles laid down by the Supreme Court for cancellation of bail granted by the Trial Court particularly on the ground of delay in the conclusion of the trial within the statutory period prescribed under Sr 497(1), third proviso, Cr. P.C., whether the principles for grant or refusal of bail were different from the principles of cancellation of bail; whether bail allowed by a Court of competent jurisdiction on proper appreciation of the law could be cancelled on the ground that a different view could be taken regarding the conduct of the accused by going into deeper appreciation of evidence when the trial was in progress and more than 200 prosecution witnesses yet remained to be examined; whether, where bail was allowed to an accused after the expiry of the statutory period, the inordinate delay further likely to occur in the conclusion of the trial should or should not have been taken into consideration while deciding the question of cancellation of bail; whether the police operation- for the apprehension and arrest of desperate and dangerous criminals as well as enemy agents could be termed as an act of "terrorism"; whether High Court after having found that on going through the material on record prima facie one could not say that the accused were hardened, desperate or dangerous criminals or previously convicted offenders, was justified in holding that the person present at the scene of occurrence could, ex facie, be said on tentative assessment of the material, had committed act of terrorism.

(b) Supreme Court Rules, 1980---

----O. XXVII, Rr.l & 10---Misreporting of Supreme Court Order in a newspaper ---Suo motu notice by Supreme Court---Daily newspaper published a new item under the caption "Murtaza's murder was not terrorism, SC"---News published in the newspaper was wholly incorrect and misleading, inasmuch as no occasion arose in the proceedings before Supreme Court in interim bail proceedings to hold whether or not the murder in the case was an act of terrorism but only notice was issued to the respondent and the Advocate-General on question raised by the petitioner and in the meanwhile, without expressing any opinion as to the merits of the case, the petitioner was granted bail as was ex facie apparent from Supreme Court's order---Senior Staff Reporter of the newspaper appeared before Supreme Court in response to suo motu notice issued to him by Court and conceded that the caption of the news item was misleading inasmuch as no such order as reported by him was passed by Supreme Court--­Reporter, however, expressed his sincere regrets and gave an assurance to the Court that he would be careful in future while reporting Supreme Court's proceedings and submitted that he gave the news item under some misunderstanding, as he merely intended to refer to the contention of the accused's counsel and not the order of the Court and undertook that in order to clarify ambiguity caused by the news item in question, the order in question would be published in all editions of the daily.

Date of hearing: 14th September, 1999.

2000SCMR53

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munawar Ahmed Mirza

and Abdur Rehman Khan, JJ

MUMTAZ KHAN---Petitioner

versus

NAWAB KHAN and 5 others-----Respondents

Civil Appeal No. 1.009 of 1999 in Civil Petition No, 144-P of 1998, decided on 8th July, 1999.

(On appeal from the judgment/order, dated 19-1-1998 of the Peshawar. High Court, Peshawar, passed in C.R. No.36 of 1997).

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1'908), O.VII; R. 11---Demand of pre­emption ---Rejection of plaint---Plaint in suit for possession through pre-emption was rejected under O.VII, R. 11, C.P.C. on the ground that in the notice of Talab-i-Ishhad the names of the attesting witnesses had been omitted as required under S. 13(3), N.-W.F.P. Pre-emption Act, 1987---Validity---Suit for pre­emption was not barred under O.VII, R. 11(d), C. P.C-. ---Principles --- Supreme Court converted the petition for leave to appeal into appeal, allowed the same, set aside the impugned orders and remanded the case to Trial Court to proceed with the case strictly in accordance with law and decide the issues including the one "as to whether the plaintiff had been able to establish that he had made the requisite Talabs within the contemplation of S. 13, N.-W.F.P. Pre-emption Act, 1987.

In the present case the plaint, in a suit for possession through pre­emption was rejected under Order VII, Rule 11(d), C.P.C. by trial Court on the ground that in the notices of Talab-i-Ishhad the names of the attesting witnesses had been omitted as required under subsection (3) of section 13 of the N.-W.F.P Pre-emption Act, 1987. Both First Appellate Court and the High Court affirmed the judgment of trial Court.

The "bar of a suit under any law for the time being in force" could not be legally taken at par with the "extinguishments of the right of pre-emption under section 13 of the -Act". Clause (d) of Order VII, Rule 11, C.P.C was applicable where the suit appeared to be prima facie barred by any law, from a perusal of the statement in the plaint and no inquiry was needed. For instance, where a suit was time-barred, or was bad for multifariousness or where a requirement as 'to prior notice had not been fulfilled or where consent of Advocate-General had not been obtained under section 92, C.P.C. or the suit was filed by an unregistered firm or issue raised concerning the execution, discharge or satisfaction of a decree and a cognizance was barred under section 47 read with Order XXI, Rules 22 and 103, C.P.C. So far as the extinguishments of a right of pre-emption under section 13 of the Act was concerned, it was altogether of a different connotation having no such implication as to bar the suit for pre-emption. The right of pre-emption could obviously be extinguished if the "Talabs" had not been made at all or if made they were not made in accordance with the requirements of section 13. This presupposes trial of issue of a fact. It .did not, therefore, denote any such bar of the suit within the contemplation of clause (d) of Order VII, Rule 11, C.P.C.

The suit was not at all barred under clause (d) of Order VII, Rule 11, C.P.C.

Supreme Court converted the petition for leave to appeal into appeal, allowed the same, set aside the impugned orders and remanded the case to the trial Court to proceed with the case strictly in accordance with law and decide the issues including the one "as to whether the petitioner had been able to establish that he had made the requisite Talabs with the contemplation of section 13 of the Act.

Jan Muhammad Khan, Advocate-on-Record for Petitioner.

Abdul Sattar Khan, Advocate Supreme Court instructed by K.G. Saber, Advocate-on-Record for Respondents.

Date of hearing: 8th July, 1999.

2000 S C M R 57

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A, Sheikh, JJ

MUHAMMAD ISMAIL and others---Petitioners

versus

MUHAMMAD ASLAM and 2 others---Respondents

Civil Petition for Leave to Appeal No. 1204-L of 1997, decided on 2nd April, 1999.

(On appeal from the judgment/order dated 3-7-1997, of the Lahore High Court, Lahore passed in R.S.A. No.380 of 1966).

Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 17 & 19---Constitution of Pakistan (1973), Art. 185(3)--­Dismissal of appeal for non-prosecution---Re-admission---Application for re­admission of appeal was dismissed for non-prosecution was rejected by High Court holding that appellant/petitioner had committed gross negligence in prosecuting the appeal---Order of High Court not suffering from any illegality, could not be interfered with---Petition, for leave to appeal against order of High Court was dismissed, in circumstances.

Furman Ali, v. Muhammad Yousaf Ali and another PLD 1992 SC 330 ref.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2000SCMR59

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

Syed ANJUM ZAFAR and 8 others---Petitioners

versus

Syed ABBAS ALI SHAH and 6 others---Respondents

Civil Petition for Leave to Appeal No. 119-P of 1999, decided-on 12th August, 1999.

(On appeal. from the judgment dated 26-3-1999 of the Peshawar High Court, Peshawar, passed in C.R. No. 318 of 1998).

(a) North-West Frontier Province Waqf Properties Ordinance (I of 1979)---

----S. 11---Civil Procedure Code (V of 1908), O.I, R.10 --- Application for impleadment as respondent was filed during the pendency of proceedings of the petition filed under S.11, N.-W.F.P. Waqf Properties Ordinance, 1979--­District Court allowed the application for impleadment applying the provisions of O.I, R. 10, C.P.C.---Validity---Proceedings under S.11, N.-W.F.P. Waqf Properties Ordinance, 1979 being essentially a civil proceeding to be disposed of by District Court in its original jurisdiction conferred thereon under the said Ordinance and no special procedure having been prescribed for disposal of the petition under said S.11, general provisions of C.P.C. which were founded on the principles of natural justice and had not been specifically, excluded in the Ordinance from application would be applicable---Principles and words of caution in application of the provisions of C.P.C. to the proceedings under special law to be tried by Court, Tribunal or forum like that :falling under S.11 of the Ordinance recorded by Supreme Court.

During the pendency of the proceedings of the petition filed under section 11 of the N.-W.F.P. Waqf Properties Ordinance an application was moved for impleadment as respondents in the petition.

The first and foremost question in the present case was as to whether the relevant provisions of the C.P.C. were applicable to the petitions under section 11of the N.-W.F.P. Waqf Properties Ordinance, 1979 particularly when no "procedure" had been prescribed therein for processing and disposal of such petitions. A proceeding under section 11 of the Ordinance was essentially a civil proceeding to be disposed of by a District Court in its original jurisdiction conferred thereon under the Ordinance.

Contention that the provisions of the C.P.C. and particularly those of Order I thereof were not applicable in view of the limited scope of the petition within the contemplation of section 11 of the Ordinance was misconceived. No special procedure had been prescribed for disposal of the petitions under section 11. If it be so, then general provisions of the C.P.C. which were founded on the principles of natural justice having not been specifically excluded in the Ordinance from application would be applicable. Conceding for the sake of argument that the provisions of the C.P.C. were not applicable even then every Court or Tribunal was vested with inherent jurisdiction to add necessary or proper parties to the proceedings or strike out the unnecessary parties impleaded before it irrespective of the provisions of Order I of the C.P.C. The exercise of power by the District Court under Order I, Rule 10, C.P.C. whether they were applicable or not were, therefore, of no legal consequence.

Supreme Court, however, expressed a word of caution in application of the provisions of the C.P.C. to the proceedings under special laws to be tried by Court, Tribunal or forum leke that falling under section 11 of the Ordinance. One could not possibly visualize the application of each and every provision of the C.P.C. Only the relevant provisions of the Code in the discretion of the Tribunal, which was obviously to exercise it justly, properly and equitably, could be invoked to advance the cause of justice keeping in view the scope of the law providing for the establishment of the Tribunal. In short, Civil Procedure Code was not meant to be a clog in way of proper dispensation of justice, inasmuch as provisions prescribed therein were meant for facility and smooth running of wheels of justice to enable Court to arrive at proper conclusion in accordance with facts of case and law.

(b) North-West Frontier Province Waqf Properties Ordinance (I of 1979)---

----S. 11---Constitution of Pakistan (1973), Art. 203---Civil Procedure Code (V of 1908), S. 115---Petition under S. 11, North-West Frontier Province Waqf Properties Ordinance, 1979---Application for impleadment as respondents was filed during the pendency of proceedings under S.11 of the Ordinance---District Court allowed the impleadment of respondents---Revision against said order of District Court before High Court---Maintainability---Right of civil revision, in the matter not covered by C.P.C. could not be exercised under what had been described as "supervisory jurisdiction of the High Court" ---Principles.

During the pendency of the proceedings of the petition filed under section 11 of N.-W. F. P. Waqf Properties Ordinance, 1979 an application was moved for impeladment as respondents in the petition.

Said application was allowed by the District Court and revision was filed before the High Court against that order. Held, right to claim review, revision and appeal against any decision of a Court of law is substantive right and not a mere matter of procedure. Actually appeal, review and revision though they differ in scope are substantive rights. As such neither of them is available unless it has been conferred by law. The right of civil revision, therefore, in the matter not conferred by Code of Civil Procedure could not be exercised under what has been described as "supervisory jurisdiction of the High Court". In the present case, the jurisdiction exercised by the High Court was not available and the revision petition was liable to dismissal on this score as well.

Syed Asif Shah, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners.

Salahuddin Khan, Advocate Supreme Court instructed by M. Zahoor Qureshi Azad, Advocate-on-Record for Respondent No. 1.

Date of hearing: 12th August, 1999.

2000SCMR65

[Supreme Court of Pakistan]

Present: Irshad Hasan, Actg. CJ. and Sh. Ijaz Nisar, J

Messrs ASLAM TRADERS---Petitioner

versus

ASGHAR ALI TAHIR and others---Respondents

Civil Petitions Nos. 952-L and 1188-L to 1211-L of 1999, decided on 7th September, 1999.

(On appeal from the judgment/order dated 8-6-1999 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 15482/98 and 16399 to 16422 of 1999).

Constitution of Pakistan (1973)---

----Art. 199---Foreign Exchange Regulation Act (VII of 1947), Ss. 12 (1) & 23-C(4)---Constitutional jurisdiction of High Court---Scope---High Court, in a Constitutional petition having held that the exercise of jurisdiction under Art. 199 of the Constitution was dependent upon non-availability of adequate remedy, there was no justification for recording findings on merits which had resulted into grave prejudice to the petitioners---Supreme Court, in circumstances; converted the petitions for leave to appeal into appeals and set aside the judgments of High Court to the extent of findings on merits of the case---Petitioners were allowed to avail remedy of appeal before the proper forum within 20 days from the date of the order of the Supreme Court, which, if filed, the said forum shall give benefit as regards delay of the period during which the Constitutional petitions remained pending before the High Court and shall decide appeals on merits as well as the prayer of interim relief---No coercive measures were to be taken against the petitioners for a period of 20 days from the date of order of the Supreme Court to enable them to approach the appropriate forum.

Maqbul Elahi Malik, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioner.

Kh. Saeed-ud-Zafar, Deputy Attorney-General for Respondents.

Date of hearing: 7th September, 1999.

2000SCMR67

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

DIRECTOR-GENERAL HEALTH SERVICES, N.-W.F.P.

PESHAWAR and others---Petitioners

versus

Dr. NIZAKAT IQBAL KARIM and another---Respondents

Civil Petitions Nos.28-P and 29-P of 1999, decided on 9th August, 1999.

(On appeal from the judgment dated 30-9-1998 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeals Nos.538 and 539 of 1998).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Transfer of civil servant---Interference by Service Tribunal---Scope---Indiscriminate and repeated transfer orders and cancellation of such transfer orders of civil servants had been made by the Authorities irrespective of the consideration of public interest--­Orders of transfer passed by Authorities indiscriminately without rhyme or reason were found to be mala fide, arbitrary, against the canons of justice, equity and fair play by Service Tribunal which were rightly cancelled---Leave to appeal against said orders of the Service Tribunal was declined by Supreme Court.

Transfer of a civil servant is an incidence of service. Nonetheless, if either it is the outcome of the mala fides, or is otherwise arbitrary, violative of the principle of policy governing the transfer of civil servants or is against the canons of justice, equity, fair play then it can be interfered with by the Tribunal inasmuch as the transfer is one of the terms and conditions of civil service. No doubt allegations of mala fides are easy to allege but difficult to prove. At the same, however, one should not lose sight of the fact that element of male fides can be inferred from the conduct of the functionary of the Government passing the order. In the present case, therefore, looking to the indiscriminate numerous transfer orders, the inference was rightly drawn by the Tribunal that the transfers were tainted with mala fides although the element of bad faith was not floating on the surface of the record. Nonetheless it could not be ignored by going through the record and taking note of indiscriminate transfer order after every 2/3 months.

It is disquieting to note that within a period of a year or two, the transfer orders and cancellation of such transfer orders had been made by the authorities irrespective .of the considerations of public interest. The orders of transfer passed indiscriminately without any rhyme or reason obviously were found to be mala fide, arbitrary, against the canons of justice, equity and fair play. The Service Tribunal had, therefore, rightly cancelled the transfer order.

Syed Afzal Ahmad Hydari v. Secretary, Defence Production Division, Ministry of Defence, Rawalpindi and 3 others 1991 SCMR 477; Nazir Hussain, Ex-Director Excise and Taxation, Administrator, Auqaf, N.-W.F.P., Peshawar v. N.-W.F.P. through the Chief Secretary, Services and General Administration Department, Government of N.-W.F.P., Peshawar and 2 others 1992 SCMR 1843; Managing Director, WASA, Lahore v. Muhammad Hanif Ijaz 1997 PLC 108 and Mst. Niaz Perveen v. Mst. Rukhsana Shaheen and 3 others 1995 SCMR 1844 ref.

Ejaz Muhammad Khan, Additional Advocate-General, N.-W.F.P. for Petitioners.

Nemo for Respondents.

Date of hearing: 9th August, 1999.'

2000SCMR71

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J, Munawar Ahmad Mirza and Ch. Muhammad Arif, JJ

SHAKEEL AKHTAR and others---Petitioners

versus

M.S. MENTAL HOSPITAL and others---Respondents

Civil Petitions Nos. 1803-L'to 1831-L, 1846-L and 1847-L, 1902-L to 1904-L, 1968-L to 1977-L, 1981-L, 1992-L, 2055-L and 2056-L of 1998, decided on 29th December, 1998.

(On appeal from the judgment, dated 5-10-1998 of the Punjab Service Tribunal, Lahore in Appeal No.898 of 1987 etc.).

West Pakistan Essential Services (Maintenance) Act (XXXIV of 1958)---

---S. 7---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.9 (3)---Strike by hospital employees---Dismissal from service of such employees--­Validity---Service of hospital employees being subject to the provisions of West Pakistan Essential Services (Maintenance) Act, 1958, they had no legal justification to go on strike---Hospital employees having remained absent from duties in spite of repeated notices and warnings, without any justifiable reason, action'` of Hospital Authorities, to dismiss them from service was unexceptionable.

Hospital employees, in spite of repeated public notices and warnings, did not report for duty, with the result that a large number of patients in the Province encountered hardships and some of them even expired. Such an irresponsible conduct on the part of the employees could not be countenanced. The employees were subject to the provisions of the West Pakistan Essential Service (Maintenance) Act, 1958, which prohibits the employees, subject to the provisions of the Act, from absenting themselves from work. As a matter of fact, section 7 of the Act imposes criminal liability by providing that a person guilty of breach of the above provision of the Act is punishable with imprisonment for a term which may extend to one year and with fine. In presence of the above Act, the employees had no legal justification to go on strike. Since the employees remained absent from their duties in spite of repeated notices and warnings without any justifiable reason, the action of the hospital authorities to dismiss them from service was unexceptionable.

Muhammad Arif Siddiqui v. Government of Pakistan 1988 SCMR 673; Abdur Rehman Babar v. N.-W.F.P. through the Chief Secretary, Government of N.-W.F.P. 1989 SCMR 928 and Rehmat Ali Shah v. Secretary, Defence Production Division, Rawalpindi 1990 SCMR 1500 distinguished.

Hafra Tariq Nasim, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in all petitions except in C.P. No. 1981-L of 1998)..

Petitioner in person (in C. P. No. 1981-L of 1998).

Nemo for Respondents (in all except C.P. No. 1847-L of 1998).

M. Sharif Butt, Advocate Supreme Court for Respondent (in C.P. No 1847-L of 1998). .

Date of hearing: 29th December, 1998.

2000SCMR75

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Mamoon Kazi, JJ

GOVERNMENT OF SINDH through the Advocate-General

Sindh---Petitioner

versus

MUHAMMAD HUSSAIN and 6 others---Respondents

Civil Petitions Nos.256-K to 259-K of 1999 and 261-K, 262-K and 267-K of 1999, decided on 8th July, 1999.

(On appeal from the judgment of the Sindh Service Tribunal, dated 10-3-1999 passed in Appeals Nos.31, 35, 49, 50, 51, 60 & 61 of 1998).

(a) Police Rules, 1934---

----R.128---Civil Servants Act (LXXI of 1973), S. 11---Discharge of probationer police officers from service before completion of their initial probation period--­Reports sent by Superintendent of Police to the Deputy Inspector-General indicated that serious allegations of inefficiency were attributed to the probationers---Effect---If such allegations entailed removal of services of the probationer, they were entitled to a show-cause notice and an opportunity to defend themselves against the proposed action---Probationers being civil servants governed by Civil Servants Act, 1973, and right of appeal being provided to them under the relevant rules, the provisions of rule 12.8, Police Rules, 1934 could not prevail over the same.

Rule 12.8, Police Rules, 1934 no doubt indicates that officers referred to in the said rule are to be considered as probationers during the first three years of their appointment and they can be discharged from service during such period for any of the reasons mentioned in the said rule and no appeal would lie against an order of discharge, but evidently the present case was not a case of simpliciter discharge. Reports sent by Superintendent of Police to the Deputy Inspector-General indicate that serious allegations of inefficiency were attributed to the probationers. If such allegations entailed their removal from service, they were entitled to a show-cause notice and an opportunity to defend themselves against the proposed action. Furthermore, no doubt rule 12.8, Police Rules, 1934 lays down that the officer against whom action is taken under the said rule shall not have any right of appeal, but the probationers being civil servants, they are governed by provisions of the Civil Servants Act, 1973. The right of departmental appeal being provided to the civil servants under the relevant rules, the provisions of rule 12.8, Police Rules, 1934 cannot prevail over the same.

(b) Civil service---

---- Termination of service---Appeal---Question of limitation---If similar action with regard to question of limitation taken by the competent Authority was found to be untenable in the case of other civil servants, relief could not be declined to respondents/civil servants.

Ainuddin, Additional Advocate-General and Miss Wajahat Niaz, Advocate-on-Record for Petitioner.

A.A. Khan, Advocate-on-Record for Respondents.

Date of hearing: 8th July, 1999.

2000SCMR78

[Supreme Court Pakistan]

Present: Munawar Ahmad Mirza and Munir A. Sheikh, JJ

MUHAMMAD BASHIR---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.358-L of 1999, decided on 11th August, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/324---Constitution of Pakistan (1973), Art.185(3)---Bail---Age---Case of accused at bail stage could not be legitimately distinguished from that of main accused---Allegations of common intention, prima facie, were reflected from the averments of F.I.R. and attending circumstances---Accused had allegedly made firing with a carbine at the time of occurrence whereby a prosecution witness was injured---Old age simpliciter did not entitle the accused to grant of bail---Leave to appeal was refused to accused in circumstances and bail was declined to him.

Shahid Hussain Kadri, Senior Advocate Supreme Court for Petitioner.

M. Sharif Butt, Advocate Supreme Court for the State.

Date of hearing: 11th August, 1999.

2000SCMR79

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Munir A. Sheikh, JJ

MUHAMMAD YOUSIF --- Petitioner

versus

THE STATE---Respondent

Criminal Petition No.22-K of 1999, decided on 21st July, 1999.

(On appeal from .the order of the High Court of Sindh, passed in Cr. Bail Application No.730/98).

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), S.302/324--­Constitution of Pakistan (1973), Art. 185(3)---Bail on ground of statutory delay---Act of accused, no doubt, was condemnable and the circumstances in which bail was sought by him might have brought his case within the exception to third proviso to S.497(1), Cr.P.C. but the reason stated by High Court for declining bail to accused could not take his case out of the purview of the said proviso---Petition for leave to appeal was accordingly converted into appeal and bail was allowed to accused.

Abdul Fatah Malik, Advocate Supreme Court and R.A. Qureshi, Advocate-on-Record for Petitioner.

Muhammad Sarwar Khan, Additional Advocate-General for the

Date of hearing: 21st July, 1999.

ORDER

MAMOON KAZI, J. ---The petitioner, who was a police constable, was arrested on 4-7-1995 .in connection with F.I:R. which had been lodged at Police Station "A" Section Kandhkot. It was alleged that he had used his service-rifle to cause death of Azhar Ali and Khuda Bux and injuries to Ghulam Farid. The petitioner filed his bail application before the High Court invoking the third proviso to section 497, Cr.P.C. However, the learned Judge took the serious view of the matter as the service-rifle given to the petitioner was meant for protection of citizens rather than commission of a crime. Consequently, the bail application of the petitioner was dismissed as the High Court held that the case of the petitioner fell within the exceptions.

1. Although, we agree with the observations made by the learned Judge in the High Court that the act of the petitioner was condemnable, but we are unable to agree with the finding that the case of the petitioner fell No doubt, the circumstances of the case in which bail is sought by can be considered to arrive at a conclusion that his case falls within the exceptions to the third proviso to section 497, Cr.P.C., but in our view, the learned Judge in the High Court failed to consider that the reasons stated by him for declining bail to the petitioner cannot take the case out of the purview of the third proviso.

2. In the result, the petition is coverted into an appeal and the petitioner is admitted to bail in the sum of Rs.3,00,000 (three lacs) with one surety to the satisfaction of the learned Trial Court. The appeal is disposed of accordingly.

N.H.Q./M-375/S Bail allowed.

2000SCMR81

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmad

and Ch. Muhammad Arif, JJ

Mst. UMAT-UL-BANO and others---Appellants

versus

GHULAM MUHAMMAD and others---Respondents

Civil Appeals Nos. 371, 372 and 373 of 1992, decided on 18th March, 1999.

(On appeal from the judgment, dated 26-8-1991 of the Lahore High Court, Lahore in Writ Petition No.538-R of 1979).

(a) Constitution of Pakistan (1973)------

----Art. 199---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 2(2)---Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Complicated question of fact including question as to whether forgeries had been committed by fabricating orders of Custodian of Evacuee Property, could not have been decided by High Court in exercise of its Constitutional jurisdiction.

(b) Constitution of Pakistan (1973)---

----Art. 199---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 2(2)---Constitutional jurisdiction exercise of---High Court without recording any evidence on basis of visual examination of the record, concluded that one of the two orders of Custodian of Evacuee Property was genuine and the other was forged one---Such a finding could not have been recorded in exercise of Constitutional jurisdiction by High Court particularly without affording opportunity to affected parties to produce evidence and to cross-examine the witnesses of the other side.

Zainul Abadin, Advocate Supreme Court and Ch. Ikramul Haq Advocate-on-Record (absent) for Appellant (in C.A. 371 of 1992).

Mian Bashir Zaffar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant (in C.A. 372 of 1992).

Sardar Shaukat Ali, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant (in C.A. 373 of 1992).

M. Saeed Akhtar, Advocate Supreme Court and Khan Muhammad Virk, Advocate Supreme Court for Respondents Nos. 1, 2, 3, 5 and 6 (in all Appeals).

Date of hearing: 18th March, 1999.

2000SCMR81

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmad

and Ch. Muhammad Arif, JJ

Mst. UMAT-UL-BANO and others---Appellants

versus

GHULAM MUHAMMAD and others---Respondents

Civil Appeals Nos. 371, 372 and 373 of 1992, decided on 18th March, 1999.

(On appeal from the judgment, dated 26-8-1991 of the Lahore High Court, Lahore in Writ Petition No.538-R of 1979).

(a) Constitution of Pakistan (1973)------

----Art. 199---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 2(2)---Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Complicated question of fact including question as to whether forgeries had been committed by fabricating orders of Custodian of Evacuee Property, could not have been decided by High Court in exercise of its Constitutional jurisdiction.

(b) Constitution of Pakistan (1973)---

----Art. 199---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 2(2)---Constitutional jurisdiction exercise of---High Court without recording any evidence on basis of visual examination of the record, concluded that one of the two orders of Custodian of Evacuee Property was genuine and the other was forged one---Such a finding could not have been recorded in exercise of Constitutional jurisdiction by High Court particularly without affording opportunity to affected parties to produce evidence and to cross-examine the witnesses of the other side.

Zainul Abadin, Advocate Supreme Court and Ch. Ikramul Haq Advocate-on-Record (absent) for Appellant (in C.A. 371 of 1992).

Mian Bashir Zaffar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant (in C.A. 372 of 1992).

Sardar Shaukat Ali, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant (in C.A. 373 of 1992).

M. Saeed Akhtar, Advocate Supreme Court and Khan Muhammad Virk, Advocate Supreme Court for Respondents Nos. 1, 2, 3, 5 and 6 (in all Appeals).

Date of hearing: 18th March, 1999.

2000SCMR88

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J and Mamoon Kazi, J

SHAH JAHAN and others---Appellants

versus

Syed AMJAD ALI, HAWALDAR and others---Respondents

Civil Appeal No. 517-K of 1998, decided on 28th January, 1999.

(On appeal from the judgment of the High Court of Sindh passed in C.P. No.S-94 of 1994 dated 8-4-1997).

(a) West Pakistan Family Courts Act (XXXV of 1964)------

----S. 5---Constitution of Pakistan (1973), Arts. 199 & 185 (3)---Constitutional jurisdiction of High Court---Scope---Award of maintenance for minor children by Family Court---Reduction of amount of maintenance by High Court under its Constitutional jurisdiction---Validity---Leave to appeal was granted by Supreme Court to examine the question as to whether judgment of High Court was delivered in consonance with law.

(b) West Pakistan Family Courts Act (XXXV of 1964)----

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Award of maintenance for minor children by Family Court---Assessment of evidence or to determine the amount of maintenance, was the function of the Family Court which was vested with exclusive jurisdiction to decide such matters---Neither there appeared to be any misreading of evidence nor any material piece of evidence appeared to have been overlooked by the Family Court while determining the amount of maintenance awarded to the minor children---High Court in its Constitutional jurisdiction, reduced the amount of maintenance of each child from Rs.300 to Rs.200---Validity---When High Court exercises Constitutional jurisdiction, its powers were not analogous to those of an Appellate Court---High Court, although, could strike down an order passed by a Subordinate Court or a Tribunal as without lawful authority and of no legal effect but it could not substitute its own judgment for that of the Subordinate Court or Tribunal---High Court reduced the maintenance amount for each child mainly for the reason that father of children had also to maintain four children from his second marriage, whereas Family Court had already taken notice of the same by allowing the father to retain half of his monthly income--­Balance having already been struck by the Family Court while allowing maintenance to the children, no infirmity could be found either in the judgment of Family Court or that of the Appellate Court justifying interference by the High Court in the exercise of Constitutional jurisdiction.

(c) Constitution of Pakistan (1973)-----

----Art. 199---Constitutional jurisdiction of High Court---Scope---When High Court exercises Constitutional jurisdiction its powers were not analogous to those of an Appellate Court---High Court although could strike down an order passed by a Subordinate Court or a Tribunal as without lawful authority and of no legal effect but it could not substitute its own judgment for that of the Subordinate Court or Tribunal.

(d) Constitution of Pakistan (1973)---

----Art. 185(3)---Supreme Court Rules., 1980, O.XIII, R.1, proviso---Petition for leave to appeal barred by four days---Supreme Court, keeping in view the circumstances of the case and the short period of delay condoned the delay.

Umer Farooq Khan, Advocate Supreme Court and Abdul Alim K. Talib, Advocate-on-Record for Appellants.

Nemo for Respondents

28th January, 1999.

2000SCMR91

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan, Wajihudin Ahmed

and Kamal Mansur Alam, JJ

NOORUDDIN and 11 others---Appellants

versus

ABDUL WAHID---Respondent

Civil Appeal No. 1770-K of 1997, decided on 9th June, 1999.

(On appeal from the judgment of the High Court of Sindh at Karachi, dated 23-5-1996, passed in H.C.A. No.21 of 1996).

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

----O. XLI, R. 11(1)---Law Reforms Ordinance-(XII of 1972), S.3--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider the questions whether the High Court Appeal could be dismissed in limine without sending for the record and whether O.XLI, R.11(1), C.P.C. was invocable.

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

----O. XLI, R. 11 & S.96---High Court (Lahore) Rules and Orders, Vol. V, Chap. 3-B, R.1---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal-a-Scope---No restraints on the powers of a Division Bench such as those construed qua Single Judges having Regular First Appeals governed by High Court (Lahore) Rules and Orders, Vol. V, Chap. 3-B, R.1 nor is there any restrictive practice---Original side jurisdiction from which the High Court appeal was occasioned, is peculiar to the High Court of Sindh and may not be saddled with the technicalities under O.XLI, C.P.C. applicable stricto senso to appeals mandated by S. 96, C.P.C.---High Court, while exercising jurisdiction under S. 3, Law Reforms Ordinance, 1972, has to apply its mind to the controversy involved and, if and when finding necessary, have the original side record placed before it---Principles.

There are no constraints on the powers of a Divisions Bench such as those construed qua Single Judges hearing regular first appeals governed by rule 1 of Chapter 3-B, Volume V of the High Court (Lahore) Rules and Orders nor is there any restrictive practice. The original side jurisdiction, from which the High Court appeal was occasioned, is peculiar to the High Court of Sindh and may not be saddled with all the technicalities under Order XLI of the Code of Civil Procedure, applicable, stricto senso, to appeals mandated by section 96 of the same Code. Even so, the High Court, when exercising jurisdiction under section 3 of the Law Reforms Ordinance, 1972, should duly apply its mind to the controversy involved and, if and when finding necessary, have the original side record placed before it.

Dismissal of a first appeal from an original decree was not a general rule, unless the facts be simple or undisputed. While even these factors, would not control and govern a High Court appeal, of the kind discussed all factors, necessary for advancement of justice, need to be attended to these requirements observed, a High Court appeal against an original decree may, if warranted, be dismissed in limine. To be precise, there should be a visible application of mind on the part of the Judges constituting a Division Bench in such matters.

None of the above can be construed to be an impediment invocable against the impugned judgment. The only thing amiss in the original and the appellate judgments, lies in the possibility that complete justice, in accordance with law, may not have been done.

Abid Hussain v. Mst. Afsar Jehan Begum PLD 1973 SC 1; London Assurance Co. Ltd v. Aini Amin Nizami PLD 1982 Kar. 841 and Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali, 1968 SCMR 828 ref.

(c) Easements Act (V of 1982)---

----S 33---Encroachment---Suit for removing encroachment allegedly made by defendant on the plaintiffs' plot by putting up a fresh dividing wall between the properties on a portion of land belonging to plaintiffs---Burden of proof not discharged by the plaintiffs---Effect---Supreme Court found the case to be fit for application of a licensed architect or engineer to visit the site and demarcate the plaintiff's property together with appurtenance, if any, with the necessary aid and assistance of the City Survey Staff at the expenses of plaintiffs as they had approached the Court for relief and remanded the case to High Court for the purpose.

Khalilur Rehman; Advocate Supreme Court for Appellants.

Kanwar Mukhtar Ahmad, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Respondent.

Date of hearing: 9th June, 1999.

2000SCMR95

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Mamoon Kazi and Kamal Mansur Alam,JJ

Messrs ABDUL AZIZ RAMZAN VALLI and others---Appellants

versus

HABIB BANK LIMITED---Respondent.

Civil Appeal No.233 of 1994, decided on 28th July, 1999.

(On appeal from the order, dated 23-1-1994 passed by the High Court of Sindh in Suit No.798 of 1989).

(a) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)---

----S. 6---Civil Procedure Code (V of 1908), O.XXXVII, R. 3---Constitution of Pakistan (1973), Art. 185(3)---Suit for recovery of loan by Bank---Leave to appear and defend the suit by defendant---Leave to appeal was granted by Supreme Court on the question, whether by granting leave to appear and defend the suit, the amount for which security was required by the Court included the interest upto the date of filing the suit or till the date of passing of the said order.

(b) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)---

---S. 6---Suit for recovery of loan by Bank---Leave to appear and defend the suit by defendant---Terms of furnishing the security---Discretion of the Court to specify terms of security---Security could be taken either in respect of the amount payable by the defendant at the time of filing of the suit or it could even include future interest till entire claim of the plaintiff was satisfied---Object behind requiring security from the defendant for future interest was to ensure satisfaction of the entire claim of the plaintiff in case a decree was ultimately passed against the defendants---Amount in respect of which security was required, must be a specified sum---Defendant, however, could not be burdened with obligation to furnish security in respect of something which had not been clearly specified in the leave granting order---Principles.

Suit having been filed under the Banking Companies (Recovery of Loans) Ordinance, 1979, the Provisions of Order XXXVII in the Civil Procedure Code, 1908 were applicable to it.

As is evident from the provisions of Rule 3, Order XXXVII leave to appear and defend the suit may be granted to the defendant if upon affidavits such facts are disclosed as would make it incumbent on the holder to prove consideration or on such other facts as the Court may deem sufficient to support the application. Clause (2) in Rule 3 of Order XXXVII further indicates that leave to defend may be given either unconditionally or subject to such terms as to payment into the Court or giving security, etc., as the Court deems fit. It is, however, pertinent to notice that, when the defendant is required to furnish security, no hard and fast rule as to its terms has been laid down by the said rule. It, therefore entirely lies in the discretion of the Court to specify terms of the security. Therefore, security may be taken either in respect of the amount payable by the defendant at the time of filing of the suit or it may even include future interest till the entire claim of the plaintiff is satisfied.

The object behind requiring security from the defendant for future interest was to ensure satisfaction of the entire claim of the plaintiff in case a decree is ultimately passed against the defendants. The amount in respect of which security is required, must be a specified sum. The defendant cannot be burdened with obligation to furnish security in respect of something which had not been clearly specified in the leave granting order.

The defendants would be required to furnish security only in respect of the amount specified in the plaint.

Faizuddin, Advocate Supreme Court and M.A.I. Qarni, Advocate-on-­Record for Appellants.

A.S. Pinger, Advocate Supreme Court and K.A. Wahab, Advocate-on-­Record for Respondent.

Date of hearing: 28th July, 1999.

2000SCMR99

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J, Wajihuddin Ahmad

and Kamal Mansur Alam, JJ

Mst. HAJRAN BEGUM through Legal Heirs and another---Petitioners

versus

INAYATUR REHMAN and another---Respondents

Civil Petition for Leave to Appeal No.211-K of 1999, decided on 3rd August, 1999.

(On, appeal from the judgment of the High Court of Sindh, Circuit Court, Hyderabad, dated 19-2-1999 in F.R. No. 169 of 1986).

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

----S. 2(g)(ii)---Tenant-hold, a commercial premises---Heirs of deceased tenant---Determination---Principles---Where the original tenant having died was succeeded by his widow and the shop-continued to run allegedly on widow's behalf by a man, who happened to be the husband of widow's sister, sister of the deceased lady and her brother should have been impleaded and appeal disposed of on merits by the High Court---Such having not been done and the dismissal of appeal having taken place on a hyper-technical ground, Supreme Court, converted petition into an appeal and allowed the same with order of remand of the case to be decided on merits---Amended memo. of appeal was directed to be submitted by and on behalf of two legal representatives of the deceased.

Only such heirs of a deceased tenant would succeed to the tenancy as be found to be "in possession or occupation of the premises after the death of the tenant". Such factual aspect would normally pose little difficulty where the tenant-hold is a residential unit. However, problems could arise where the tenancy of a commercial or non-residential premises stands in the name of an individual and such individual, having personally run the business, expires. For the successors to be determined in cases of the genus last mentioned, quite understandably, there can be no physical possession or occupation of any of the heirs of the tenant at the time of the tenant's demise and it is for this reason that the definition clause relates and is specific to the concept of possession or occupation to a point of time after the death of the tenant".

Ghiasuddin Mirza, Advocate Supreme Court for Petitioners.

Respondents in person.

Date of hearing: 3rd August, 1999.

2000 S C M R 102

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Ijaz Nisar

and Abdul Rehman Khar, JJ

ABDUL SALAM---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.299-L of 1999, decided on 20th July, 1999.

(On appeal from the judgment/order, dated 18-6-1999 passed by the Lahore High Court, Lahore in Crl. Revision 294 of 1998).

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

----S. 540---Summoning of material witness etc.---Power to summon material witness under 5.540, Cr.P.C. is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan case or private complaint, as the case may be---Only requirement is that he should be a material witness and his evidence should be essential for just decision of the case.

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

----S. 540---Penal Code (XLV of 1860), S.324/337(a)(f)/148/149---Constitution of Pakistan (1973), Art.185(3)---Summoning of witness---Cross-version in the shape of complaint was present before the Court for the injuries suffered by the complainant's brother which according to the Medical Board could not be self­ inflicted---Medical Officer who had examined complainant's brother was a material witness and his evidence was essential to the just decision of the challan case as well as the complaint case---Trial Court was, thus, not justified to decline to summon the Medical Officer---Petition for leave to appeal was consequently converted into appeal and allowed and the Trial Court was directed to summon the said Medical Officer with the relevant record and examine him as witness as requested by the complainant.

Ch. Abdul Rehman Cheema, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

S.D. Qureshi, Advocate Supreme Court for the State.

Date of hearing: 20th July, 1999.

2000 S C M R 104

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J, Nasir Aslam Zahid and Mamoon Kazi, JJ

GHULAM SARWAR BHUTTO ---Petitioner

versus

CHIEF SECRETARY TO GOVERNMENT OF SINDH

and others---Respondents

Civil Petition No. 604-K of 1998, decided on 5th April, 1999.

(On appeal from the order of the Sindh Service Tribunal, dated 1-6-1998 passed in Appeal No.59 of 1998).

Sindh Service Tribunals Act (XV of 1973)---

----Ss. 3-E & 4---Employee---of Corporation---Termination of service--­Validity---Appeal---Limitation---Provision of S. 4, Sindh Service Tribunals Act, 1973 was applicable only to civil servants and not to persons who invoke jurisdiction off Service Tribunal by virtue of S. 3-E of the said Act---Legislature by insertion of S. 3-E in the Sindh Service Tribunals Act, 1973 had only intended to provide a remedy for redressal of grievance to person serving in Corporations owned and controlled by the Federal Government or Provincial Government, but the other terms and conditions applicable to such persons were not intended to provided in S. 4 to civil servants could not be made applicable to persons as such by S. 3-E, Sindh Service Tribunals Act, 1973 as right of a departmental appeal may not be available to them as provided for in case of civil servants.

In the present case Service Tribunal while dismissing the appeal 'of the employee had proceeded on an assumption that section 4 of the Sindh Service Tribunals Act was applicable in the case of the employee. Although the procedure, as provided by section 4, was not followed in this case by the employee as appeal before the Tribunal was not filed within the period of limitation as provided by the said section but section 4 is applicable only to civil servants and not to persons who invoke jurisdiction of the Tribunals by virtue of deeming clause inserted in Service Tribunals Act or similar Provincial enactments. The Tribunal had failed to notice that such amendments whereby civil servants had been made only in the Service Tribunals Act both Federal as well as Provincial but corresponding amendments had not been made3 in the Civil Servants Act. Therefore, the Legislature had only intended to provide a remedy for redressal of grievances to persons serving in corporations owned or controlled by Federal or a Provincial Government but the other terms and conditions be made applicable to such persons. Consequently the period of limitation, as provided in section 4, which was applicable only to civil servants, could not be made applicable to person who had been declared as such by the said deeming provisions in the Service Tribunals Act as right of a departmental appeal may not be available to them as provided for in case of a civil servant.

Petition for leave to appeal was converted into an appeal and the case was remanded to the Tribunal for giving a fresh decision on the question of limitation, and thereafter consider the merits of the case, if the first question was decided in favour of petitioner.

Muhammad Siddique v. Allama Iqbal Open University Islamabad C.P. No.483 of 1998 and 685 of 1998. ref.

Petitioner in person.

Iqbal Raad, Advocate-General Sindh for Respondents.

Date of hearing: 5th April, 1999.

2000 S C M R 107

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J. Munawar Ahmed Mirza and

Munir A. Sheikh, JJ

Mian MANZOOR AHMAD WATTO---Petitioner

versus

THE STATE----Respondent

Criminal Petitions Nos. 140 to 142 of 1999, decided on 13th August, 1999.

(On appeal from the judgment of Lahore High Court dated 15-6-1999 passed in Crl. M. Nos. 1550, 1551 and 1554-B of 1999).

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

----S 497(1), first proviso---Bail on medical ground---Principles---Correct criteria for grant of bail to an accused in a non-bailable case on medical ground would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

Muhammad Yousafullah Khan v. State PLD 1995 SC 58 and Zakhim Khan Masood v. State 1998 SCMR 1065 ref.

(b) Criminal trial---

----Object---Object of criminal trial is to make the accused to face the trial and answer the criminal charge against him and not to punish an under trial prisoner for the offence alleged against him.

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

----S. 497(1), first proviso---Penal Code (XLV of 1860), S.109/409/ 420/468/471---Prevention of Corruption Act (II of 1947), S.5(2 )--­Constitution of Pakistan (1973), Art. 185(3)---Bail on medical ground---Medical report received from the Specialised Medical Institute had led to the conclusion that continued detention of accused in the jail was hazardous to his life and that the specialized treatment needed by him could not be provided within the jail premises---Object of criminal prosecution was not to punish the accused for the offence alleged against him, but to make him face the trial and answer the criminal charge against him---Accused was admitted to bail on medical ground in circumstances.

Muhammad Arshad v. The State 1997 SCMR 1275; Muhammad Yousafullah Khan v. State PLD 1995 SC 58 and Zakhim Khan Masood v. State 1998 SCMR 1065 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Sardar M. Latif Khan Khosa, Advocate Supreme Court and S. Abul Aasim Jaferi, Advocate-on-Record for Petitioner.

Ashtar Ausaf Ali, Advocate-General Punjab, Kh. Sultan Ahmed, Special Prosecutor and Rao M. Yousaf, Advocate-on-Record for the State.

Date of hearing: 13th August, 1999.

2000SCMR112

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Sh. Ijaz Nisar and Mamoon Kazi, JJ

GOVERNMENT OF PAKISTAN through Ministry of Finance

and Economic Affairs and another---Appellants

versus

FACTO BELARUS TRACTORS LIMITED---Respondent

Civil Appeal No. 1176 of 1997, decided on 1st September, 1999.

(On appeal from the judgment of the Lahore High Court, dated 4-8­1997 passed in L-C.A. No.84 of 1997)

(a) Customs Act (IV of 1969)---

-----Ss. 19, 31-A, 31 & 30---Constitution of Pakistan (1973). Art. 185(3)--­S.R.O. 921(1)/94, dated 22-9-1994---S.R.O. 1189(1)/4/94, dated 11-12-1994--­S.R.0.388(1)/96, dated 13-6-1996---S.R.O. 414(1)/96, dated 13-6-1996--­Leave to appeal was granted to examine the effect of different notifications issued by the Federal Government.

(b) Customs Act (IV of 1969)---

----Ss. 31-A, 30 & 19---Qanun-e-Shahadat (10 of 1984), Art. 114---Economic Reforms Act (XI1 of 1992;, Ss. 2(1) (6). 6 & 10---S.R.O. 921(1)/94, dated 22-9-1994---S.R.0.1189(1)/4/94, dated 11-12-1994---S.R.O. 388(1)/96, dated 13-6-1996---S.R.O. 414(1)/96. dated 13-6-1996---Effective rate of customs duty---Principle of promissory estoppel ---Applicability---Principle of estoppel was though available against the Government or its functionaries but said principle .was not available against the Legislature--- Doctrine of legitimate expectation---Whether invocable---Principles---No executive action can operate retrospectively so as to impair vested rights or impose new obligations but the same principle cannot apply in case of a legislative provision---Even if a contract had been entered into by a party upon exemption granted under S.19, Customs Act, 1969, no vested right would be created so as to deprive the competent Authority from rescinding such exemption---Section 31-A, of the said Act, stipulated that any amount of duty which became payable in consequence of withdrawal of a concession or exemption from duty, even though such withdrawal took place after conclusion of a contract for sale of goods or opening of a letter of credit would be payable in terms of S.30, Customs Act, 1969--­Embargo put on the power of the Government to withdraw an exemption after a contract had already been entered by a party or letter of credit had been opened by it in the case of Samrez Enterprise v. Federation of Pakistan (1986 SCMR 1917) was no longer applicable.

Although, the doctrine of estoppel is available in Pakistan against the Government or its functionaries, but said doctrine is not available against the Legislature. Although, no executive action can operate retrospectively so as to impair vested rights or impose new obligations but the same principle cannot apply in case of a legislative provision. Even if a contract had been entered into by a party upon exemption granted under section 19 of the Customs Act, no vested right would be created so as to deprive the competent-, Authority from rescinding such exemption as section 31-A of the said Act, now clearly stipulates that any amount of duty which becomes payable in consequence of withdrawal of a concession or exemption from duty, even though such withdrawal takes place after conclusion of a contract for sale of goods or opening of a letter of credit, would now be payable in terms of section 30 of the Customs Act. The said section 30 provides that, the rate and amount of duty applicable to any imported goods shall be the rate and amount chargeable on the date of the presentation of the bill of entry. The rule of promissory estoppel earlier laid down by the Court in the case of Al-Samrez Enterprise v. Federation of Pakistan (1986 SCMR 1917) putting an embargo on the power of the Government to withdraw an exemption after a contract had already been entered into by a party or letter of credit had been opened by it, was no longer applicable.

In the present case, though the competent Authority had authorised the party to avail benefit of exemption under the earlier notifications which were applicable during the first phase of the scheme and on the faith of the said letter, the party claimed to have entered into an agreement with the foreign supplier for import of tractors, but promissory estoppel could not be involved against provisions of any legislation, even if they authorise the Government to impose new obligations or to withdraw existing concessions. Consequently, the doctrine of promissory estoppel could not be involved to defeat the provisions of section 31-A of the Customs Act.

Reference to the provisions of Economic Reforms Act. 1992 was completely misplaced. Equally misconceived was invocation of the doctrine of legitimate expectation as the doctrine could not be invoked to nullify effect of a the legislative provision.

Mukhtar Ahmad v. Government of West Pakistan PLD 1971 SC 846; Robertson. v. Minister of Pensions (1948) 2 All E.R. 766; Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh AIR 1979 SC 621; Messrs Nizam Impex and another v. Government of Pakistan 1990 SCMR 1187; Mian Nazir Sons Industries Ltd. v. Government of Pakistan 1992 SCMR 883; Molasses Trading &' Export Ltd. v. Federation of Pakistan 1993 SCMR 1905; M/s Army Welfare Sugar Mills Limited v. Federation of Pakistan 1992 SCMR 1652; Messrs M.Y. Electronics Industries Ltd. v. Government of Pakistan 1998 SCMR 1404 and Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 ref.

Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917 no longer applicable.

(c) Customs Act (IV of 1969)---

----Ss. 31-A, 30 & 19---Economic Reforms Act (XII of 1992), Ss. 2(1)(b), 6 & 10---S.R.O. 1283(1)/90, dated 13-12-1990 and S.R.O. 1284(1)/90, dated 13-12-1991---Effective date of customs duty---Exemption---Withdrawal---No general protection had been intended to be provided to any importer of finished industrial products by Ss. 6 & 10 of the Economic Reforms Act, 1992---Fiscal incentives providing for Economic Reform---Object and purpose of Economic Reforms Act, 1992 stated.

Preamble of the Economic Reforms Act, 1992 indicates that object for which the said Act came into force was to provide legal protection to economic reforms introduced by the Government and create a liberal environment for savings and investments and other matters related thereto. Section 6 is intended only to provide protection to fiscal incentives for investments and industrialisation in the country. Therefore, it cannot be extended to matters, where such object is not intended to be achieved. The section also provides protection to Notifications NOS.S.R.0.1283(1)/90 and S.R.0.1284(1)/90, both, dated 13-12-1990, which have been referred to in the Schedule to the said Act. So far as section 10 is concerned, no doubt it provides that all financial obligations including those under any instrument incurred on behalf of the Government shall continue to remain in force and shall not be altered to the disadvantage of the beneficiaries, but the provisions of sections 6 and 10 cannot be interpreted in isolation without taking into account the purpose and object of the statute. Therefore, the object behind the Act only appears to be to provide fiscal incentives for economic reforms as defined by section 2 of the Act and industrialisation in the country as part of the economic policies and programmes of the Government. Therefore, no general protection appears to have been intended to be provided to any importer of finished industrial products by the said section.

Messrs. Ellahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Messrs Zasha Ltd. v. Agricultural Development Bank of Pakistan PLD 1993 Lah. 914 and Garton Industries Limited v. Government of Pakistan 1999 SCMR 1072 ref.

(d) Economic Reforms Act, (XII of 1992)---

----Preamble & Ss. 2(1)(b), 6 & 10---Object and purpose of the Act---Scope and application of Ss. 2(1)(b), 6 & 10, Economic Reforms Act, 1992.

(e) Customs Act (IV of 1969)---

----S. 31-A---Constitution of Pakistan (1973), Arts. 199 & 185---Constitutional petition---Recovery of public revenue---If the claim of the Government to recover duty or tax was otherwise sustainable under the law, relief could not of granted to a party at the cost of public revenue even if its claim to the same- was founded on high moral grounds.

Muhammad Baran v. Member Settlement and Rehabilitation Board of Punjab PLD 1991 SC 691 and Muhammad Saleem v. Superintendent of Police Sialkot PLD 1992 SC 369 distinguished.

Ch. Muhammad Farooq, Attorney-General and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

S. Sharifuddin Pirzada, Senior Advocate Supreme Court and M.A.

Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 25th March, 1999.

2000 S C M R 122

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

MIRAJ KHAN---Petitioner

versus

GUL AHMED and 3 others---Respondents~

Criminal Petition No.54-P of 1999, decided on 11th August, 1999.

(On appeal from the judgment, dated 11-6-1999 of the Peshawar High Court, Peshawar, passed in Criminal Miscellaneous No. 192 of 1998).

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

----Ss. 561-A, 249-A & 265-K---Inherent jurisdiction of High Court ---Quashing of proceedings---High Court in exceptional cases can exercise jurisdiction under S. 561-A, Cr.P.C. without waiting for Trial Court to pass orders sunder-S.249-A, or 265-K, Cr.P.C., if the facts of the case so warrant---Main consideration to be kept in view would be, whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not---If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

(b) Penal Code (XLV of 1860)---

----S. 406/419/420---Constitution of Pakistan (1973), Art. 185(3)---High Court had quashed the F.I.R. lodged by the complainant---Validity---Complainant in the F.I.R. which was based on his written application had admitted that the disputed amount was given to the accused as "Qarze Hasna"---Addition of the word "Amanat" with "Qarze Hasna" was ridiculous and appeared to have been added so as to justify the registration of the criminal case---No offence even on admitted facts could be made out against the accused as the dispute was entirely of civil nature which with ulterior motive had been converted into criminal proceedings---Further proceedings in the Trial Court on the basis of impugned F.I.R. would have been sheer wastage of time---High Court, therefore, had rightly quashed the F.I.R. and the impugned order was not open to any exception---Leave to appeal was refused accordingly.

Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; State through Advocate-General, N.-W.F.P., Peshawar and others v. Gulzar Muhammad and others 1998 SCMR 873 and Muhammad Ali and others v. Assistant Commissioner, Narowal and another 1987 SCMR 795 ref.

Muhammad Zahoor Qureshi Azad, Advocate-on-Record for Petitioner.

Kh. M. Khan, Advocate Supreme Court and S. Safdar Hussain, Advocate-on-Record (absent) for Respondent.

Date of hearing: 11th August, 1999.

2000SCMR 125

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munawar Ahmed Mirza

and Abdur Rehman Khan, JJ

HAZRAT MUHAMMAD KHAN and 6 others---Petitioners

versus

MUHAMMAD ZAIR KHAN and 2 others---Respondents

Criminal Appeal No.279 of 1999 in Criminal. Petition for Leave to Appeal No. 81-P of 1998, decided on 15th July. 1999.

(On appeal from the order dated 6-11-1998 of the Peshawar High Court, Peshawar passed in Cr. Misc.No.37 of 1998).

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

----S.145---Dispute concerning land etc. likely to cause breach of peace--­Section 145, Cr.P.C. is self-contained and self-explanatory and Magistrate has to confine himself to the section itself only.

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

----S. 145---Constitution of Pakistan (1973), Art. 1$5(3)---Parties in order to prove the factum of their actual possession on the land in dispute had not only put in their written statements but had also adduced their respective evidence both ocular and documentary and then the Illaqa Qazi had passed the order whereby the disputed land was held to be in possession of the petitioners and the respondents were held to have attempted to take possession thereof in the garb of the complaint and got the same attached---No legal infirmity in the said order of Illaqa Qazt. which could have vitiated the proceedings was either assented or pointed out before the Revisional Court or the High Court warranting their interference---Grounds which weighed with the Revisional Court in passing the impugned order duly affirmed by the High Court were extraneous to the mandatory formalities to be adhered to by the Illaqa Qazi in such proceedings--­High Court, therefore, was in error in upholding the order of Izafi Zilla Qazi to remand the case to the Illaqa Qazi for making over the complaint to the local police for report and for personal inspection of the Illaqa Qazi and to conduct an inquiry---Magistrate or the local police could only determine as to whether the proceedings under S. 107/151, Cr.P.C. could be initiated or not depending upon the severity of apprehension of the breach of peace---Petition for leave to appeal was consequently converted into appeal and the orders of Izafi Zilla Qazi and High Court were set aside and the order of Illaqa Qazi was restored.

Mazullah Barkandi, Advocate Supreme Court with K.G. Sabir, Advocate-on-Record for Petitioners.

Muhammad Zahoor Qureshi, Advocate-on-Record for Respondents Nos. 1 and 2.

Imtiaz Ali, A.A.-G. for Respondent No.3.

Date of hearing: 15th July, 1999.

2000 S C M R 130

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Sh. Ijaz Nisar and Kamal Mansur Alam, JJ

NASAR KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 193 of 1995, decided on 27th August, 1999.

(On appeal from the judgment/order, dated 28-9-1993 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 143 of 1991).

(a) Penal Code (XLV of 1860)---

----Ss. 302 & 201---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to the accused to consider whether the retracted judicial confession relied upon by the Courts below suffered from any legal infirmity.

(b) Penal Code (XLV of 1860)---

----Ss. 302 & 201---Appraisal of evidence---Prosecution witnesses had no enmity with the accused, nor they were shown as interested witnesses by the record--­Essential prerequisites had been followed by the Magistrate while recording judicial confession of the accused---Circumstances disclosed by the accused in his judicial confession were supported by the autopsy on the body of the deceased and the recovery of the dead body on his pointation---Crime empties recovered from the place of occurrence had matched with the licensed pistol of accused ---Recovery of the motor-cycle of deceased from the house of the father of accused on his pointation was not reasonably explained by him---Prosecution had, thus, fully established its case against the accused regarding the murder of the deceased---Conviction and sentence of death awarded to accused under S.302, P.P.C. were upheld accordingly---Accused, however, was acquitted of the charge under 5.201, P.P.C., as he having been charged for the main offence i.e., murder, could not be convicted for disappearance of evidence to screen or save himself.

Farid Muhammad v. The State PLD 1959 (W.P.) Pesh. 12 and Gulzar Khan v. The State PLD 1963 (W.P.) Pesh. 178 ref.

(c) Penal Code (XLV of 1860)---

----Ss. 302 & 201---Criminal Procedure Code (V of 1898), S. 164--­Appreciation of evidence---Retraction from judicial confession by accused--- Retraction from his confession by accused cannot by itself be made a ground for its rejection, the only requirement in this respect is to ensure that it was voluntary, true and fits in the prosecution story.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ejaz Muhammad Khan, Addl. A.G., N.-W.F.P. with Haji M.A. Qayyum Mazhar, Advocate-on-Record (absent) for the State.

Dates of hearing: 24th and 25th May, 1999.

2000 S C M R 134

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Munawar Ahmed Mirza, JJ

MUHAMMAD USMAN and 9 others---Petitioners

versus

Haji ABDUL KAREEM and 5 others---Respondents

Civil Petition No. 102-Q of 1998, decided on 21st September, 1999.

(On appeal from the judgment, dated 11-5-1998 of the High Court of Balochistan passed in C.R. No.264 of 1997).

Civil Procedure Code (V of 1908)---

----O. I, R.8---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration and permanent injunction in respect of land by Sardar (Head) on behalf of the tribe---Maintainability---Tribal Chief or the Malik could not represent the tribe as recognised agent before a Court of law or derive any authority to lawfully act on behalf of the tribe in a representative manner--­ Where the plaintiff, the deceased Sardar of the tribe, or his legal heirs, could not produce any documents to show as to what ownership rights they had in the land and there were deficiencies, infirmities and vagueness in their evidence, which they could not controvert, deceased Sardar or his legal heirs could not represent and prosecute the suit on behalf of the tribe---Suit filed by Sardar of the tribe in a representative capacity, which was not competent and legal heirs of the deceased Sardar having not been able to establish their individual rights and their extent through evidence, documentary or oral in the suit, petition for leave to appeal was dismissed.

Malik Khanan v. Malik Baz Muhammad,Khan PLD 1983 Quetta 30 approved.

Saleh Muhammad v. Jumma Khan Agha 1983 SCMR 587 distinguished.

Muhammad Zaffar, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st September, 1999.

2000 S C M R 139

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. CJ and Sh. Ijaz Nisar, J

DIRECTOR-GENERAL, FIA HEADQUARTERS, ISLAMABAD

and others---Petitioners

versus

MUSHTAQ AKHTAR, ASSISTANT DIRECTOR, FIA---Respondent

Civil Petition No.489-L of 1999, decided on 8th September, 1999.

(On appeal from the judgment dated 11-1-1999 of the Lahore High Court, Lahore in Writ Petition No.5867 of 1998).

Service Tribunals Act (LXX of 1973)----

----S. 4 [as amended by Service Tribunals (Amendment) Act, (XVII of 1997)]--­Constitution of Pakistan (1973), Arts. 212(3) & 199---Disciplinary proceedings---Constitutional petition before High Court under Art. 199 of the Constitution---Maintainability---Contention was that High Court had misdirected, itself in the matter on the ground that "as the order impugned before High Court was not final order, the Constitutional petition was maintainable," inasmuch as, it escaped notice of the High Court that by virtue of Service Tribunals (Amendment) Act, 1997 the word "final" had been deleted from S.4 of the Federal Service Tribunals Act, 1973 and, therefore, Service Tribunal alone had the exclusive jurisdiction in the matter---Leave to appeal was granted by the Supreme Court to consider the contentions with directions that operation of the judgment of High Court would stand suspended till hearing of the appeal--­Authorities were permitted to continue with the inquiry proceedings but neither any final order was to be passed pursuant thereto nor any adverse action was 'to be taken against the civil servant in the meantime.

Khawaja Saeed-uz-Zafar, D.A.G., and Rao M. Yusuf Khan, Advocate­-on-Record for Petitioners.

M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 8th September, 1999.

2000 S C M R 141

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

Dr. SURRAYA JAVED---Petitioner

versus

DIRECTOR-GENERAL, HEALTH SERVICE and another---Respondents

Civil Petition No.365-P of 1999, decided on 4th August, 1999.

(On appeal from the judgment dated 17-5-1999 of the N.-W.F.P. Service Tribunal, Peshawar passed in Service Appeal No.351 of 1999).

(a) Mala fides---

---- Mala fides must he specifically pleaded, clarified and explained so that its nature was known which could then be subject to scrutiny by the Court.

(b) Civil service---

---- Transfer of civil servant---Public interest---Not necessary that in transfer order, detail must be given to justify that it was made in the interest of public at large---Transfer orders which are passed in the discretion of the Competent Authority cannot be challenged in routine on flimsy grounds but if such orders are impugned on the basis of mala fides or ulterior motive, then those must be specifically alleged and established from some material on record.

Secretary to Government of Punjab Health Department v. Miss Sarwar Jehan Haq 1996 SCMR 374 ref.

Khushdil Khan Mohmand, Advocate Supreme Court and M. Zahoor Qureshi Azad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th August, 1999.

2000 S C M R 144

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

PROVINCE OF PUNJAB through Director of Agriculture

(E & M), Government of Punjab, Lahore and others---Petitioners

versus

SARDAR AHMAD---Respondent

Civil Petition for Leave to Appeal No.430-L of 1998, decided on 8th September, 1999.

(On appeal from the judgment dated 10-12-1997 passed by Lahore High Court, Bahawalpur Bench, in W.P. No.5477 of 1997/BWP).

Constitution of Pakistan (1973)---

----Arts. 212(3) & 199---Appointment of civil servant on temporary basis--­Termination of service after five months pursuant to the directive issued by the Prime Minister Secretariat, seeking review of all recruitments which were in contravention of merits and in violation of policy---Civil servant challenged his termination from service before High Court under its Constitutional jurisdiction under Art. 199 of the Constitution wherein High Court directed the Provincial Government to relax the ban on recruitment to the extent of the case of civil servant---Validity---Contention of the Authority was that High Court had no jurisdiction to interfere with the matter, in view of the ban contained in Art.212 of the Constitution, inasmuch as, the matter related to the terms and conditions of service of civil servant---Leave to appeal was granted by Supreme Court to the Authority to consider whether in the circumstances of the case, the High Court was competent and justified to pass the impugned order, with direction that meanwhile, operation of the order of the High Court was suspended.

Muhammad Sharif Butt, Advocate Supreme Court with Rao Muhammad Yusuf Khan, Government Advocate-on-Record for Petitioner.

Date of hearing: 8th September, 1999.

2000SCMR 145

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Munawar Ahmed Mirza, JJ

PAIND KHAN and another--Petitioners

versus

JEHANDAD KHAN and 8 others---Respondents

Civil Petition No. 126-Q of 1998, decided on 23rd September, 1999.

Muhammadan Law---

---- Inheritance in immovable lease-hold property---Leave to appeal was granted by Supreme Court to consider whether the High Court was correct in holding that lease-hold rights in immovable property were not heritable and did not devolve on the legal heirs of the deceased who held such lease-hold rights--­Constitution of Pakistan (1973), Art. 185(3).

Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioners.

Mrs. Ashraf Abbas, Advocate-on-Record for Respondents.

Date of hearing: 23rd September, 1999.

2000 S C M R 147

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munawar Ahmed Mirza

and Abdur Rehman Khan, JJ

RASHID AZ1Z and others---Petitioners

versus

PROVINCE OF N.-W.F.P. through Secretary, Livestock and

Dairy Development Department and another---Respondents

Civil Petitions Nos. 248-P to 251-P of 1998, decided on 16th July, 199,9.

(On appeal from the judgment dated 22-9-1998 of the N.-W.F.P. Service Tribunal passed in Appeals Nos. 328 of 1997, 329 of 1997, 330 of 1997 and 331 of 1997 respectively).

North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10(2)---Constitution of Pakistan (1973), Art. 212(3)---Irregular appointment---Termination of service---Service Tribunal by reaching the conclusion that selection of the civil servants was not made on merits, applications for appointment were entertained after the last date fixed for the receipt of applications; that merit was flouted and the codal formalities were not adopted; that the orders of Provincial Minister were blindly followed ignoring the deserving candidates and;, that all this rendered the whole exercise of selection dubious as same was made against the rules and all canons of justice and fairplay, rejected the appeal of civil servants against their dismissal--­Validity---Leave to appeal was granted by Supreme Court to consider whether order of termination of services of the civil servants in the factual background of the case were not sustainable in view of letters by the relevant department and the law laid down by Supreme Court in the case of Director, Social Welfare Department Government of N.-W.F.P. v. Sadullah Khan 1996 SCMR 1350.

Director, Social Welfare Department, Peshawar v. Saadullah Khan 1996 S C M R 1350 ref.

M. Jamil Khan, Advocate Supreme Court with M. Zahoor Qureshi Azad, Advocate-on-Record for Petitioners (in all Civil Petitions).

Nemo for Respondent (in all Civil Petitions).

Date of hearing: 16th July, 1999.

ORDER

MUHAMMAD BASHIR JEHANGIRI, J.---The above four identical petitions for special leave to appeal are directed against a common judgment, dated 22-9-1998, dismissing Appeals Nos.f28 of 1997 to 331 of 1997 by the N.-W.F.P. Service Tribunal, Peshawar (hereinafter called as the Tribunal) which were separately filed by the four petitioners herein.

1. The four petitioners were appointed as Junior Clerks on 19-6-1996. On completion of formalities prescribed under the Rules, they reported their arrival on 24-4-1996 (F.N.) in the Office of Assistant Director Livestock and Dairy Development Department, Mansehra. They were performing duties when all of a sudden their services were terminated on 4-2-1997 by respondent No.2 on the ground that their appointments were found illegal, ab initio void and against the prescribed Rules". They filed appeals for their reinstatement in service before respondent No.1 but to no avail as the same were rejected. All the four petitioners, therefore, filed appeals before the Tribunal. The grievance of the petitioners was that they were appointed by respondent No.2 who was competent authority; that no irregularity has been committed in their appointments; that they possessed the requisite qualifications for the posts of Junior Clerk; that the petitioners could not be punished for any act of omission or commission of the respondents, if any, and; that they had been condemned unheard.

2. In their parawise comments before the Service Tribunal, the respondents pleaded that the c9nstitution of the Departmental Appointment Committee was contrary to the Notification issued by the Government of N.-W.F.P., S&GAD (Regulation Wing) No.SOR1 (S&GAD)4-1/25, dated 17-6-1989; that the selection of the candidates was made on the directives of the Minister for Livestock and Dairy Development Department and not on merits; that the Government of N.-W.F.P. vide letter dated 2-2-1997 "asked for termination of services of those employees who were irregularly appointed and in compliance whereof the services of the petitioners were terminated which was a legal step taken in pursuance of the terms and conditions of appointments and; that respondents Nos. l and 2 had never "admitted the fact that the appointments of the petitioners were in accordance with the Rules, therefore, the impugned order dated 4-2-1997 was in the light of the said directives".

3. After hearing the learned counsel for the parties, the learned Tribunal reached the conclusion "that the selection of the petitioners was not made on merits; that their applications for appointment were entertained after the last date fixed for the receipt of applications; that merit "was flouted and the codal formalities were not adopted; that the order of Ex-Minister Livestock and Dairy Development Department were blindly followed ignoring the deserving candidate and; that all this rendered the whole exercise of selection dubious as it was made against the Rules and all the canons of justice and fairplay. Their appeals were thus dismissed.

4. Mr. Muhammad Jamil Khan, learned Advocate Supreme Court in support of the petitions, contended before us that the petitioners had been appointed after observing all the necessary codal formalities of advertising the posts in the leading newspapers and holding of the interview by the Departmental Appointment Committee for selection of eligible candidates. According to the learned counsel, the respondents had themselves first made the appointments and later on they had turned around and pleaded that the appointments were illegal, ab initio void and violative of the codal formalities. In this context, the learned counsel placed reliance on the principal enunciated by this Court in the case of Director, Social Welfare Department, Peshawar v. Saddullah Khan (1996 SCMR 1350). The learned counsel further submitted that in the order, dated 4-2-1997 terminating the services of the petitioner, the Section Officer (Adorn.) of the Department recommend to the S&GAD in the Government of -N.-W.F.P. to allow the petitioners to continue in service from the date of termination and had also observed therein that "the appointments of the petitioners were made after observing the coda] formalities". In this context the learned counsel invited our attention to the following two letters:--

(i) Letter No. 271, dated 17-3-1997 addressed by the Project Director/Principal Animal Husbandry Inservice Training Institute, Peshawar, to the Secretary to Government of N.-W.F.P. Food, Agriculture' Livestock and Cooperative Department, in para. 2 whereof it had been conceded in terms unequivocal that the petitioners had been appointed "after observing the laid down codal formalities".

(ii) Letter No.SOG(AD) 1-2/Ehtesab, dated 21-3-1997 addressed by Section Officer (Adorn,.) in the Government of N.-W.F.P. Agriculture Department to the Deputy Secretary in the Government of N.-W.F.P. (Services) S&GAD that employees may be allowed to continue in service with effect from 4-2-1997 when their services were terminated."

1. After hearing the learned counsel for the petitioners we are inclined to grant leave in these petitions to consider whether the impugned orders of termination of the services of the petitioners, dated 4-2-1997, in the factual background of the case, were not sustainable in view of letter No.271, dated 17-3-1997 addressed by the Project Director/s Principal, Animal Husbandry Inservice Training Institute, Peshawar, and No. SOG(AD)1-2/Ihtesab, dated 21-3-1997 issued by the Section Officer (Adorn.) Agriculture Department, Government of N.-W.F.P. to the Deputy Secretary (Services), Government of N.-W.F.P. S & GAD and the law laid down by this Court in the case of Director, Social Welfare Department, Government of N.-W.F.P. v. Sadullah Khan (1996 SCMR 1350).

M.B.A./R-51/S Leave granted.

2000 S C M R 150

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. CJ. and Sh. Ijaz Nisar, J

MUHAMMAD NAVEED and others---Petitioners

versus

THE STATE---Respondent

Criminal Petition No. 424-L of 1999, decided on 16th September, 1999.

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

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), 5.10/11---Constitution of Pakistan (1973), Art. 185 (3)---Bail---Court while considering the application for grant of bail has to decide the same justly, fairly and in accordance with law on the basis of material available on record---' Investigation reports might be relevant but not the sole criteria for grant of bail---Every case was to be decided on its own merits depending upon its facts and circumstances---Discretion exercised by the High Court in declining bail to accused did not suffer from any legal infirmity and its well-reasoned discretionary order did not call for any interference---Leave to appeal was consequently declined to accused by Supreme Court.

Ch. M. Hanif Khatana, Advocate Supreme Court and C. M. Latif, Advocate-on-Record for Petitioners.

Masood Sadiq Mirza, Advocate Supreme Court for the State.

Date of hearing: 15th September, 1999.

2000SCMR 152

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza

and Kamal Mansur Alam, JJ

MEHBOOB ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.39-Q of 1997, decided on 13th September, 1999:

(On appeal from the judgment dated 29-7-1997 passed -by the High Court of Balochistan, Quetta, in Criminal Appeal No.349 of 1996).

(a) Penal Code (XLV of 1860)---

----Ss. 302/34 & 324/34---Appreciation of evidence---Testimony of solitary witness ---Factum of placing implicit reliance upon testimony of solitary witness whose presence is otherwise' established depends upon circumstances of each case and satisfaction of the Court---Mere existence of enmity when solitary ocular version is unimpeachable and confidence inspiring, becomes irrelevant.

Pervaiz v. State 1998 SCMR 1976 ref.

(b) Penal Code (XLV of 1860)---

---Ss. 302/34 & 324/34---Constitution of Pakistan- (1973), Art-185(3)--­Complainant was undisputedly injured during the incident and in such condition it was not possible for him to give complete account with mathematical precision about location of injuries inflicted during said turmoil---Agony, disturbed mind and chaos which said witness must be undergoing simultaneously at the time of incident could not be ignored---Minor omissions made by complainant causing a conflict of medical evidence with ocular version were, therefore, inconsequential---Courts below after thorough scrutiny of entire record by assigning logical conclusions had found the accused guilty for the offence committed by him and in their respective judgments had independently expressed full satisfaction about credibility and convincing nature of the testimony given by the complainant---No substantial reason or legal justification was available for interference with the said concurrent findings of the Courts below--­Leave to appeal was declined to accused by Supreme Court in circumstances.

Haroon v. The State 1995 SCMR 1627; Pervaiz v. State 1998 SCMR 1976; Allah Bakhsh v. Shammi PLD 1980 SC 225 and Gulistan v. State 1995 SCMR 1789 ref. , Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 13th September, 1999.

2000SCMR155

[Supreme Court of Pakistan]

Present: Irshan Hasan Khan, Actg. CJ and Sh. Ijaz Nisar, J

AZHAR HUSSAIN and others---Petitioners

versus

THE STATE---Respondent

Criminal Petition No. 140-L of 1999, decided on 15th September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34/449/452/324---Constitution of Pakistan (1973), Art. 185 (3)---Bail---Accused were specifically named in her 'dying declaration by the deceased and also in the statements of other witnesses recorded under S. 161, Cr.P.C---Well-reasoned order of High Court cancelling bail of the accused granted by Trial Court did not require any interference---Trial Court was, however, directed to conclude the trial within the specified period---Leave to appeal was refused to accused accordingly.

Mehdi Khan Mehtab, Advocate-on-Record for Appellants.

Mian Abdul Qayyum Ansari, Advocate Supreme Court for the State.

Sh. Khizar Hayat, Advocate Supreme Court and S. Abdul Asim Jafri, Advocate-on-Record: Caveat.

Date of hearing: 15th September, 1999.

2000 S C M R 157

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza and

Kamal Mansur Alam, JJ

SHAMRAIZ KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.26-Q of 1998, decided on 16th September, 1999.

(On appeal from the judgment dated 17-7-1998. of the High Court of Balochistan in Cr. B. App. 199 of 1998).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.409/467/468/471/477-A/420/109--­Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.185(3)---Bail---Accused as a contractor of Food Department in conspiracy with co-accused, all officials of the said Department, had allegedly short delivered wheat in bags owned by the Government value whereof was about Rs.15 crores---More or less the entire amount had been deposited or was going to be deposited by the accused---Seventeen co-accused in the case had already been granted bail---Interim bail granted to accused was confirmed in circumstances subject to deposit of the remaining undeposited amount---Petition for leave to appeal was converted into appeal and disposed of accordingly.

Azizullah Shaikh, Senior Advocate Supreme Court and M. Riaz, Advocate-on-Record for Petitioner.

Malik Sikandar Khan, A.-G. alongwith Raja Gul Nawaz, Deputy Secretary, Government of Balochistan, Capt. (Retd.) Muhammad Younus Durrani, Director Food, Government of Balochistan for the State.

Date of hearing: 16th September, 1999.

2000 S C M R 160

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

QAMAR ABBAS ---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.326-L of 1999, decided on 16th September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302 (c)/34---Constitution of Pakistan (1973), Art. 185 (3)---Suspension of sentence---Accused had sought suspension of his sentence before the High Court on the ground of his having been pardoned by the legal heirs of the deceased---High Court had rightly declined to grant bail, to accused on the said ground---Accused, in case of a genuine compromise between him and the legal heirs of the deceased, could move the High Court through appropriate proceedings for disposal of his appeal on the basis of alleged pardon---Leave to appeal was declined to accused by Supreme Court with the above observation.

Syed Abul Aasim Jafri, Advocate-on-Record for Petitioner.

2000SCMR 161

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

MUHAMMAD RAFIQUE---Petitioner

versus

IFTIKHAR AHMAD and another---Respondents

Criminal Petition No. 211-L of 1999, decided on 23rd September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 302/34---Constitution of Pakistan (1973), Art. 185 (3)---Cancellation of bail---High Court after tentative appraisal of all the relevant facts had reached the conclusion that the case of accused was that of further inquiry on account of apparent "change of record" and unexplained absconsion of the eye-witnesses---Discretion exercised by High Court in allowing bail to the accused was not fanciful or arbitrary and did not call for any interference---Leave to appeal was declined to complainant by Supreme Court accordingly.

Mian Muhammad Akram Ranjha, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

A.H. Masood, Advocate Supreme Court and Rana Muhammad Arshad Khan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd September, 1999.

20061 S C M R 163

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri arid Abdur Rehman Khan; JJ

RAQIB KHAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Petition No. 26-P of 1999, decided on 5th August, 199

(On appeal from the judgment dated 2-2-1999 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No. 169 of 1996).

(a) Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Related or interested witnesses, credibility of---Neither the relationship of the witnesses with the deceased nor that of the prosecution witnesses inter se, nor in the appropriate cases even their being the interested witnesses, provided an, ultimate guidance for according credence to their testimony---Inherent worth of evidence of a witness ultimately determines his reliability.

Niaz v. State PLD 1960 SC 387; Nazir Hussain v. State PLD 1965 SC 188 and Aslam and another v. The State 1997 SCMR 1284 ref.

(b) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Testimony of eye­witnesses, who were closely related to the deceased and were somehow interested witnesses, had received ample support from the statement of a Police Constable who alongwith a Head. Constable had apprehended the accused with the pistol (crime weapon) from near the place of occurrence---Two empties recovered from the spot which, on examination by the Forensic Science Laboratory, had matched with the crime weapon, had also corroborated the ocular testimony---Eye-witnesses had, therefore, been rightly held as worthy of reliance by the Courts below and the impugned judgment did not suffer from any infirmity whatsoever---knave to appeal was consequently declined to accused by Supreme Court.

Niaz v. State PLD 1960 SC 387; Nazir Hussain v. State PLD 1965 SC 188 and Aslam and another v. The State 1997 SCMR 1284 ref.

(c) Witness----

-----"Interested witness"---Interested witness is the one who has an animus for the false charge.

M. Amin Khattak, Advocate Supreme Court instructed by Fateh Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th August, 1999.

2000 S C M R 167

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munawar Ahmed Mirza

and Abdur Rehman Khan, JJ

SAJID --- Petitioner

versus

THE STATE and another---Respondents

Criminal Petition No.47-P of 1999, decided on 14th July, 1999.

(On appeal from the judgment dated 17-5-1999 of Peshawar High Court, Peshawar passed in Criminal Appeal No.413 of 1998).

Penal Code (KLV of 1860)---

------S. 319---Constitution of Pakistan (1973), Art. 185(3)---Defence counsel in the High Court, after considering the factual position of the case had conceded the charge of "Qatl-i-Khata" having been proved against the accused and, therefore, it could not be argued before the Supreme Court that the evidence on record fell short of proving the guilt---Prosecution evidence and defence evidence had established beyond doubt that the incident had occurred in the manner as alleged by the prosecution---Beside mistake of act or mistake of fact "Qatl-i-Khata" could be committed by rash or negligent act and the act of accused of roaming about with a loaded pistol and embracing the deceased in that position amounted to a negligent act---Impugned judgment did not suffer from any legal flaw---Leave to appeal was refused to accused by Supreme Court accordingly.

Mir Adam Khan, Advocate Supreme Court for Petitioner.

Imtiaz Ali, Additional Advocate-General, N.-W.F.P. for the State.

Respondent No.2 in person (on Court's Notice).

Date of hearing: 14th July, 1999.

2000 S C M R 169

[Supreme Court of Pakistan]

Present: Muhammad Jehangiri and Abdur Rehman Khan, JJ

RAQIB KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 39-P of 1999, decided on 5th August, 1999.

(On appeal from the judgment dated 2-2-1999 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No. 170 of 1996).

West Pakistan Arms Ordinance (XX of 1965)---

----S. 13-E---Constitution of Pakistan (1973), Art. 185(3)---Witnesses of recovery of unlicensed pistol from possession of accused being police officers was not a reasonable ground for disbelieving them, particularly when they had apprehended the accused after giving him a chase for 180 paces in the Cattle Fair while he was running away from the spot after committing the murder with the same---Leave to appeal was refused to accused by Supreme Court accordingly.

M. Amin Khattak, Advocate Supreme Court instructed by Fateh Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 5th August, 1999.

2000SCMR171

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Mamoon Kazi

and Kamal Mansur Alam, JJ

MUHAMMAD DILAWAR KHAN and another---Petitioners

versus

THE STATE---Respondent

Criminal Petition No.48-K of 1999, decided on 27th July, 1999.

(On appeal from the judgment of the High Court of Sindh, dated 1-7-1999 passed in Criminal Appeal No. 17 of 1999).

Penal Code (XLV of 1860)---

----S. 302/34---Constitution of Pakistan (1973), Art. 185(3)---Contention of accused was that statements of the only two eye-witnessess were recorded by the police after a delay of about five months after the date of occurrence; judicial confessions were shown to have been made by the accused persons but admittedly same were recorded ten days after the arrest of accused persons; that statements of accused were not recorded in accordance with the provisions of S.342, Cr. P.C. and the Courts below also failed to examine the defence version in juxtaposition to the prosecution case and that all this had caused prejudice to the accused persons---Leave to appeal was granted by Supreme Court to examine the contentions and also to re-appraise evidence in the case.

Mumtaz Hussain Shah, Advocate Supreme Court and Sardar Muhammad Ishaque, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 27th July, 1999.

2000SCMR172

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Sh. Riaz Ahmed, JJ

MUHAMMAD MUSHTAQ AKBAR ABBASI---Petitioner

versus

HOUSE BUILDING FINANCE CORPORATION through Managing

Director and others---Respondents

Civil Petition for Leave to Appeal No.1221 of 1998, decided on 20th April, 1999.

(On appeal from the judgment/order, dated 24-8-1998, of the Federal Service Tribunal passed in Appeal No.700-R of 1997).

Service Tribunals Act (LXX of 1973)---

----Ss. 6 & 2-A---Constitution of Pakistan (1973), Art. 212 (3)---Compulsory retirement---Appeal---Abatement---Contentions were that petitioners did not file departmental appeal because penalty of compulsory retirement was not provided in the relevant Regulations; that Service Tribunal failed to appreciate the effect of S. 6, Service Tribunals Act, 1973 which provided for abatement of suits, appeals, or applications; that Service Tribunal also failed to appreciate proviso to S. 6, Service Tribunals Act, 1973 which provided that any party to such suit, appeal or application may, within 90 days of the establishment of the appropriate Tribunal, prefer an appeal to such Tribunal in respect of any such matter which was in issue in such suit, appeal or application and that since the Constitutional petition filed by the petitioner had abated in view of the introduction of S. 2-A in the Service Tribunals Act, 1973 the appeal filed by him before the Service Tribunal on 22-9-1997 was within time and could not have been dismissed--­Leave to appeal was granted by Supreme Court to consider the contentions.

Raja Muhammad Bashir, Advocate Supreme Court with M.A. Zaidi, Advocate-onRecord for Petitioner.

H4fiz S.A. Rehman, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 20th April, 1999.

2000SCMR174

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Munir A. Sheikh, JJ

QAISAR AMIN and 3 others---Petitioners

versus

PRESIDENT OF. U. B. L. and others---Respondents

Civil Petitions Nos. 1361, 1362, 1363 and 1368 of 1998, decided on 13th May, 1999.

(On appeal from the judgment, dated 28-9-1998 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 199(P) of 1998, 250(P) of 1998, 252(P) of 1998 and 259(P) of 1998 respectively).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art. 212 (3)---Dismissal from Service---Bank employees---Such employees approached, the Labour Court under S. 25-A, Industrial Relations Ordinance, 1969 but in consequence of insertion of S. 2-A, in the Service Tribunals Act, 1973 their appeals were held to be abated---Employees, however, moved the Service Tribunal where their appeals were also dismissed in liming on the ground of being barred by time--­Validity---Leave to appeal was granted by Supreme Court to the employees to consider question of law of public importance as to whether Service Tribunal justifiably dismissed the appeals filed by the petitioners as barred by time and whether it was not a fit case in which the delay in filing appeals before the Service Tribunal should have been condoned.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 13th May, 1999.

2000 S C M R 176

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Wajihuddin Ahmed, JJ

PAKISTAN AGRICULTURAL RESEARCH COUNCIL-----Petitioner

versus

Dr. Mirza BARJEES BAIG and others---Respondents

Civil Petition for Leave to Appeal No.313 of 1999, decided on 13th May, 1999.

(On appeal from the judgment, dated 1-12-1998 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No.453 of 1998).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Constitutional petition before High Court---Maintainability---Employee of Pakistan Agricultural Research Council was sent abroad for higher studies and was not paid his pay and allowances for the period he remained studying abroad---Contention of employee before High Court in its Constitutional petition was that in similar circumstances, other employees were granted pay and allowances for the period they remained absent by treating their stay abroad and extraordinary leave---High Court directed the Council (petitioner) to pay to the respondent (civil servant) the requisite pay and allowances and other benefits as had been done in other similar cases within seven days from the passing of the order by High Court---Validity---Contention of the Council was that the, controversy raised in the Constitutional petition before High Court related to the terms and conditions of service of the employee, therefore, in. view of S. 2-A, Service Tribunals Act, 1973 High Court had no jurisdiction to grant relief prayed for by the employee--Leave to appeal was granted by Supreme Court to consider the contention of the Council.

Fazal Ellahi Siddiqui, Advocate Supreme Court with Abdul Karim Kundi, Advocate Supreme Court and M.A, Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th May, 1999.

2000SCMR178

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Raja Afrasiab Khan, JJ

MUMTAZ AHMED ---Petitioner

versus

SPEAKER, NATIONAL ASSEMBLY and others ---Respondents

Civil Petition for Leave to Appeal No.327 of 1998, heard on 2nd July, 1998.

(From the judgment/order of Federal Service Tribunal, Islamabad, dated 2-2-1998 in Appeal No.651-R of 1997).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art. 212(3)---Reversion of person working in National Assembly to the parent department---Validity---Contention of petitioner was that order reverting him to the department where he was previously employed was passed on 28-2-1997 which he came to know on 28-4-1997 which he challenged before High Court invoking its Constitutional jurisdiction; that before disposal of the Constitutional petition, petitioner had preferred a departmental appeal on 14-5-1997 and after waiting for the statutory period prescribed under S. 4, Service Tribunals Act, 1973 he filed appeal before the Service Tribunal which was within time; that the Service Tribunals Act, 1973 was amended in June, 1997 and S. 2-A was added to the Act as a result of which petitioner fell within the definition of civil servant and that after the amendment brought in the Service Tribunals Act, 1973 in June, 1997 his appeal before the Service Tribunal was within time and competent ----Supreme Court granted leave to appeal to examine the contentions of the petitioner.

Shahid Iqbal v. Government of Pakistan 1995 SCMR 660 ref.

Muhammad Munir Peiacha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd July, 1998.

2000 S C M R 179

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Mamoon Kazi, JJ

TAWAB KHAN and 8 others---Petitioners

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD.

and others---Respondents

Civil Petitions Nos. 1401, 1458, 1459, 1460, 1461, 1462, 1463, 1464 and 1465 of 1998, decided on 18th June, 1999.

(On appeal from the judgment, dated 28-9-1998 and 29-9-1998 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 257(P), 211(P), 212 (p) , 213 (p) , 214 (p) , 215 (p) , 216 (p) , 217 and 218 (p) respectively).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art. 212(3)---Bar of limitation arising out of insertion of S. 2-A in Service Tribunals Act, 1973---Leave to appeal was granted by Supreme Court to consider whether Service Tribunal was not right in dismissing the appeal as barred by time, after insertion of s. 2A in the Service Tribunals Act, 1973 on the basis of cases decided by Supreme Court in (i) Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; (ii) Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 97; (iii) Muhammad Khalil v. Chairman, C.D.A. and others C.P. No. 1700 of 1998, decided on 18-5-1999 and (iv) Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104.

Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Syed Aftab Ahmad and others, v. K.E.S.C. and others 1999 SCMR 97; Muhammad Khalil v. Chairman, C.D.A. and 2 others C.P. No. 1700 of 1998, decided on 18-5-1999 and Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104 ref.

Anwar H. Mir, Advocate-on-Record for Petitioners.

Hafiz S.A. Rehman, Advocate Supreme Court, Mansoor Ahmad, Deputy Attorney-General and Najam-ul-Hassan, A.G.M. for Respondents.

Date of hearing: 18th June, 1999.

2000SCMR181

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Raja Afrasiab Khan, JJ

Dr. MUHAMMAD ARSLAN former Vice-Chancellor---Petitioner

versus

THE CHANCELLOR, QUAID-E-AZAM UNIVERSITY

and 2 others ---Respondents

Civil Petition No.36 of 1999, decided on 21st June, 1999.

(On appeal from the judgment, dated 16-12-1998, passed by Federal Service Tribunal, Islamabad in Appeal No.381-R of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Quaid-e-Azam University Act (XXVIII of 1973). S. 12(1)--­Constitution of Pakistan (1973), Art. 212(3)---Termination of service--­Petitioner, Chairman of a Department in the University was appointed as Vice-­Chancellor of the University for a statutory period of 4 years with effect from his assuming the charge of the office, by Chancellor of the University who was the President of Pakistan, in exercise of powers vested in him under S.12(1), Quaid-e-Azam University Act, 1973---Appointment order provided that petitioner should complete his tenure, notwithstanding his superannuation earlier than the date of expiry of term of four years---Chancellor of the University issued an order under S. 12(1) of the Act appointing another person as Vice­-Chancelleor of the University for a term of four years with immediate effect, in place of the petitioner, whose services were ordered to be terminated, though the statutory tenure of the petitioner had not yet expired---Petitioner filed a Constitutional petition before High Court which was dismissed by the High Court for lack of jurisdiction holding that the competent forum for seeking remedy was Service-Tribunal, whereupon the petitioner! filed appeal before Service Tribunal, which was dismissed being barred by time ---Validity--­Contentions of the petitioner were that Service Tribunal was wrong in holding that the petitioner had already completed his tenure of four years' service, inasmuch, the petitioner's statutory tenure of office was to expire later, therefore, Chancellor illegally issued order under S. 12(1) of the Act appointing another person as Vice-Chancellor in place of petitioner whose services were terminated without assigning any reason; that Service Tribunal was wrong in dismissing the appeal being time-barred, inasmuch as the petitioner was entitled to avail of period spent bona fide and in good faith, prosecuting proceedings in, and before the High Court under S. 5 read with S. 14, Limitation Act, 1908, that the Service Tribunal passed the order by misconstruing S. 5 read with S. 14, Limitation Act, 1908; that Service Tribunal was wrong in holding that departmental representation under S. 4, Service Tribunals Act, 1973 should have been filed before invoking the jurisdiction of Service Tribunal, inasmuch as qua the period of limitation provided for appeal on the retrospective operation of S. 2-A, Service Tribunals Act, 1973, petitioner was deemed to be a civil servant for availing of remedy in appeal before the Service Tribunal and filing of departmental appeal was not a sine qua non for approaching the Service Tribunal; that after retrospective operation of S. 2-A, Service Tribunals Act, 1973, question of limitation should have been decided by the Service Tribunal in the light of the special circumstances since the provisions of S. 4, Service Tribunals Act, 1973 provided departmental appeal, were applicable to civil servants and not to a person like the petitioner, to invoke the jurisdiction of Service Tribunal by virtue of S. 2-A, Service Tribunals Act, 1973 and that petitioner was not seeking reinstatement but only arrears for the un-expired period of his statutory term of four years---Leave to appeal was granted by Supreme Court to consider the contentions of the petitioner.

Lt.-Col. (Retd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad Civil Appeals Nos.483 and 685 of 1998 ref.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st June, 1999.

2000 S C M R 184

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Mamoon Kazi and Ch. Muhammad Arif, JJ

Dr. Mrs. TALAT KHAN and another---Appellants

versus

Mrs. SARAH SHAFQAT and 6 others---Respondents

Civil Appeal No.900 of 1998, decided on 25th August, 1999.

(On appeal from the judgment of High Court of Sindh, dated 7-5-1995 passed in H.C.A. No.3 of 1994).

(a) Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)---

----S. 39---Interpretation of S. 39, Industrial Development Bank of Pakistan Ordinance, 1961.

(b) Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)---

----S. 39---Enforcement of claim by the Bank---Application in terms of S. 39(1) of the Ordinance is to be filed by the Bank before District Judge concerned--­Where, however, original civil jurisdiction in respect of matter exceeding certain valuation is exercised by the High Court, such application is to be filed before the High Court which does not mean that High Court while hearing the application under S. 39(1) of the Ordinance acts as District Court.

Firdous Trading Corporation v. Japan Cotton and General Trading Company Ltd. PLD 1961 (W.P.) Kar. 565 and Pakistan Fisheries Ltd. v. United Bank Limited PLD 1993 SC 109 distinguished.

Haji Razzaq v. Usman PLD 1975 Kar. 944 ref.

(c) Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)---

----S. 39 (11), (7) & (9)---Law Reforms Ordinance (XII of 1972), S. 3--­Enforcement of claims by the Bank---Appeal against order of Judge of High Court passed on an application under S. 39(7) or (9) of the Ordinance would lie before a Division Bench of the High Court in terms of S. 39 (11) of the Ordinance read with S. 3, Law Reforms Ordinance, 1972.

(d) Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)---

----S. 39---Code of Civil Procedure (Amendment) Ordinance (X of 1980), S.15---Law Reforms Ordinance (XII of 1972), S: 3---Enforcement of claims by the Bank---Auction of property---Order passed by Judge of the High Court in Chambers in original civil jurisdiction accepting the bid offered by the auction-­purchaser being an order passed in the course of execution of a decree was appealable, both in terms of S. 3, Law Reforms Ordinance, 1972 and S. 15, Code of Civil Procedure (Amendment) Ordinance, 1980---Principles.

It is true that the order accepting the offer made by auction-purchaser neither fell under subsection (7) nor subsection (9) of section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961, and therefore, such an order may not be appealable under section 39(11) of the Ordinance. However, this does not mean that against such an order no, appeal at all was competent. Subsection (10) of section 39 provides that the order of attachment or sale of the property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure 1908, for the attachment or sale of property in execution of a decree, as if the Bank were the decree-holder. It is, therefore, quite clear that the order of the Court accepting the offer/bid in respect of the property put to sale by the Court would be regulated in accordance with the provisions of Code of Civil Procedure, 1908. It cannot be disputed that the order accepting the bid of auction-purchaser was passed by the Single Judge of the High Court in exercise of his original civil jurisdiction. The right of appeal against such an order was available under section 15 of Code of Civil Procedure (Amendment) Ordinance, 1980.

The fact that under subsection (11) of section 39 of the Ordinance, an appeal is provided only against an order passed under subsections (7) and (9) of section 39 does not mean that against an order not covered by subsection (7) or subsection (9) no appeal would be competent. There is no provision under the Ordinance which prohibits filing of appeal against the order which is otherwise permissible under any other enactment. In the absence of any specific provision prohibiting filing of appeal against the orders passed under section 39 of the Ordinance, the general provisions contained under Code of Civil Procedure (Amendment) Ordinance, 1980 providing for an appeal from an interlocutory order passed by Single Judge of the High Court would be clearly available to a party. Since the order accepting bid of auction-purchaser was interlocutory, in nature, the appeal was competent before a Bench of the High Court as provided under section 15 of Code of-Civil Procedure'(Amendment) Ordinance, 1980. The contention that as the order was passed by the Judge in Chambers accepting the bid offered by auction-purchaser as a District Judge, the appeal before a Bench of High Court was not maintainable, is not impressive.

The order passed by the Judge in Chambers accepting the bid offered by the auction-purchaser was an order passed in the course of execution of a decree and therefore, both in terms of section 3 of Law Reforms Ordinance, 1972 and section 15 of Code of Civil Procedure (Amendment) Ordinance, 1980 an appeal against such an order was maintainable.

Sharifuddin Pirzada, Senior Advocate Supreme Court and Anwar Mansoor, Advocate Supreme Court for Appellants.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Kadir Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No. 1.

Afsar Abidi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-­Record for Respondents Nos.6 and 7.

Dates of hearings: 31st May; 2nd and 3rd June, 1999.

2000 S C M R 201

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Wajihuddin Ahmed, JJ

Messrs AMIN TEXTILE MILLS (PVT.) LTD. ---Petitioner

versus

COMMISSIONER OF INCOME-TAX and 2 others---Respondents

Civil Petition for Leave to Appeal No.92-K of 1999, decided on 11th May, 1999.

(On appeal from the judgment of a learned Division Bench of the High Court of Sindh at Karachi, dated 8-12-1998, in Constitutional Petition No.D­1353 of 1997).

(a) Income Tax Ordinance (XXXI of 1979)----

----S. 65---Additional assessment---Notice---If Competent Authority had applied its independent mind to the facts of the case before issuing notice under S. 65, Income Tax Ordinance, 1979, issuance of said notice would not be invalid or void.

(b) Income Tax Ordinance (XXXI of 1979)----

----S. 65---Constitution of Pakistan (1973), Art. 199---Constitutional petition before High Court---Maintainability---Issuance of notice under S. 65, Income Tax Ordinance, 1979---Challenge to validity ---Assessee in the first instance was to approach the hierarchy of the forums provided for under the Income Tax Ordinance, 1979, instead of filing a Constitutional petition challenging the order of Income Tax Officer---Tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court was deprecated---Supreme Court, while dismissing the petition for leave to appeal against the issuance of notice under S. 65, Income Tax Ordinance, 1979 observed that petitioner would be at liberty to raise whatever pleas available to them against the impugned notice before the Income Tax Authorities and any objection raised by the petitioners shall be duly considered and disposed of in accordance with law before any adverse order was passed by the concerned Authority without prejudice to any observations made in the judgment of High Court as well as in the order passed by the Supreme Court---Imposition of cost to the petitioner by the High Court was also set aside by Supreme Court.

Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 ref:

Rehan Hasan Naqvi, Advocate Supreme Court instructed by M. Shabbir Ghaury, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th May, 1999.

2000SCMR204

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ

MUHAMMAD YOUSAF---Petitioner

versus

MUNAWAR HUSSAIN and 5 others---Respondents

Civil Petitions for Leave to Appeal Nos.847-L and 857-L of 1999, decided on 14th July, 1999.

(On appeal against the judgment dated 14-4-1999 of the Lahore High Court, Lahore in C.R. No.2621 of 1995 and S.A.O. No.203 of 1995).

(a) Transfer of Property Act (IV of 1882)----

----S. 53-A---Scope of S.53-A, Transfer of Property Act, 1882---Part performance of contract---Provisions of S.53-A, Transfer of Property Act, 1882, would enable transferee to protect his possession over property subject to fulfilment of two conditions; firstly, existence of agreement to transfer said property and secondly that transferee had been put in possession of said property in part performance of the agreement---Provisions of S.53-A, Transfer of Property Act, 1882 was shield and could not be used as a sword.

Dr. Faqir Muhammad v. Maj. Amir Muhammad and others 1982 SCMR 1178; Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others PLD 1972 Kar. 103; Habibur Rehman and another v. Mst. Wahidania and others PLD 1984 SC 424 and Hakim Ali v. Sakhi Muhammad 1996 SCMR 354 ref.

(b) Transfer of Property Act (IV of 1882)-----

----S.53-A---Specific Relief Act (I of 1877), Ss. 12 & 42---Agreement to sell property--Nature---Agreement to sell property, could not confer any title on vendee because same was not a title deed and such agreement would not confer any proprietary right on vendee- --Declaratory decree as envisaged by S.42, Specific Relief Act, 1877 could not be awarded to vendee because declaration could only be given in respect of a legal right of character---Only right arising out of an agreement to sell was to seek its specific performance and in case vendee had been put in possession, same was protected under S.53-A, Transfer of Property Act, 1882.

Muhammad Riaz Lone, Advocate Supreme Court for Petitioner.

Abdul Wahid Chaudhry, Advocate Supreme Court and M. Aslam Chaudhary Advocate-on-Record for Respondents.

Date of hearing: 14th July, 1999.

2000 S C M R 207

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

MUHAMMAD IRFAN---Petitioner

versus

MUHAMMAD ZAHID HUSSAIN ANJUM---Respondent

Civil Petition No. 1392-L of 1999, decided on 22nd September, 1999.

(On appeal from the judgment dated 6-4-1999 of the Lahore High Court, Lahore in S.A.O. No.46 of 1999).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.5-A---Constitution of Pakistan (1973), Art.185(3)---Non-payment of rent at increased rate of 25 % ---Non-service of notice---Effect---Service of notice under S.5-A, West Pakistan Urban Rent Restriction Ordinance, 1959 by a landlord to a tenant for statutory increase of rent at the rate of 25 % was not condition prescribed to invoke jurisdiction of Rent Controller---Increase of 25 % in rent under provisions of S.5-A, West Pakistan Urban Rent Restriction Ordinance, 1959 would become due on expiry of three years and would be deemed to be a rent due---Duty was enjoined upon Rent Controller to examine in each case whether default in payment of statutory increased rent was wilful or otherwise.

Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24; Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751; Haji Muhammad Ibrahim v. Haji Abdus Salam Bhatti PLD 1996 Lah. 308; Mst. Mumtaz Begum v. Mst. Wazir Begum PLD 1997 Lah. 99; Sh. Barkat Ali Cycle Works, Gulberg-11, Lahore v. Haji Waheed-ud-Din, Gulberg-11, Lahore PLD 1998 Lah. 196 and National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh, Naseem-ud-Din and 4 others PLD 1997 SC 564 ref.

M. Hussain Awan, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd September, 1999

2000SCMR212

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Kamal Mansur Alam, JJ

ABBAS ---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal- No.357-L of 1999, decided on 13th October, 1999.

(On appeal from the judgment/order dated 30-6-1999 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No. 641-B of 1999).

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), S. 302/109/148/149/427--­Constitution of Pakistan (1973), Art. 185(3)---Grant of bail on medical ground---High Court had not granted bail to accused despite he was suffering from "hepatitis-C" (viral infection) as per report of Medical Board--­High Court did not consider accused entitled to bail as in the opinion of Medical Board, though disease of accused was infectious but it did not spread or infect others by the casual contact---Supreme Court, however, in view of serious nature of ailment of the accused, admitted accused to bail converting petition into appeal.

Shahid Hussain Kadri, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner.

Arshad Ali, Advocate Supreme Court for the State.

Date of hearing: 13th October, 1999.

2000SCMR214

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ

Master NAZEER AHMED ---Petitioner

versus

MUHAMMAD JAMIL---Respondent

Criminal Petition for Leave to Appeal No.85-L of 1998, decided on 12th April, 1999.

(On appeal against the judgment and order dated 18-9-1997 of the Lahore High Court, Lahore in C.R. No.2438 of 1996).

Constitution of Pakistan (1973)---

---Art, 185(3)---Leave to appeal---High Court in its judgment had observed that concurrent findings arrived at by Courts below were not open to exception because said findings were not based upon non-reading or misreading of evidence on record---Observation of High Court based on proper appreciation of evidence on record could not be interfered with by Supreme Court.

Rana Muhammad Sarwar, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2000SCMR216

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Mamoon Kazi, JJ

MANZOOR HUSSAIN SHAH---Petitioner

versus

FAZAL DAD and another---Respondents

Civil Petition No. 1059-L of 1997, decided on 29th June, 1999.

(On appeal from the order/judgment dated 20-5-1997 of the Lahore High Court, Lahore, passed in C.R. No.2461 of 1996).

Punjab Pre-emption Act (IX of 1991)--

----S. 13---Constitution of Pakistan (1973), Art. 199---Suit for pre­emption ---Making of "Talab-i-Muwathibat" and "Talb-e-Ishhad"---Trial Court as well as Appellate Court below concurrently found that pre-emptor had not made "Talb-i-Muwathiwat" and "Talb-e-Ishhad" in accordance with S. 13, Punjab Pre-emption Act, 1991 and due to that omission right of pre­emption vesting in pre-emptor, stood extinguished---Such concurrent findings of Courts below which were upheld by High Court being based on record, could not be interfered with by Supreme Court.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2000SCMR219

[Supreme Court of Pakistan]

Present: Khulil-ur-Rehman Khan and Sh. Ijaz Nisar, JJ

HASHAM and others---Petitioners

versus

AMEER---Respondent

Civil Petition for Leave to Appeal No. 1286-L of 1997, decided on 9th April, 1999.

(On appeal from the judgment/order dated 11-7-1997 of the Lahore High Court, Lahore passed in R.S.A. No.266 of 1969).

Canal and Drainage Act (VIII of 1873)---

----S. 68---Constitution of Pakistan (1973), Art. 185(3)---Sanction of "Warabandi"---Jurisdiction of Divisional Canal Officer---Trial Court in view of Revenue Manual of the Irrigation Department and other relevant factors, came to the conclusion that since a dispute had arisen among the shareholders of the outlet of watercourse in dispute, Divisional Canal Officer was competent to amend "Warabandi" under S. 68, Canal and Drainage Act, 1873 and found respondents entitled to the Nikal Water---High Court after taking stock of all relevant factors upheld judgment of Trial Court--­Petitioner having failed to point out any illegality committed by Trial Court in approving amended "Warabandi" by Divisional Canal Officer under S. 68 Canal and Drainage Act, 1873, judgment of High Court upholding decision of Trial Court could not be interfered with by Supreme Court.

C.A. Rehman, Advocate Supreme Court with Hameed Aslam Qureshi, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondent.

2000 S C M R 222

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ

MUHAMMAD MEHDI---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.58-L of 1998, decided on 13th April, 1999.

(On appeal against the judgment and order dated 23-10-1997 of the Lahore High Court, Lahore in C.R. No.442 of 1989).

Prevention of Corruption Act (II of 1947)-----

---S. 5(2)---Penal Code (XLV of 1860), S. 161---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Accused denied to have accepted money as bribe from complainant, but said money was taken out by Magistrate from pocket of accused who tried to run away from premises of Courts and was apprehended---Such conduct of accused had gone a long way as a pointer towards his guilt---Passing of tainted currency notes was noted by Magistrate who saw the transaction while standing in the veranda, outside the Court----Prosecution, in circumstances, had established its case against accused beyond any shadow of doubt---High Court was justified in taking a lenient view on account of protracted trial which accused faced for more than eleven years and considering sentence already undergone for about a month to be sufficient to meet the ends of justice---Conviction of accused being justified on record of case, Supreme Court denied to interfere in judgment of High Court in circumstances.

Ch. Muhammad Nasrullah Warraich, Advocate Supreme Court for Petitioner.

Nemo for the State.

2000 S C M R 224

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

DISTRICT HOUSING COMMITTEE, HOUSING AND PHYSICAL

PLANNING DEPARTMENT, DISTRICT BHAKKAR through

Secretary and another---Petitioners

versus

RAB NAWAZ AWAN, ADVOCATE and another---Respondents

Civil Petition for Leave to Appeal No.632-L of 1999, decided on 9th September, 1999.

(On appeal from the judgment/order dated 24-11-1998 passed by the Lahore High Court, Lahore in W. P. No. 13031 of 1997).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal--.Delay in filing petition--­Condonation---Powers of Supreme Court---Delay of 76 days in filing petition was sought to be condoned on ground that Provincial Secretary moved the Solicitor of Government for obtaining necessary sanction for which some time was consumed and Government had a very good case---Such argument did not constitute valid ground for condonation of delay---Government was not entitled to any preferential treatment in matter of limitation---Contention that depending upon facts and circumstances of case, Supreme Court was competent to condone delay, was repelled observing that Supreme Court, no doubt, was not powerless to condone delay in appropriate cases, but a good case on merits would not per se constitute a valid ground for condonation of delay.

State v. Nazir Ahmed 1999 SAAR 610 ref.

Ghulam Haider Alghazali, Additional Advocate-General, Punjab and Rao Muhammad Yousaf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 9th September, 1999.

2000 S C M R 226

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ., Munawar Ahmed Mirza

and Sh. Riaz Ahmed, JJ

Qari ABDUL REHMAN and 6 others---Appellants

versus

JAMALUDDIN and another---Respondents

Civil Appeals Nos.75-Q and 76-Q of 1994, decided on 20th July, 1999.

(On appeal against the judgment dated 31-7-1994 of the High Court of Balochistan, Quetta passed in F.A.Os. Nos.93 and 98 of 1993).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Constitution of Pakistan (1973), Art 185---Non-compliance of tentative rent order---Striking off defence---Tenants were directed to deposit rent under S. 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959 till disposal of appeal---Tenants continued depositing rent in name of original landlord up to certain period but thereafter started depositing rent in the name of person other than the landlord---Such deposit of rent could not be a proper deposit in terms of S. 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959---Tenants having failed to comply with tentative rent order, their defence was rightly struck off and they were directed to be ejected from premises in dispute.

PLD 1980 SC 9 and 1991 SCMR 429 ref.

Tariq Mahmood, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Appellants.

M.K.N. Kohli, Advocate-on-Record for Respondent No.2 (in C.A. No.75-Q of 1994).

M.K.N. Kohli, Advocate-on-Record for Respondent No.l (in C.A. No. 76-Q of 1994).

Date of hearing: 20th July, 1999.

2000SCMR230

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza

and Kamal Mansur Alam, JJ

MUHAMAMD KAZIM and another---Petitioners

versus

PROVINCE OF BALOCHSITAN and others---Respondents

Civil Petitions Nos.260-Q and 261-Q of 1997, decided on 1-5th September, 1999.

(On appeal from the judgment dated 15-1,0-1997 of the High Court of Balochistan passed in C.Rev. No.264 of 1996).

Civil Procedure Code (V of 1908)---

----S.12(2) & O.I,R.10---Constitution of Pakistan (1973), Art. 185(3)--­Application for setting aside decree on plea of fraud or misrepresentation--­Impleading of party---Suit filed by private respondents against Government having been decreed, Government filed appeal against judgment and decree of Trial Court---Petitioners, during pendency of said appeal filed application for impleading them as party, but their application was dismissed---No appeal/revision or other proceedings were taken by petitioners for challenging the order dismissing their said application---Petitioners, after dismissal of appeal filed by Government, filed application under S.12(2), C.P.C. on ground that respondents had obtained judgment and decree by committing fraud and misrepresentation which application was concurrently dismissed by Courts below---Validity---Litigation pending between Government and private respondents was in the knowledge of petitioners because when appeal filed by Government against private respondents was being heard, petitioner had filed application under 0.1, R.10, C.P.C. for being joined as party, but that application was finally dismissed---Petitioners were estopped to file application under S.12(2), C.P.C., by not challenging orders dismissing application filed by petitioners under 0.1, R.10, C.P.C. which had attained finality---Petition for leave to appeal was dismissed holding that High Court had rightly upheld concurrent orders of Courts below dismissing application filed by petitioners under S.12(2), C.P.C.

Muhammad Riaz Ahmed, Advocate-on-Record for Petitioners (in both the Petitions).

Nemo for Respondents.

Date of hearing: 15th September, 1999.

2000SCMR234

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

KHIZAR HAYAT KHAN---Petitioner

versus

ZILA COUNCIL, FAISALABAD through Chairman---Respondent

Civil Petition for Leave to Appeal No. 1080-L of 1999, decided on 7th September, 1999.

On appeal from the judgment/order dated 8-6-1999 of the Lahore High Court, Lahore passed in C.R. No.98 of 1996).

Specific Relief Act (1 of 1877)---

----S.42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Decree passed in suit by Trial Court and affirmed by Appellate Court below was modified by High Court in revision taking into consideration facts of the case---Question of fact having been determined by High Court on basis of evidence on record and by considering facts of the case, Supreme Court declined interference.

Dr. M. Mohy-ud-Din Qazi, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 7th September, 1999.

2000SCMR236

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. CJ. and Sh. Ijaz Nisar, J

Mst. BASHIRAN BIBI---Petitioner

versus

TOWN COMMITTEE, AMINABAD---Respondent

Civil Petition No. 1294-L of 1999, decided on 13th September, 1999.

(On appeal from the judgment dated 8-7-1999 of the Lahore High Court, Lahore in C. M. No. 1758 of 1998 in I.-C. A. No. 123 of 1989).

Civil Procedure Code (V of 1908)---

----O. XLI, R.19---Law Reforms Ordinance (XII of 1972), S.3--­Constitution of Pakistan (1973), Art.185(3)---Dismissal of Intra-Court Appeal for non-prosecution ---Restoration---Intra-Court Appeal dismissed for non-prosecution, was restored/re-admitted by Intra-Court Appeal Bench after hearing the parties---Petitioner who was respondent in the appeal had sought leave to appeal against restoration order---Appeal having been restored/re­admitted by Intra-Court Appeal Bench on valid ground, order of restoration/re-admission was justified and could not be interfered with by Supreme Court.

Abdul Aziz Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 13th September, 1999.

2000SCMR238

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mina

and Kamal Mansur Alam, JJ

Haji MUHAMMAD ASHRAF---Petitioner

versus

The DISTRICT MAGISTRATE; QUETTA and 3 others---Respondents

Civil Petition No.49-Q of 1997, decided on 13th September, 1999.

(On appeal from the judgment dated 23-2-1997 of the High Court of Balochistan in Constitutional Petition No.286 of 1994).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Constitution of Pakistan (1973), Arts. 185(3) & 199---Suit for declaration and permanent injunction--.-Petitioner apprehending eviction from plot of land in dispute, had already filed suit for declaration and permanent injunction restraining respondent from dispossessing him from the plot and had also obtained interim orders from Court which was still operative---Petitioner pending said suit filed Constitutional petition in the High Court in the same matter contending that suit could not be considered as adequate remedy and sought exercise of Constitutional jurisdiction by High Court---High Court dismissed Constitutional petition, holding that petitioner having already invoked jurisdiction of Civil Court in respect of same cause of action and on same facts with almost similar prayer, proceedings before High Court by way of Constitutional petition were not maintainable---Validity--Even if petitioner had been allegedly forcibly dispossessed from plot in dispute, he could have conveniently approached Civil Court for appropriate action---Constitutional petition was rightly dismissed by High Court and Order of High Court could not be interfered with.

Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359 and Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710 ref.

Syed Ayaz Zahoor, Advocate Supreme Court and Mehta W.N. Kohli, Advocate-on-Record for Petitioners.

Malik Sikandar Khan, Advocate-General, Balochistan for Respondents Nos. 1, 2 and 4.

M. Shakeel Ahmed, Advocate Supreme Court for Respondent No.3.

Date of hearing: 13th September, 1999.

2000 S C M R 242

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza

and Kamal Mansur Alam, JJ

SABAHAT HAMEED---Petitioner

versus

SELECTION COMMITTEE FOR ADMISSION IN BOLAN MEDICAL

COLLEGE, through Chairman-cum-Chairman, Balochistan Public Service Commission, Quetta and 3 others---Respondents

Civil Appeal No.174-Q and Civil Petition for Leave to Appeal No.294-Q of 1999, decided on 16th September, 1999.

(On appeal from the Order dated 19-8-1999 passed by the High Court of Balochistan, Quetta in C.P. No.716 of 1999).

Prospectus of Bolan Medical College, 1997-98----

----Paras. 22 & 31---Constitution of Pakistan (1973), Art. 185(3)--­Educational institution---Admission in. Medical College---Candidate's application for admission in M.B.B.S. Class against reserved, seat for "Kohlu District", Quetta, Balochistan, was rejected by Selection Committee under paras. 22 & 31 of Prospectus of Bolan Medical College, Quetta (1997-98) on ground that candidate had also applied for admission in "King Edward Medical College, Lahore", as a candidate from "Rajanpur District", Punjab---Constitutional petition filed against order of Selection Committee was dismissed by High Court----No element of mis-description in application filed by candidate for admission in M.B.,B.S. Class had been pointed out by the Authority---Nothing was on record to show that Candidate possessed domicile certificate other than "Kohlu District" on basis of which petitioner had filed said application against reserved seat---Decision of Selection Committee, rejecting application for admission of petitioner in 1st Year Class of M.B.,B.S. on basis of paras. 22 & 31 of Prospectus of Bolan Medical College (1997-98) was erroneous and not sustainable---Supreme Court setting aside judgment of High Court whereby decision of Selection Committee was upheld, remanded case to Selection Committee to decide afresh after hearing parties and to determine entitlement of petitioner for admission in 1st Year of M.B.,B.S. Class in Bolan Medical College.

Petitioner in person.

Syed Ayaz Zahoor, Advocate Supreme Court for Respondents Nos. l and 2.

Malik Sikandar Khan, Advocate-General, Balochistan for Respondent No. 3.

S.A.M. Qadri, Advocate-on-Record for Respondent No.4.

Date of hearing: 16th September, 1999.

2000 S C M R 247

[Supreme Court of Pakistan].

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

GOVERNMENT OF THE PUNJAB through Secretary Food, Lahore and another---Petitioners

versus

Messrs HABIB BANK LTD. ---Respondent

Civil Petition No.603-L of 1999, decided on 16th September, 1999.

(On appeal from the judgment dated 12-2-1999 of the Lahore High Court, Lahore in S.A. O. No. 17 of 1999).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(3) & (6)---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Non-compliance of tentative rent order---Striking off defence---Rent Controller and Appellate Authorities had concurrently struck off defence of tenant for non-compliance of tentative rent order whereby tenant was directed to deposit future rent of premises from specified date---Concurrent findings of fact of Authorities below with regard to default in payment of rent by tenant based on record, could not be interfered with by Supreme Court---Petition for leave to appeal which otherwise was barred by four days was dismissed in absence of sufficient ground to condone said delay.

Qadir Zaman Shah Temuri, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 16th September 1999.

2000 S C M R 250

[Supreme Court of Pakistan]

Present: Saiduzzasman Siddiqui, C.J., Irshad Hasan Khan, Raja Afrasiab Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid, Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

Engr. IQBAL ZAFAR JHAGRA and others---Appellants

versus

KHALILUR REHMAN and 4 others---Respondents

Civil Appeals Nos. 659, 660, 684, 685 and 1121 of 1997, decided on 8th October, 1999.

(On appeal from the judgment of Election Tribunal, Peshawar, dated 23-6-1997 passed in E.Ps. Nos. 2, 3, and 1 of 1997 respectively).

Per Saiduzzaman Siddiqui, C.J.---

(a) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Preamble---Legislative history examined.

(b) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Preamble---Revival of the Constitution of 1973 Order (P.O. 12 of 1985), Preamble---Constitution of Pakistan (1973), Arts.270-A(3) & 59---Houses of Parliament and Provincial Assemblies (Election) Order, 1977 was not a one time law which became redundant or lost its efficacy after the revival of Constitution . but remained in the field as an existing law which governed the elections of two Houses of Parliament and the Provincial Assemblies.

(c) Constitution of Pakistan (1973)---

----Arts. 59(1)(d) & 62(i)---Houses of Parliament and Provincial Assemblies (Election) Order (P.O. 5 of 1977), Art.5(1)(a)(iv)---Election of Senate--­"Technocrats", "Professionals" and "Ulema" occurring in Art.59(1)(d) of the Constitution of Pakistan---Qualification---Explanation to Art.5(1)(a)(iv) of Houses of Parliament and Provincial Assemblies (Election) Order, 1977 which defines "Technocrats", "Professionals" end "Ulema" is to be read as a provision laying down the qualifications of Technocrats, Professionals and Ulema.

(d) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Preamble---Constitution of Pakistan (1973), Art.270-A(3)---Houses of Parliament and Provincial Assemblies (Election) Order, 1977 is an existing law within the meaning of Art.270-A(3) of the Constitution of Pakistan (1973).

Per Munawar Ahmed Mirza, J.--

Per Saiduzzaman Siddiqui, C.J.--

(e) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Art.5(1)(c)(i)(ii) & (iii)---Constitution of Pakistan (1973), Art.59(3)(a)(b)(c) & (d)---Term of office of members of Senate---Term of office of Member of Senate given in Art.5(1)(c)(i)(ii) & (iii) of Houses of Parliament and Provincial Assemblies (Election) Order, 1977 was to be ignored being in conflict with the term of office mentioned in Art.59(3)(a)(b)(c) & (d) of the Constitution---Whole of Art. 5(1)(c)(i)(ii)(iii) of Houses of Parliament and Provincial Assemblies (Election) Order, 1977, in view of such conflict, could not be struck down.

(f) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Art. 5(1)(a), Expln.---Constitution of Pakistan (1973), Arts.59, 62(i) & 270-A(3)---Qualification for membership of Senate---Omission to incorporate Expln. to Art.5(1)(a) of Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (an existing law) into Art.59 of the Constitution could not be treated as an inconsistency as Art.62(i) of the Constitution itself had provided that additional qualifications of the members of Parliament could be prescribed through an Act of the Parliament.

(g) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Preamble---Constitution of Pakistan (1973), Art.270-A(3), Expln.--­"Competent Authority"---Definition---Words "Competent Authority" having been defined in the Expln. to Art.270-A(3) of the Constitution, there remained no logical reason to restrict said definition only to cl.(3) of Art.270-A of the Constitution and not to apply to other clauses of -the said Article---In view of definition of words "Competent Authority" given in Expln. to Art.270(3) of the Constitution, Houses of Parliament and Provincial Assemblies (Election) Order, 1977 was to be treated at par with an Act of Parliament.

(h) Constitution of Pakistan (1973)---

----Art.62---Houses of Parliament and Provincial Assemblies (Election) Order (P.0.5 of 1977), Art.5(1)(c), Expln.---Qualifications of members of Senate for election of "Technocrats"; "Professionals" and "Ulema"---Before a person is held eligible to contest election of Senate on the seats reserved for "Ulema", "Technocrats" and "Professionals", he must show that he possessed the qualifications mentioned in Expln. to Art.5(1)(c) of Houses of Parliament and Provincial Assemblies (Election) Order, 1977.

(i) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Art. -"Technocrat" and "Professional" -Definition---Interpretation.

Ihsanul Haq Piracha v Wasim Sajjad PLD 1986 SC 200; Aon Muhammad Khan v. Saeed Qadir PLD 1987 SC 490; Farooq Hassan v. Mumtaz Ahmad Khan PLD 1988 SC 237 and Sheikh Rafique Ahmed v. Zia Shahid 1999 SCMR 573 ref.

(j) Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977)---

----Art.5, Expln.---Election to Senate--- "Technocrat" fulfilling the qualifications of professional illustrated.

"Technocrat" as defined in the Explanation to Article 5 of Houses of Parliament and Provincial Assembles (Election) Order, 1977 means a professionally competent person whose professional competence has been recognised either nationally or internationally and he has at least fifteen years of experience and expertise at a level which may not be the top position but should be above the ordinary level. Therefore, a person may not possess a professional qualification but he may still be covered by the above definition of the "Technocrat" on the basis of his professional competence and expertise in any specialised field and he fulfils other conditions mentioned in the definition. As against this a "Professional" as defined in the Explanation (i), must possess a 'professional qualification which is recognised either nationally or internationally; (ii) is a man of distinction; (iii) has practical experience in some specialised area of knowledge at a high level; (iv) and has been practising in his specialisation, making it a main source of his vocaiion or employment. In the present case, the person undoubtedly held a Bachelor degree in Mechanical Engineering from a recognised University. He was registered as a 'professional engineer' with Pakistan Engineering Council, a statutory body. He remained as the Managing Director of a Private Limited Company which was incorporated in the year 1982-83 and was also registered as No Limit Construction Company with the Pakistan Engineering Council, until 1-12-1996. He was also accorded life membership of Pakistan Engineering Council. No doubt he started his career as an ordinary Site Engineer with a private construction company in 1970, but within 4 years he joined a well-known nationally and internationally recognised construction company, National Construction ,Company of Pakistan Ltd., as Senior Engineer. In next two years time he joined in a senior position, Saudi Research and Development Corporation (REDEC) and worked with them up to 1981. He was associated with a number of prestigious building projects in Saudi Arabia in a senior position. After-his release from Saudi Research and Development Corporation h0 set up his own construction company which was registered as "No Limit Construction Company" and, he remained its Chief Executive until December, 1996. From the above narrated facts, it could safely be said that he had professional qualification, which was nationally recognised. He had acquired a distinctive position in his profession. He had also acquired practical experience at a reasonably high level in the specialised area and he practised his specialisation and adopted it as his principal vocation and calling. The finding of the Election Tribunal that the element of recognition of professional competence in the field of Engineering was altogether missing, appeared to be the result of non-­consideration of evidence on record which fully established that he was not only registered as a "Professional" with Pakistan Engineering Council, which was a statutory body, but he was also allowed life membership of the said Council which amounted national recognition of his status in engineering. On an overall consideration of the qualifications and experiences, he fulfilled the qualifications of a "Professional" when he was seeking election to the reserved seats in the Senate.

(k) Senate (Election) Act (LI of 1975)---

----Ss. 12(2), 34 & 36 to 44---Senate (Election) Rules, 1975, R.5---Election to Senate---Valid nomination and requisite qualification of candidate to contest election---Rejection of nomination papers by Returning Officer--­Adjudication---Election petition---Appeal to Chief Election Commissioner--­Nature of proceedings at both the forums---Decision by an Election Tribunal after a trial of election petition on the issue whether the candidate was validly nominated or had the requisite qualification to contest the election, would have precedence over the decision of Chief Election Commissioner on the same issue made on an appeal directed against the order of rejection of the nomination papers of the candidate by the Returning Officer---Chief Election Commissioner's decision reversing the order of Returning Officer and accepting the nomination paper, therefore, would not stand in the way of Election Tribunal to adjudicate upon the question of nomination of the candidate.

The nomination papers of a candidate under Senate (Election) Act, 1975 are scrutinized by the Returning Officer under clause (2) of section 13 of the Act. In case of rejection of nomination papers by the Returning Officer, an appeal against the order lies within Z days of the scrutiny to the Commissioner and the order passed by the Commissioner on such an appeal is deemed to be the final. Rule 5 of Senate (Election) Rules, 1975 provides summary disposal of such appeal by the Commissioner. An election petition against a returned candidate is filed under section 34 of the Act and the grounds for declaring the election of a returned candidate as invalid are given in section 49 of the Act. The procedure for trial of election petition is laid down under sections 36 to 44 of the Act. A careful consideration of the above provisions of the Act will show that the decision of Chief Election Commissioner in an appeal against the decision of Returning Officer rejecting the nomination papers of a candidate is of summary nature whereas the conduct of a petition after the election of a candidate on the ground of disqualification is full-fledged trial. It is, therefore, quite clear that although the decision with regard to validity of nomination of a candidate may be subject-matter of decision both before the Chief Election Commissioner as well as Election Tribunal, but the manner of adjudication in both the cases is different. In the former case, the adjudication by the Chief Election Commissioner on the appeal against the rejection of nomination paper by the Returning Officer, is summary in nature after holding such inquiry as the Chief Election Commissioner may deem fit while in the latter case, the decision on the election petition filed against the successful candidate is a full-fledged trial. Therefore, the decision by an Election Tribunal, after a trial of election petition on the issue whether the candidate was validly nominated or had the requisite qualification to contest the election, will have precedence over the decision of Chief Election Commissioner on the same issue made in an appeal directed against the order of rejection of the nomination paper of the candidate by the Returning Officer.

In view of the abovestated legal position, the decision of Chief Election Commissioner reversing the order of Returning Officer and accepting the nomination papers would not stand in the way of Election Tribunal to adjudicate upon the question of nomination.

Mukhtar Hussain Shah v. Wasim Sajjad PLD 1986 SC 178 and Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736 ref.

(l) Senate (Election) Rules, 1975---

----R. 7---Disqualification of a candidate is to be tried as a preliminary issue in an election petition.

(m) Houses of Parliament and Provincial .Assemblies (Election) Order (P.O.5 of 1977)---

----Art.5---Election to Senate---"Professional"---Burden to prove that candidate was a professional being an Advocate and that he had attained the requisite level of skill in his profession, was entirely on the candidate--­Principles---Failure of candidate to establish that he was "professional" as defined in Art.5, Houses of Parliament and Provincial Assemblies Order, 1977, would render the candidate to be disqualified to contest election against the reserved seat for professional.

(n) Senate (Election) Act (LI of 1975)---

----S. 36---Civil Procedure Code (V of 1908), Os. VI & XV---Contents of petition---Non-verification of petition in accordance with law---Effect--­Petition filed by candidate, though mentioned that same was on oath but the oath was neither verified nor attested by a person authorised to administer oath---Requirements of S.36, Senate (Election) Act, 1975, held, were not complied with in circumstances.

(o) Senate (Election) Act (LI of 1975)---

----S. 36---Contents of petition---Failure of petitioner to file some Annexures alongwith petition which were not verified on oath was not fatal to the prosecution of the petition.

S.M. Ayub v. Yousaf Shah PLD 1967 SC 486 fol.

(p) Senate (Election) Act (LI of 1975)---

----S. 49---Declaration of election as void by Election Tribunal on the ground of disqualification of candidate---Where the Election Tribunal finds that a candidate was disqualified but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of such disqualification, votes secured by such candidate cannot simply be thrown away so that the candidate securing next highest number of votes be declared elected in his place---Election, therefore, as a whole was set aside and re­election ordered in circumstances.

(q) Words and phrases---

---Recognised "---Meaning.

Black's Law Dictionary ref.

(r) Words and phrases---

----"Final"--Meaning.

Black's Law Dictionary ref.

(s) Words and phrases---

------Annex"----Meaning.

(t) Words and phrases---

------Technocrat and "Professional "---Meaning.

Law Lexicon ref.

Shehzad Jehangir, Senior Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record for Appellant (in C.A. No.659 of 1997).

Fakharuddin G. Ebrahim, Senior Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Respondent No. 1 (in C.A. No.659 of 1997).

Abdul Karim Khan Kundi, Advocate Supreme Court and Raja Ibrahim Satti, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 659 of 1997).

Iftikhar Hussain Gillani, Advocate Supreme Court (in person) and Mehr Khan Malik, Advocate-on-Record for Respondent No. 3 (in C.A. No. 659 of 1997).

Haji M.A. Qayyum Mazhar, Advocate-on-Record (absent) for Respondent No.5 (in C.A. No.659 of 1997).

Tanvir Bashir Ansari, Deputy Attorney-General and Ch. Akhtar Ali, Advocate-on-Record (on Court's Notice) (in all Cases).

Abdul Karim Khan Kundi, Advocate Supreme Court and Raja Ibrahim Satti, Advocate Supreme Court and Anwar H. Mir, Advocate-on­-Record for Appellant (in C.A. No.660 of 1997).

Fakharuddin G. Ebrahim, Senior Advocate Supreme Court for Respondent No 1 (in C.A. No.660 of 1997).

Iftikhar Hussain Gillani, Advocate Supreme Court (in person) for Respondent No. 2 (in C.A. No.660 of 1997).

Shehzad Jehangir, Senior Advocate Supreme Court for Respondent No.4 (in C.A. No.660 of 1997).

Fakharuddin G. Ebrahim, Senior Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Appellant (in C.As. Nos.684 and 685 of 1997).

Shehzad Jehangir, Senior Advocate Supreme Court and M. Ibrahim Satti, Advocate Supreme Court for Respondents Nos. 1 and 2 respectively (in C.A. No.684 of 1997).

Raja M. Ibrahim Satti, Advocate Supreme Court and Abdul Karim. Khan Kundi, Advocate Supreme Court for Respondent No.2 (in C.A. No.684) and for Respondent No. l (in C.A. No.685 of 1997).

Iftikhar Hussain Gillani, Advocate Supreme Court (in person) for Respondent No. 3 (in C.As. Nos.684 and 685 of 1997).

Syed Iftikhar Hussain Gillani, Advocate Supreme Court (in person), Fakharuddin G. Ebrahim, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (in C.A. No. 1121 of 1997).

Raja M. Ibrahim Satti, Advocate Supreme Court and Abdul Karim Khan Kundi, Advocate Supreme Court and Shahzad Jehangir, Senior Advocate Supreme Court for Respondents (in C. A. No. 1121 of 1997).

Dates of hearing: 5th to 8th October, 1999.

2000SCMR296

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

Mrs. AMINA BIBI through General Attorney---Petitioner

versus

NASRULLAH and others---Respondents

Civil Petition for Leave to Appeal No.361-L of 1999, decided on 24th September, 1999.

(On appeal from the judgment dated 26-11-1998 passed by Lahore High Court, Lahore, in Writ Petition No.550 of 1996).

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

----Ss.12(2), 96(2), 114, O.IX, R.13 & O.XLVII---Constitution of Pakistan (1973), Art.185(3)---Ex parte decree---Remedies---Where civil suit was decreed ex parte, various remedies available to aggrieved person were; firstly, filing application under O.IX, R.13, C.P.C., secondly, application under S.96(2), C.P.C., thirdly, petition for review under S.114 read with O. XLVII, C.P.C. and fourthly, petition under S.12(2), C.P.C.--­Petitioner having exhausted remedy by filing an application under O.IX, R.13, C.P.C., she could not be permitted to reagitate same issue by means of fresh petition under S.12(2), C.P.C.

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

----S.12(2)---Proceedings on petition under S.12(2), C.P.C.---While dealing with allegations under S.12(2), C.P.C., it was not incumbent upon Court that it must, in all circumstances, frame issues, record evidence and follow procedure prescribed for decision of the suit.

Amiran Bibi v. Muhammad Ramzan 1999 SCMR 1334 ref.

Mirza Hafeezur Rehman, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th September, 1999.

2000SCMR299

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Nasir Aslam Zahid and Mamoon Kazi, JJ

THE STATE through Deputy Director, Anti­

Narcotics Force, Karachi---Petitioner

versus

MOBIN KHAN---Respondent

Criminal Petition No.53-K of 1998, decided on 9th April, 1999.

(On appeal from the order dated 10-8-1998 of the High Court of Sindh, Karachi, in Criminal Bail Application No.330 of 199.8).

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

----S.497(1), third proviso---Control of Narcotic Substances Act (XXV of 1997), Ss.51(1) & 9(b), (c)---Bail on ground of statutory delay---Third proviso to subsection (1) of 5.497, Cr.P.C., cannot be pressed into service in view of subsection (1) of S.51 read with Cls. (b) & (c) of S.9 of the Control of Narcotic Substances Act, 1997, in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one Kg. and which may entail, inter alia, death sentence.

State v. Syed Qaim Ali Shah 1992 SCMR 2192 ref.

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

----Ss.497(5) & 497(1), third proviso---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 10, 11, 12 & 51(1)---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail---Bail had been allowed by High Court on the ground of statutory delay to accused from whom heroin weighing ten Kgs. was allegedly recovered---Provisions of third proviso to S.497(1), Cr.P.C., could not be pressed into service from grant of bail to accused in view of S.51(1) read with S.9(b) & (c) of the Control of Narcotic Substances Act, 1997---Even otherwise if it was conceded for the sake of arguments, that the application of the third proviso to S.497(1), Cr.P.C., had not been excluded by S.51(1) of the Control of Narcotic Substances Act, 1997 (which seems to be incorrect, since cl. (c) of S.9 of the said Act, inter alia, carried sentence of death), the statutory period of delay would be two years under cl. (b) of the third proviso to S.497(1), Cr.P.C. which admittedly had not yet expired and the accused could not have been granted bail on the ground of statutory delay---Petition for leave to appeal was consequently converted into an appeal and bail allowed to accused by High Court in the case was cancelled.

Ali Muhammad alias Ali Ghujoo v. The State NLR 1994 SD 491; Sajjad Hussain v. The State, 1996 PCr.LJ 1437; State v. Syed Qaim Ali Shah 1992 SCMR 2192; Allied Bank's case 1991 SCMR 599; Abdul Khaliq's case PLD 1990 Kar. 448; Mirza Jawad Beg's case PLD 1975 Kar. 628; Ubedullah's case 1989 PCr.LJ 626; Muhammad Yaqub Ali's case PLD 1985 Lah.48; Syed Zeeshan Akhtar's case 1988 PCr.LJ 843 and Abdul Karim and others v. The State 1969 SCMR 312 ref.

Nazir v. Amir Din 1971 SCMR 637 and Muhammad Ismail v. Hidayatullah 1981 SCMR 35 distinguished.

Naraindas C. Motiani, Advocate-on-Record for Petitioner.

Rana M. Shamim, Advocate Supreme Court and Ahmadullah Farooqi, Advocate-on-Record for Respondent.

Date of hearing: 9th April, 1999.

2000SCMR306

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Munir A. Sheikh, JJ

ABDUL MAJEED---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 120-L of 1998, decided on 7th July, 1999.

(On appeal from the judgment dated 22-10-1997 of the Lahore High Court passed in Criminal Appeal No.535 of 1994).

Penal Code (XLV of 1860)---

----S.304/34---Constitution of Pakistan (1973), Art. 185(3)---Sentence--­Incident according to F.I.R. had taken place in the month of February at .about 3/4 a.m. in the night---Complainant, father of the deceased, had admitted that his son had illicit relations with the sister of accused---Leave to appeal was granted by Supreme Court to consider the question of quantum of sentence awarded to accused.

Zahid Parvez and another v. The State PLD 1991 SC 575; Munir Ahmad v. The State 1994 SCMR 80; All Muhammad v. Ali Muhammad and others PLD 1996 SC 274 and Kamal v. The State PLD 1977 SC 153 ref.

Malik Saeed Hassan, Senior Advocate Supreme Court and Malik Abdus Sattar Chughtai, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 7th July, 1999.

2000 S C M R 308

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

GUL MUHAMMAD---Petitioner

versus

MEMBER (JUDICIAL-I), BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Civil Petition No. 1419-L of 1999, decided on 21st September, 1999.

(On appeal from the judgment dated 6-8-1999 of the Lahore High Court, Multan Bench, Multan, in W.P. No. 7353 of 1999).

Punjab Pre-emption Act (IX of 1991)---

----S.6---Constitution of Pakistan (1973), Art. 185(3)---Suit for pre­emption---Suit filed by petitioner plaintiff on ground of being a tenant was dismissed holding that plaintiff had failed to prove to be a tenant and such finding was upheld by High Court---Evidence on record had proved that land in dispute had been under cultivating possession of sons of plaintiff/petitioner and that petitioner was neither tenant nor at any time he .personally cultivated the land---Record also showed that plaintiff/petitioner was party to sale transaction---Plaintiff/petitioner, in circumstances, had no right of pre-emption and he being party to sale transaction was estopped to file suit.

M. Rashid Bhatti, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st September, 1999.

2000 S C M R 310

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

SHAUKAT ABBAS--- ---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.505-L of 1998, decided on 5th July, 1999.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 22-10-1998 passed in Criminal Appeal 210 of 1994).

Penal Code (XLV of 1860)---

----Ss.302, 337-A(i) & 337-F(i)---Constitution of Pakistan (1973), Art. 185(3)---Contentions were that prosecution evidence having been discarded by the Courts below in acquitting the co-accused, the same could not be pressed into service to record conviction and sentence against the accused; that the prosecution witnesses were interested and closely related to the deceased; that prosecution had failed to produce any evidence to corroborate its case; that motive as mentioned in the F.I.R. was shrouded in mystery; that the case was of single injury which was not repeated by the accused; that the occurrence was not preplanned or premeditated and that the recovery of the weapon of offence was not established beyond reasonable doubt---Leave to appeal was granted by Supreme Court to consider inter alia the said contentions to ensure fair administration of justice.

Raja Muhammad Anwar, Senior Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 5th July, 1999.

2000SCMR312

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Sh. Riaz Ahmed and Kamal Mansur Alam, JJ

MUHAMMAD SAFEER---Petitioner

versus

FAQIR KHAN and 2 others---Respondents

Criminal Petition for Leave to Appeal No. 188 of 1998, decided on 11th October, 1999.

(On appeal against the judgment, dated 30-10-1998 of the Peshawar High Court, Bench Abbottabad in Cr.R. No.9 of 1998).

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

----S.514---Abscondence of accused---Forfeiture of surety , bond--­Procedure--Forefeiture of surety bond had to be to the extent of the full amount of the bond---Reduction of amount of surety bond would not be in consonance with law.

Zeeshan Kazmi v. The State PLD 1997 SC 267 and Abdul Bari v. Malik Amir Jan and others PLD 1998 SC 50 fol.

Qazi Muhammad Jamil, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: l1th October, 1999.

2000 SCMR 314

[Supreme Court of Pakistan]

Present: Saiduzamman Siddiqui, C.J., Irshad Hasan Khan, Raja Afrasiab Khan, Muhammad Bashir Jehangiri and Nasir Aslant Zahid, JJ

ALTAF HUSSAIN --- Appellant

versus

ABDUL HAMEED @ ABDUL MAJEED through Legal

Heirs and another---Respondents

Civil Appeal No.369 of 1999, decided on 15th November, 1999.

(On appeal from the judgment dated 24-9-1997 as corrected/reviewed by order dated 26-2-1998 of the Lahore High Court, Lahore, passed in C.R.No.3565 of 1994).

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Pre-emption suit---Requirement of Talabs---Plaintiff could not be non-suited on the ground that date, time and place when and where the plaintiff learnt about the sale transaction, were not specifically pleaded in the plaint.

On the question of fact of making the two Talabs the concurrent findings of the two Courts below passed in favour of the plaintiff on evidence adduced before the trial Court were not liable to interference in revisional jurisdiction by the High Court. The concurrent findings of the two Courts below were not set aside on account of any patent illegality or perversity. No misreading or non-reading of evidence was pointed out except a passing reference to the evidence. The High Court set aside the concurrent findings on the ground that date, time and place, when and where the plaintiff learnt about the sale transaction, were not specifically pleaded in the plaint. On such ground plaintiff could not be non-suited. On merits also no illegality or material irregularity in the concurrent judgments, of the two Courts below had been pointed out by the High Court.

Shafi Muhammad v. Muhammad Hazar Khan 1996 SCMR 346 distinguished.

Haji Noor Muhammad v. Abdul Ghani Civil Appeal No. 1004 of 1999 rel.

Amir Jan v. Ghulam Muhammad PLD 1997 SC 883; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Qadar Gul v. Moembar Khan 1998 SCMR 2102; Khani Zaman v. Shah Hussain PLD 1998 SC 121 and Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Civil Procedure Code (V of 1908), S.115---Pre-emption suit--­Requirements of Talabs---Compliance by plaintiff---Concurrent findings of two Courts below in favour of plaintiff in a pre-emption suit---Interference by High Court under its revisional jurisdiction under 5.115, C.P.C.--­Conditions.

In the present case, none of the following legal or other infirmities in the concurrent findings of the two Courts below in favour of the plaintiff in a pre-emption suit were noted or pointed out in the impugned judgment: --

(i) The lower Courts exercised jurisdiction not vested in them.

(ii) The lower Courts failed to exercise any jurisdiction vested in them.

(iii) They acted in the exercise of their jurisdiction illegally or with material irregularity.

(iv) Misreading or non-reading of material evidence on record which had a direct bearing on the issues involved.

(v) Findings were perverse.

(vi) Findings could not be reached on the evidence on record.

In the circumstances, the High Court erred in interfering in revisional jurisdiction with the concurrent judgments of the trial and the Appellate Courts.

Muhammad Shahzad Shoukat, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellants.

M. Munir Peracha, Advocate Supreme Court and S.A.A. Jafri, Advocate-on-Record for Respondents.

Date of hearing: 15th November, 1999.

2000 SCMR 320

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Irshad Hassan Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid and Ch. Muhammad Arif, JJ

MIRZA SUGAR MILLS LTD. and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.200 and 203 to 210 of 1998, decided on 12th November, 1999.

(On appeal from the judgment dated 21-7-1998 passed by the Ehtesab Bench, Lahore High Court, Lahore, in Criminal Miscellaneous No.2 of 1998 in Ehtesab Reference No.26 of 1998).

Ehtesab Act (IX of 1997)---

----Ss 4, 6 & 7---Punishment for corruption and corrupt practices---Power of Ehtesab Bench to freeze property---Claim or objection against freezing--­Ehtesab Bench has the jurisdiction to make/issue issue orders to freeze the accounts etc. of the accused in references and further targets of the import of the law can also be discovered/located ---Frontmen and cronies of the accused in the reference can be taken to task in line with the provisions of the Act.

The questions regarding (1) capability or lot otherwise of the accused and/or anybody else in reference; (2) admissibility or otherwise of the evidence/material to be brought on the record by the parties; (3) culpability or otherwise of persons similarly placed as the accused persons, and (4) extent of the powers of the Ehtesab Benches is in relation to both the substantive and the procedural laws relevant to the dispute before it will be taken due notice of during the conduct of the case as also at the time of rendering final judgments in the said references. Ehtesab Bench is not denuded of the powers to consider the feasibility of making interim orders under the Act and "frontmen and cronies" of the se accused in the Ehtesab Reference can also be included therein.

The Act does confer the requisite jurisdiction on the Ehtesab Benches to make/issue orders to freeze the accountants etc. of the accused in Ehtesab References and that further target/s of the import of the law can also be discerned/located. Similarly, it cannot be den0enied that "frontmen and cronies" of the accused in Ehtesab References can be taken to task in line with the provisions of the Act.

Aitzaz Ahsan, Advocate Supreme Court V with Mehr Khan Malik, Advocate-on-Record for Appellants.

Tanvir Bashir Ansari, D.A.-G. with Ch. Ah Akhtar Ali, Advocate-on-­Record for the State.

Dates of hearing: 3rd and 5th November, 10999.

2000SCMR329

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Irshad Hasan Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid

and Munawar Ahmed Mirza, JJ

Haji NOOR MUHAMMAD ---Appellant

versus

ABDUL GHANI and 2 others---Respondents

Civil Appeal No. 1004 of 1999, decided on 27th October, 1999.

(On appeal from the judgment dated 14-5-1997 of the Lahore High Court, Lahore, passed in C.R.No.2470-D of 1996).

(a) Punjab Pre-emption Act (IX of 1991)--

----S.13---Constitution of Pakistan (1973), Art. 185(3)---Talab-i­-Muwathibat, requirements of---Leave to appeal was granted by Supreme Court to consider the points as to whether it was mandatory to give, in the plaint for a suit for possession by pre-emption, the particulars and details of the date, time and place of Talab-i-Muwathibat and also the names of the witnesses in whose presence said Talab was made and whether the High Court was legally competent and justified to set aside the agreed decision, on a question of fact, of the Appellate and Trial Courts to the effect that the requirements of "Talab-i-Muwathibat" had been fulfilled before the suit was instituted---Differences of opinion on disputed points by the Supreme Court Benches having been noted, larger Bench of the Supreme Court was urged to be constituted by the Chief Justice at an early date on account of urgency involved in the matter.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Requirements of Talab-i-Muwathibat in a pre-emption suit--­Pleading of the suit may refer to the material facts but law does not require the pleadings to contain gist of all the facts and names of the witnesses of plaintiff and suit for pre-emption is not an exception to such general principle---Contention that the requirements of Talab-i-Muwathibat could not be fulfilled unless details, particulars, date, time and place were specifically mentioned in the plaint and the names of the persons in whose presence such Talab was made were also mentioned therein, was repelled.

Shafi Muhammad v. Muhammad Hazar Khan and others 1996 SCMR 346 and Khani Zaman v. Shah Hussain and others PLD 1998 SC 121 distinguished.

Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 and Amir Jan and 3 others Haji Ghulam Muhammad PLD 1997 SC 883 ref.

(c) Punjab Pre-emption Act (IX of 1991)--

----S. 13---Civil Procedure Code (V of 1908), O. VI, R.5---Pre-emption suit---Requirements of Talabs---Plaintiff had specifically referred in the plaint to the two Talabs having been made---Plaintiff could not be non-suited merely on the ground that other details of time and place to the Talabs, and names of witnesses etc. had not been specifically mentioned in the plaint---If defendants had any difficulty in filing their written statement, they could apply to the Trial Court for further and better particulars by filing an appropriate application under O.VI, R.5, C.P.C.---No such request was made by the defendants and they filed written statement without taking any plea therein that they had been prejudiced on account of any detail or particular having not been given in the plaint---Plaintiff, held, could not be non-suited in circumstances.

(d) Punjab Pre-emption Act (IX of 1991)---

----S.13(3)---Civil Procedure Code (V of 1908), O.VI--a-Pre-emption suit--­Requirements of Talabs---Talabs had been duly made---Production of copies of notices under S.13(3), Punjab Pre-emption Act, 1991, sent by the plaintiff to defendants---Record showed that in the evidence of the plaintiff, copies of notices were produced which were marked but not exhibited---No objection had been raised by the production of copies of such notices by the defendants---Trial Court relied upon the said notices in its judgment and defendants in memo. of their appeal before the Appellate Court neither took the ground about the admissibility of the copies of such notices nor the plea that they had not received such notices---Appellate Court, however, allowed additional evidence regarding acknowledgment receipts showing service of the notices upon the defendants---No plea with regard to non-receipt of notices by defendants was taken before the Appellate Court--­Plaint also showed that Talabs had been duly made---High Court, in circumstances, held, erred in holding that the plaintiff had been wrongly allowed to produce evidence about a fact which had not been pleaded in the pleadings.

(e) Punjab Pre-emption Act (IX of 1991)---

----S.13(3)---Civil Procedure Code (V of 1908), S.115---Pre-emption suit--­Requirements of Talabs---Revision by High Court---Scope---Plaintiff in his plaint had specifically referred to the making of the Talabs---Copies of notices under S.13(3), Punjab Pre-emption Act, 1991, had been produced ir: evidence to which no objection had been raised by defendants---Defendants had not taken any plea in the memo. of appeal to the effect that notices had not been served---Concurrent findings by Trial Court and Appellate Court regarding Talabs having been made and notices under S.13(3) being served upon the defendants were based on evidence adduced before the Trial Court---No case of misrepresentation was made out---No material irregularity in the judgments of the Courts below was shown---Such findings of facts were not liable to interference in revisional jurisdiction by the High Court under S.115, C.P.C.

Malik Abdul Wahid, Advocate Supreme Court and Syed Abdul Aasim Jafri, Advocate-on-Record (absent) for Appellants.

Sh. Izharul Haq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Respondents.

Date of hearing: 27th October, 1999.

2000SCMR338

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ, Irshad Hassan Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid and Ch. Muhammad Arif, JJ

ABDUS SALAM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.22-Q of 1994, decided on 2nd November, 1999.

(On appeal from the judgment dated 20-12-1993 of the Balochistan, High Court, Quetta, passed in C.J.A. No.63 of 1993).

(a) Penal Code (XLV of 1860)

----Ss.302(a)(b) & 304---Constitution of Pakistan (1973), Art. 185(3)---Qatli-amd---Leave to appeal was granted by Supreme Court to consider questions of general importance involving interpretation of Ss.302 & 304, P.P.C. as to where Qatl-i-amd could not be punished with death as Qisas under S.302(a), P.P.C., was there any bar in awarding punishment of death as provided by S.302(b), P.P.C.; what was the standard of proof required by S.304, P.P.C., for proving Qatl-i-amd liable to Qisas and what distinctive standard of proof would be required and guiding principles followed while awarding punishment of death as Ta-zir in another case.

(b) Penal Code (XLV of 1860)----

----Ss.302(a) & 304---Qanun-e-Shahadat (10 of 1984), Art. 17---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd---Reply to the charge and statement under 5.342, Cr.P.C., by the accused would not amount to confession as required under S.304(1)(a), P.P.C.---Evidence of witnesses having not been subjected to Tazkiya-tul-Shahood, could not satisfy the test provided in Art. 17, Qanun-e-Shahadat, 1984.

Manzoor v. State 1992 SCMR 2307 ref.

(c) Penal Code (XLV of 1860)---

----S.302(b) & (a)----Qatl-i-amd liable to Qisas---Where prosecution had established its case against the accused for Qatl-i-amd of his mother, conviction was required to be recorded under S.302(b), P.P.C. and not under S.302(a), P.P.C.

(d) Penal Code (XLV of 1860)---

----Ss.302(b)(a) & 304---Qatl-i-amd liable to Qisas---If Qatl-i-amd could not be punished with death as Qisas under S.302(a), P.P.C., on account of proof being not available in either of the forms specified in 5,304, P.P.C., punishment as Ta'zir could be awarded under S.302(b), P.P.C., which provided for sentence of death or imprisonment for life---Either of said two punishments could be awarded as Ta'zir for Qatl-i-amd and there was no bar or restraint in awarding punishment of death under S.302(b), P.P.C.

(e) Penal Code (XLV of 1860)---

----Ss.302(b), (c) & 304(1)---Qanun-e-Shahadat (10 of 1984), Art. 17---Qatl­i-amd liable to Qisas---Standard of proof required by S.304, P.P.C., for establishing the charge of Qatl-i-amd liable to Qisas---Provision of S.304(1), P.P.C., provided two forms in which proof of Qatl-i-amd was required to be given i.e. voluntary and true confession of the commission of offence by the accused before the Court competent to try the offence or by evidence as provided in Art.17, Qanun-e-Shahadat, 1984---Requirement of Islamic law was that witnesses must stand the test of Tazkiya-tul-Shahood.

(f) Penal Code (XLV of 1860)---

----S.302(a) & (b)---Qatl-i-amd-----Punishments provided in S.302(a) and 302(b), P.P.C.---Difference.

The basic difference as regards punishments provided in sections 302(a) and 302(b) for Qatl-i-amd is that under section 302(a) there is no discretion with the Court but to award sentence of death as Qisas as that is the punishment provided, whereas under section 302(b) punishment is death or imprisonment for life as Ta'zir.

Though under section 302(b), P.P.C., for Qatl-i-amd punishment as Ta'zir is provided as death or imprisonment for life but from this it does not follow that the Court has absolute discretion to award either of the two sentences. Normal sentence for Qatl-i-amd as Ta'zir is death. The Court, however, has the discretion to award the lesser sentence of life imprisonment in case there are mitigating circumstances. Such discretion is neither uncontrolled nor it is to be exercised arbitrarily. It is to be exercised judiciously. The Court, after reaching the conclusion that the accused is guilty of Qatl-i-amd, can award lesser sentence of life imprisonment provided the Court records reasons for awarding such lesser sentence i.e. mitigating circumstances on account of which a case is made out for not awarding the normal sentence of death. Though in section 302(b), P.P.C., provision has been made for awarding death sentence or life imprisonment as Ta'zir for Qatl-i-amd, the normal sentence for committing such offence is death and in case the other punishment, i.e. life imprisonment is awarded, the Court is required to record reasons for such lesser sentence.

(g) Penal Code (XLV of 1860)---

----S.302(b)---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd--­Appraisal of evidence---Sentence---Mitigating circumstances --- Prosecution evidence comprising the testimony of accused's father, sister and sister-in­-law established the prosecution case against the accused for committing the cold-blooded murder of his mother, accused had come duly armed with an iron rod and, on the mere refusal of the mother to pay him Rs.100 he attacked the deceased with iron rod which resulted in her death---Accused pleaded guilty to the charge and, even in his statement recorded under S.342, Cr.P.C., he admitted that he had murdered his mother---Neither the witness nor the accused had taken the plea that at the time of committing the murder of his mother accused was under the influence of drugs or was not in his senses---Trial Court rightly awarded the death sentence to the accused under S.302(b), P.P.C., which was confirmed by the High Court, and no mitigating circumstances requiring commutation of the death sentence to life imprisonment existed in circumstances.

Arshad Ali Ch., Advocate Supreme Court for Appellant.

Raja A. Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 2nd November, 1999.

2000SCMR346

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sheikh Riaz Ahmed

and Ch. Muhammad Arif, JJ

ABDUL RAHIM and another---Petitioners

versus

Mrs. JANNATAY BIBI and 13 others---Respondents

Civil Petition No.845 of 1999, decided on 27th October, 1999.

(On appeal from the judgment dated 24-4-1999 passed by Lahore High Court, Lahore, in C.R. No. 1980 of 1995).

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

----S.115(1)(a)(b)(c)---Revision---Jurisdiction of High Court ---Conditions--­Petitioner was legally obliged to make out a case for exercise of its jurisdiction by the High Court and was burdened to prove that either the appellate forum was not possessed of the jurisdiction to decide the matter as same had done or that the said forum had declined to exercise jurisdiction, vested in it or that it had acted in the exercise of its jurisdiction illegally or with material irregularity---Absence of any of the three conditions forthcoming in a given case, revisional forum could ill-afford to reverse the findings of the appellate forum.

Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504 fol.

(b) Muhammadan Law---

---- Limitation Act (IX of 1908), Art.120---Gift---Limitation---Execution of gift being doubtful, such fact was sufficient to take the case of gift out of the purview of the period of limitation prescribed under Art-120, Limitation Act, 1908.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts.118 & 119---Gift---Validity---Burden of proof---Alleged donee had failed to discharge burden of proof on him to establish a valid gift by not entering the witness-box---Revenue officer who allegedly attested the mutation of gift was not produced which was conspicuous to tell a lot about the nature of the alleged transaction of gift---High Court after considering the peculiar circumstances of the case had rightly found the gift to be doubtful.

Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Muhammad Yar v. Qaim Khatoon 1989 CLC 1737; Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W,P.) Lah. 932; Hakam Khan v. Nazir Ahmad Lugomani 1990 MLD 89; Maqbool Ahmad v. Hakoomat-e-­Pakistan 1991 SCMR 2063; Ghulam Haider v. Sooban Bibi and others 1986 MLD 1952; Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 and Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504 ref. Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners.

Gul Zarin Kiyani, Advocate Supreme Court for Respondent No. 1.

Nemo for Respondents Nos.2 to 14.

Date of hearing; 27th October, 1999.

2000SCMR354

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Wajihuddin Ahmed, JJ

NOORUDDIN and 3 others---Petitioners

versus

PAKISTAN through the Secretary, Ministry of

Communication, Government of Pakistan, Islamabad and 3 others ---Respondents­

Civil Petition for Leave to Appeal No.405-K of 1999, decided on 23rd August, 1999.

(On appeal from the judgment, dated 18-5-1999 of the Sindh High Court, Karachi, passed in HCA No. 151 of 1997).

Limitation Act (IX of 1908)----

----Ss. 4 & 12---Scope and application of S.4, Limitation Act, 1908--­Exclusion of time---Provision of S.4, Limitation Act, 1908, enables a suitor, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute, prefer or make such suit, appeal or application as the case may be, on the day Court re-opens---Principles illustrated.

Section 4 of the Limitation Act enables a suitor, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute, prefer or make such suit, appeal or application, as the case may be on the day the Court re-opens. Where the Limitation Act provides an extension in the period of limitation such as under the bulk of sections 6 to 24, the person concerned may add such period to that in contemplation of the First Schedule to the Limitation Act, and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application, taking benefit from section 4 of the Limitation Act, may be instituted, preferred or made on the date the relevant Court reopens.

The seeking of the certified copy of the assailed judgment, decree or order on the date the Court re-opens, and filing of the relevant appeal/application on the very date on which such certified copy is prepared and obtained are factors which, in terms of section 4 of the Limitation Act, do not come in the reckoning.

The day on which limitation springs up and expires (section 9 of the General Clauses Act, 1897) read with the commencing and concluding days in the title to the First Schedule in the Limitation Act, as augmented by subsection (1) and the newly-added subsection (5) of section 12 of the same Act, are not to be counted nor the day on which (while the right subsists) the certified copy of the impugned judgment or decree is applied for, nor the day on which it is notified to be ready and made ready, as the day on which the appeal or application is preferred, even if preferred on the last (such reckoned) day of limitation.

In computing the period prescribed for any suit, appeal or application the day from which such period is to be reckoned is excluded whereas under other enabling provisions the various extensions therein are required to be added. However, once limitation begins to run to subsequent benefit of such periods is allowable. But that is only, when the period has actually begun to run, something different than the mere expiry date of limitation. In cases where limitation is projected to expire, while the Court is closed, it may be possible to say that such period has actually expired during vacations but, perhaps, not easy to say that upon such expiry limitation has begun. It may, arguably being only when the reopening day has come and gone and the affectee has neither submitted his proceedings nor done anything to save his right in that behalf. An illustration or two may bring home the point. Assume, now, a situation where for filing an application (say that for review) in Court, only a period of one day is allowed but other benefit under the several provisions of the Limitation Act are left unaffected. The person who is to file the application on the day next to the day of accrual of the cause, files on such next day an application for the certified copy of the order which he intends to question. Under section 12, subsections (2) and (5) etc., the moment that application is made, such should preclude limitation to run against him and the preclusion may continue till the date the requisite copy is postulated ready for delivery and delivered duly. In other words, such an applicant, if he prefers the required application (say for review) on the day' the certified copy is thus prepared and delivered, could be within time. This is because time may not have run against him from the day he filed his application for due copy and obtained its delivery immediately upon preparation, filing the (review) application the same day. In this scenario and in a parallel case, when the affectee is entitled to file his appeal or application on the day the Court reopens, if on such day he applied for the certified copy and duly obtained it immediately on the date it is ready, promptly filing his appeal or application, upon receipt of the copy, it can, perhaps, be argued that time has not been run against him. However, this kind of grace is not available.

In the present case the judgment in the suit on the original side of the High Court of Sindh was reserved at a time- the Court was functioning in routine but the order was announced when the Court had gone into summer vacation. No notice of such announcement except, apparently, in the cause list occurred and there was nothing on the record to show that either any notice was addressed to the parties for such announcement or a copy of the cause list was delivered to the concerned advocates. It is a known fact that when a case is taken up in the High Court of Sindh during vacation, copies of cause list are supplied only to such advocates whose names appear in such list and even that, at times is neglected to be done. In the present case, the counsel for affected party maintained that he never came to know of announcement of the judgment during vacation and nothing to the contrary was urged or shown. This implied that the necessary steps taken to prefer an appeal from the date of knowledge could be considered for computing the time within which the appeal could be taken. Certified copy of the judgment and decree was applied for on the very day on which counsel came to know of the announcement viz. the day when the Court reopened after the summer vacation and appeal was preferred on the very day the certificate copy became ready and was delivered. In these circumstances when the pronouncement of the judgment could not be counted against the appellant, because of want of notice, the appeal would obviously be in time.

Fayyaz Ahmad v. Hidayat Begum 1997 SCMR 1393 distinguished.

Chief Personnel Officer, Pakistan Railways v. Anjum Farooq 1997 SCMR 860; Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others AIR 1935 PC 85; Nagana v. Krishnamurthi AIR 1932 Mad. 139; Nur Muhammad v. Sachul PLD 1957 Kar. 843; Rasul Bakhsh v. Ghulam Qadir PLD 1960 Kar. 741; Fazal Karim v. Ghulam Jilani 1975 SCMR 452; Inshallah Begum v. Shamim Akhtar 1983 CLC 2583; Ikramullah v. Said Jamal 1980 SCMR 375; Port Muhammad Bin Qasim v. NIC, Karachi 1983 CLC 3126; Umedsingh v. Shankerlal AIR 1948 Nag. 63; Ziaul Haq v. A. Brabant PLD 1962 Pesh. 21 and Kanhaiyalal v. Ramkishan AIR 1966 Mad. Pra. 340 ref.

Usman Ghani Rashid, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd August, 1999.

2000SCMR365

Present: Raja Afrasiab Khan, Sh. Ijaz Nisar and Abdur Rehman Khan, JJ

JAHANZEB KHAN---Petitioner

versus

MUHAMMAD IQBAL---Respondent

Civil Petition for Leave to Appeal No.315 of 1999, decided on 5th November, 1999.

(On appeal from the judgment/order dated 14-12-1998 passed by the Peshawar High Court, Abbottabad Bench, Abbottabad, in Civil Revision No. 104 of 1996).

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 24(1) [as amended by North-West Frontier Province Pre-emption (Amendment) Act (X of 1992)]---Pre-emption suit---Direction to pre-emptor to deposit 1/3rd of pre-emption money by Trial Court ---Pre-emptor failed to deposit 1/3rd of pre-emption money and moved application for extension of time which the Trial Court allowed---Appellate Court upheld the order of Trial Court but the High Court dismissed the pre-emption suit on the ground of non-deposit of 1/3rd of pre-emption amount---Validity---Held, provision of S.24(2) of the North-West Frontier Province Pre-emption Act, 1987 [as amended by North-West Frontier Province Pre-emption (Amendment) Act, 1992] made it obligatory for the Court to dismiss the suit on the failure of the pre-emptor to deposit 1/3rd of the pre-emption money within the period fixed by the Court---Principles.

The ground which weighed with the trial Court in extending the time was vague and was not accompanied by any medical certificate or an affidavit of pre-emptor. Even if, these shortcomings had not been there, still the High Court could not have legally extended the time limit because the law was very clear and subsection (2) of section 24 of Pre-emption. Act, 1987, as amended in 1992, made it obligatory for the Court to dismiss the suit on failure of the plaintiff to deposit 1/3rd of sale price within the period fixed by the Court.

Before amendment of section 24 by Act X of 1992, the Court had the power to extend the period not beyond 30 days of filing of the suit but under the amended section 24, there is no statutory limit within which the deposit had to be made and matter has been left to the discretion of the Court to fix time within which the deposit had to be made and its failure must result in the dismissal of the suit.

Law was to be interpreted and applied rationally, justly, fairly and not arbitrarily, thus, no benefit could be claimed by the pre-emptor by invoking the former provisions of section 24 of the Act. The order of High Court in dismissing the suit for the failure of the pre-emptor to deposit 1 /3 of the suit price within the period fixed by the trial Court was unexceptionable and did not call for any interference.

(b) Interpretation of statutes---

----Principles---Law is to be interpreted and applied rationally, justly, fairly and not arbitrarily.

Ch. Afrasiab Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Munir Piracha, Advocate Supreme Court for ,Respondent.

Date of hearing: 5th January, 1999.

2000SCMR367

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Irshad Hasan Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid and Munawar Ahmed Mirza, JJ

MUHAMMAD HUSSAIN and others---Appellants

versus

MUHAMMAD and others---Respondents

Civil Appeals Nos. 97 to 108, 110 to 113, 1155 of 1995; 693, 1309 of 1996; 597, 631, 632 of 1997; 240, 1256 and 1258 of 1998, decided on 8th November, 1999.

(On appeal from the judgments of Peshawar High Court dated 18-12-1994, passed in C.R. 80 of 1994; 13-9-1994 in C.R. 212 of 1994; 17-10-1994 in C.R. 533 of 1993; 30-5-1994 in C.Rs. 50 of 1994; 49 of 1994, 199 of 1993; 8-6-1994 in C.Rs.537 of 1994, 538 of 1994; 18-5-1994 in C.Rs. 18 of 1993, 187 of 1993, 186 of 1993; 4-4-1994 in C.R. 134 of 1993, 4-5-1994 in C.Rs.182 of 1993, 181 of 1993, 180 of 1993, 4-4-1994 in C.R. 220 of 1993, 17-10-1994 in C.R. 300 of 1993, 11-5-1994 in C.R. 673 of 1993, 12-2-1995 in C.R. 189 of 1993, 12-10-1995 in C.R.19 of 1994, 7-3-1996 in C.Rs.263 of 1994, 264 of 1994, 17-10-1994 in C.R. 326 of 1993; 9-2-1998 in C.R. 119 of 1996 and 14-3-1996 in C.R. 757 of 1994 respectively).

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.31 [as amended by North-West Frontier Province Pre-emption (Amendment) Act (X of 1992)]---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to examine legal question of general importance affecting a large number of cases pending in Courts as to whether by filing a suit before the amendment in S.31, North-West Frontier Province Pre-emption Act, 1987, by North-West Frontier Province (Amendment) Act, 1992, a vested right was created in the plaintiffs and could such right be taken away by procedural amendment reducing the period of limitation with retrospective effect.

(b) Constitution of Pakistan (1973)---

----Art.185---Supreme Court Rules, 1980, O.XIII, R.1---Appeal to Supreme Court---Delay in filing appeal ---Condonation of delay---Mere fact that leave to appeal had been granted to consider legal question of general importance involving same question was not sufficient to condone the delay in filing appeal.

(c) North-West Frontier Province Pre-emption Acct (X of 1987)---

----S.31 [as amended by North-West Frontier Province Pre-emption (Amendment) Act (X of 1992)], S.1(2)---Provision of S.31, North-West Frontier Province Pre-emption Act, 1987, was though amended retrospectively by North-West Frontier Province Pre-emption (Amendment) Act, 1992 and the period of limitation for institution of pre-emption suit was curtailed from one year to 120 days and the provision was made applicable from 31-12-1991 but the words used in S.1(2) of Amending Act of 1992 were not wide enough to cover the proceedings pending on the date when the amendment in S.31 of North-West Frontier Province Pre­emption Act, 1987, was made by the Amending Act of 1992---Suits instituted which were pending on 16-12-1992 when the Amending Act of 1992 was enforced, were maintainable.

From a careful reading of section 1(2) of North-West Frontier Province Pre-emption (Amendment) Act, 1992, it is quite clear that though Amending Act of 1992 came into force on the date of its enactment namely 16-12-1992, but its provisions were given effect to from 31-12-1991. North-West Frontier Province Pre-emption (Amendment) Act, 1992, is retrospective in its application and its provisions came into effect from 31-12-1991. It, therefore, follows that the period of limitation which was originally prescribed under section 31 of the North-West Frontier Province Pre-emption Act, 1987, as one year, stood curtailed to 120 days and this amendment was made effective with effect from 31-12-1991. The question which, however, arose for consideration was whether the above retrospective effect given to North-West Frontier Province Pre-emption (Amendment) Act, 1992, through subsection (2) of section 1, destroyed the vested rights of parties and if so to what extent.

There is strong presumption against the retrospectivity of a legislation which touches or destroys the vested rights of the parties. No doubt the Legislature is-competent to give retrospective effect to an Act and can also take away the vested rights of the parties, but to provide for such consequences, the Legislature must use words which are clear, unambiguous and are not capable of any other interpretation or such interpretation follows as a necessary implication from the words used in the enactment. Therefore, while construing a legislation which has been given retrospective effect and interferes with the vested rights of the parties, the words used therein must be construed strictly and no case should be allowed to fall within the letter and spirit of Act which is not covered by the plain language of the legislation.

The question of limitation is generally considered to be a matter of procedure and therefore, even without giving retrospective effect to the amendment made in section 31 the provisions would have applied retrospectively.

The Legislature is competent to give retrospective effect to a legislation and in that process even it could take away vested rights of the parties but for that it must use clear words in the statute, or such a consequence must arise as a necessary implication from the language of the legislation.

By merely providing in subsection (2) of section 1 of the Amending Act that the "provision of the Act shall be deemed to have taken effect from 31-12-1991", the suits already filed in accordance with the existing provision of section 31 of North-West Frontier Province Pre­emption Act, 1987, could not be rendered non-maintainable. While construing a provision, which is retrospective in operation and touches the vested rights of the parties, the words used therein cannot be stretched to include those cases which do not fall within the plain and unambiguous language of the legislation. The words "shall be deemed to have taken effect on 31st December, 1991" in section 1(2) of North-West Frontier Province Pre-emption (Amendment) Act, 1992, are not capable of interpretation and wide enough to include within their scope the proceedings legally instituted and which were pending on the date Amending Act of 1992 was promulgated. Suits filed under North-West Frontier Province Pre-emption Act of 1987 in accordance with the period of limitation prescribed under section 31 of Act of 1987, which were pending on the date Amending Act X of 1992 was promulgated, could not be dismissed on the ground that the limitation prescribed under section 31 of the Act of 1987 stood curtailed as a result of amendment brought about through Amending Act X of 1992. If the Legislature intended that section 31 of the Act of 1987 would apply to the pending suits/proceedings also, it could have provided so in Amending Act X of 1992.

Although section 31 of North-West Frontier Province Pre-emption Act, 1987, was amended retrospectively by Legislature through North-West Frontier Province Pre-emption (Amendment) Act, 1992 and the period of limitation for institution of a pre-emption suit was curtailed from one year to 120 days and this provision was made applicable from 31-12-1991 but the words used in subsection (2) of section 1 of the Act of 1992 are not wide enough to cover the proceedings pending on the date when the amendment in section 31 of the North-West Frontier Province Pre-emption Act of 1987 was made through Amending Act X of 1992. As a result the suits instituted which were pending on 16-12-1992 when the Amending Act X of 1992 was enforced, were maintainable.

Adrian Afzal v. Cap. Sher Afzal PLD 1969 SC 187; New Bon Tev. v. Kemderana Bas Mara 1983 PSC 1200 and Commissioner of Income-tax v. .Asbestos Cement Industries Ltd. 1993 SCMR 1276 ref.

(d) Interpretation of statutes---

----Retrospective legislation---Presumption---Extent---While construing a legislation which has been given retrospective effect and interferes with the vested rights of the parties, the words used therein must be construed strictly and no case, should be allowed to fall within the letter and spirit of the Act which is not covered by the plain language of the legislation--­Principles.

There is a strong presumption against the retrospectivity of a legislation which touches or destroys the vested rights of the parties. No doubt the Legislature is competent to give retrospective effect to an Act and can also take away the vested rights of the parties, but to provide for such consequences, the Legislature must use words which are clear, unambiguous and are not capable of any other interpretation or such interpretation follows as a necessary implication from the words used in the enactment. Therefore, while construing a legislation which has been given retrospective effect and interferes with the vested rights of the parties, the words used therein muse be construed strictly and no case should be allowed to fall within the letter and spirit of Act which is not covered by the plain language of the legislation.

The Legislature is competent to give retrospective effect to a legislation and in that process even it could take away vested rights of the parties but for that it must use clear words in the statute, or such a consequence must arise as a necessary implication from the language of the legislation.

While construing a provision, which is retrospective in operation and touches the vested rights of the parties, the words used therein cannot be stretched to include those cases which do not fall within the plain and unambiguous language of the legislation.

Adrian Afzal v. Cap. Sher Afzal PLD 1969 SC 187; New Bon Tev. v. Kemderana Bas Mara 1983 PSC 1200 and Commissioner of Income-tax v. Asbestos Cement Industries Ltd. 1993 SCMR 1276 ref.

Mian Younas Shah, Senior Advocate Supreme Court for Appellant (in C.A. No. 97 of 1995).

Anwar H. Mir, Advocate-on-Record for Respondent No. l (in C. A. No. 97 of 1995).

Respondents Nos.2 and 3: Ex parte (in C.A. No. 97 of 1995).

Zahoor Qureshi, Advocate-on-Record for Appellant (in C.A. No. 98 of 1995).

K.G. Sabir, Advocate-on-Record for Respondents Nos. l and 3 (in C.A. No. 98 of 1995).

Nemo for Appellant (in C. A. No. 99 of 1995).

Jan Muhammad Khan, Advocate-on-Record for Respondent (in C.A. No. 99 of 1995).

Mian Younas Shah, Senior Advocate Supreme Court and Safdar Hussain, Advocate-on-Record (absent) for Appellants (in C.As. Nos. 100 and 101 of 1995).

Muhammad Latif, Advocate Supreme Court and K.G. Sabir, Advocate-on-Record for Respondents Nos.l and 2 (in C.As. Nos. 100 and 101 of 1995). .

Mian Younas Shah, Senior Advocate Supreme Court and Safdar Hussain, Advocate-on-Record (absent) for Appellant (in C.A. No. 102 of 1995).

Muhammad Latif, Advocate Supreme Court and K.G. Sabir, Advocate-on-Record for Respondent (in C.A. No. 102 of 1995).

Aman Khan. Advocate Supreme Court and Nut Ahmad Khan, Advocate-on-Record (absent), for Appellants (in C.As. Nos.103 and 104 of 1995).

Jan Muhammad Khan, Advocate-on-Record for Respondents Nos. l to 4 (in C. A. No. 103 of 1995).

Nemo (in C.A. No. 104 of 1995).

Appellant in person (in C. A. No. 105 of 1995).

Respondents Nos. l and 3: Ex parte (in C.A. No. 105 of 1995).

Respondent No.4 in person (absent) (in C.A. No. 105 of 1995).

Appellant in person (in C.As. Nos.. 106 and 107 of 1995).

Respondent: Ex parte (in C.As. Nos. 106 and 107 of 1995).

Fateh Muhammad Khan, Advocate-on-Record for Appellant (in C.A. No. 108 of 1995).

Sardar M. Aslam, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. l (in C. A. No. 108 of 1995).

Respondents Nos.2 and 3: Ex parte (in C.A. No. 108 of 1995).

Abdul Aziz Kundi, Advocate-on-Record for Appellant (in C.As. Nos. 110 to 112 of 1995).

Abdul Samad Khan, Advocate-on-Record for Respondent (in C.As. Nos. 110 to 112 of 1995).

Abdul Aziz Kundi, Advocate-on-Record for Appellant (in C.A. No. 113 of 1995).

Jan Muhammad Khan, Advocate-on-Record for Respondent (in C.A. No. 113 of 1995).

Aman Khan, Advocate Supreme Court and Nur Ahmed Khan, Advocate-on-Record (absent) for Appellant (in C.A. No. 1155 of 1995).

Jan Muhammad Khan, Advocate-on-Record for Respondent (in C.A. No. 1155 of 1995).

Aman Khan, Advocate Supreme Court for Appellant (in C.A. No.693 of 1996).

M. Ismail Qureshi, Advocate-on-Record (absent) for Respondent (in C.A. No.693 of 1996).

Appellant in person (in C. A. No. 1309 of 1996).

Respondent: Ex parte (in C.A. No. 1309 of 1996).

Fateh Khan, Advocate Supreme Court and M. Zahoor Qureshi Azad, Advocate-on-Record for Appellant (in C.A. No.597 of 1997).

M.S. Khattak, Advocate-on-Record (absent) for Respondent (in C.A. No.597 of 1997). .

Abdul Sattar Khan, Advocate Supreme Court and M. Zahoor Qureshi Azad, Advocate-on-Record for Appellant (in C.As. Nos. 631 and 632 of 1997).

M.S.' Khattak, Advocate-on-Record (absent) for Respondent (in C.As. Nos. 631 and 632 of 1997).

Fateh Muhammad Khan, Advocate Supreme Court for Appellant (in C.A. No.240 of 1998).

K.G. Sabir, Advocate-on-Record for Respondent (in C.A. No.240 of 1998).

Aman Khan, Advocate Supreme Court and S. Safdar Hussain, Advocate-on-Record (absent) (in C.A. No. 1256 of 1998).

Abdul Aziz Kundi, Advocate-on-Record for Respondent (in C.A. -No. 1256 of 1998).

M. Zahoor Qureshi Azad, Advocate-on-Record for Appellant (in C. A. No. 1258 of 1998).

M.S. Khattak, Advocate-on-Record (absent) for Respondent (in C. A. No. 1258 of 1998).

Date of hearing: 28th October, 1999.

2000SCMR383

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Abdur Rehman Khan and Sh. Riaz Ahmed, JJ

SAEED AKHTAR and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.528, 529 of 1995 and Jail Petition No. 11 of 1996, decided on 20th October, 1999.

(On appeal from the judgment dated 28-5-1995 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 820, 956 and 82-J of 1991 and Murder Reference No.348 of 1991).

(a) Constitution of Pakistan (1973)----

----Art.187----Supreme Court Rules, 1980, O. XXXIII --- Application and scope---Article 187 of the Constitution and O. XXXIII of the Supreme Court Rules, 1980, are not applicable where the matter stands finally concluded by the judgment of Supreme Court---Applicability of the two provisions could not be extended to reopen past and closed transaction or to re-agitate a matter which stood finally determined by Supreme Court.

Muhammad Aslam and another v. The State PLD 1978 SC 298; Mst. Bibi Jan v. Habib Khan and another PLD 1975 SC 295; Khushdil Khan and 3 others v. The State PLD 1981 SC 582 and Mst. Safyya and another v. Muhammad Rafique and 6 others PLD 1993 SC 62 distinguished.

(b) Penal Code (XLV of 1860)---

----Ss.302/149 & 148---Appraisal of evidence---Family of the deceased and the eye-witnesses had no ill-will against the accused and had no reasons to substitute them for the real culprits---Occurrence had taken place in broad daylight and had been very promptly reported to the police---Eye-witnesses who resided in different village had provided reliable reasons for their presence with the deceased at the time of occurrence which could not be discredited---Prosecution had no need to prove deliberation and consultation between the accused before the occurrence which was not possible, but they had been held guilty on the basis of what they had done on the spot which was sufficient to determine their guilt---Motive for the occurrence had been proved on the record---Participation of accused in the commission of ,the offence after having formed an unlawful assembly was also proved who had exhorted their co-accused to do away with the deceased and had been rightly held vicariously liable for the two murders having been committed in prosecution , of the common object of the unlawful assembly---Convictions and sentences of accused were upheld in circumstances.

(c) Penal Code (XLV of 1860)---

----Ss.302/149 & 148---Appreciation of evidence---Related witnesses---Mere relationship of the witnesses with the deceased would not detract from their veracity who had absolutely no motive of their own to involve the accused.

(d) Criminal trial---

---- Witness---Prosecution evidence---Prosecution is not bound to produce all the witnesses.

(e) Penal Code (XLV of 1860)---

----Ss.302/149 & 148---Sentence---Insufficiency of motive---Where murder is proved in a case, insufficiency of motive would not be a bar for imposition of normal penalty of death.

Talib H. Rizvi, Advocate Supreme Court, S. Ali Imam Naqvi, Advocate-on-Record and Rao M. Yousaf Khan, Advocate-on-Record for Appellants.

Date of hearing: 20th October, 1999.

2000SCMR391

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Wajihuddin Ahmed, JJ

MUHAMMAD HUSSAIN---Petitioner

versus

SANI HUSSAIN and 2 others---Respondents

Civil Petition No.59-K of 1999, decided on 7th September, 1999.

(On appeal from the judgment dated 31-10-1998 of the Sindh High Court passed in R.A. No. 121 of 1996).

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of pleadings-- -Case being set up through the proposed amendments had the potential of converting the character of the suit, virtually substituting the causes of action or at least adding new ones to those already existing and what was more the added relief fell in a category totally different than those already resorted to---Effect---Allowing such amendments to pleadings of such character was more an exception than the rule and an overriding just and lawful case had to be established before such amendments could even come to be considered---Duty of Courts---Principles.

In the present case many of the new averments, sought to be incorporated in the plaint, concerned third parties, never arrayed as defendants in the suit. In fact, some of the already existing pleas, on the part of the plaintiff, also concerned a few of that number. In specific instances the causes of action were as old as dating back to 1964, whereas the current suit was only brought in 1989. Besides, the case being set up, through the proposed amendments, had the potential of converting the character of the suit, virtually substituting the causes of action or at least adding new ones to those already existing and what was more the added reliefs fell in a category totally different than those already resorted to.

Allowing amendments to pleadings of this character was more an exception than the rule and an overriding just and lawful case had to be established before such amendments could even come to be considered. Courts, in particular had to be extremely cautious in allowing amendments, when the added or substituted causes of action or reliefs may ex facie be barred by time and nothing was brought on record to indicate that the initial omission to timely incorporate the pleas was bona fide. This arises because, except iii cases where ate additional claim was allowed to be inserted, the pleading, as amended, shall be deemed to have been presented at the time when the pleadings was originally filed. The cautious approach of the Court in such matters becomes further fortified in view of section 22 of the Limitation Act, whereunder a suit against an added party is treated to have been instituted only on the date on which such party is impleaded. What cannot be brought within limitation upon addition of a party in the suit cannot be permitted to be so without even impleading the party concerned. Many of the proposed amendments in the present case pertained to such parties against whom ex facie the suit of the plaintiff may have become barred by time, and that. benefit apparently enuring to their successors-in-­interest, it my have amounted to stretching the provision in rule 17 of Order VI, C.P.C., too far when the trial Court allowed the amendments on the purported plane of such having the potential to serve the interests of justice, a conclusion plainly not borne out from the; record. The plaintiff having been a civil servant appeared at least to have acted indiscreetly in the way in which he dealt with the properties involved in these proceedings.

Raja Qureshi, Advocate Supreme Court and Naraindas C. Motiani, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th September, 1999.

2000 S C M R 400

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Sh. Riaz Ahmed

and Kamal Mansur Alam, JJ

GUL KHAN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.40 of 1994, decided on 11th October, 1999.

(On appeal against the judgment, dated 24-9-1991 of the Lahore High Court, Lahore in Cr.A. No. 368 of 1989 and M. R. No. 112 of 1989).

(a) Penal Code (XLV of 1860)---

----S.302/34-----Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider as to whether the Courts below had correctly followed the principles governing appraisal of evidence as laid down by Supreme Court.

(b) Penal Code (XLV of 1860)------

----S.302/34---Appraisal of evidence---Wife of the deceased was a natural witness of the occurrence whose presence at the spot could not be doubted as after hearing the hue and cry she came out of the house and saw the occurrence---Other eye-witness who was son of the deceased was having stamp of injuries on his person which could not be self-inflicted and his version as to the manner in which he and his father had received injuries was not open to any doubt---Absence of individual role in the F.I.R. could not destroy the testimony of the complainant which was corroborated by the version of other injured eye-witness---Defence version as to the gambling and' the quarrel between the deceased and his gambler associates did not appeal to reason because had it been true, the complainant and her son would have named them---Acquittal of two co-accused could not destroy the prosecution case against the accused as the concept of "falsus in uno falsus in omnibus" was not known to jurisprudence in Pakistan---Injuries sustained by the deceased were not the result of single shot---Motive for the occurrence being weak accused did not deserve death penalty---Conviction and sentence of accused were upheld in circumstances.

(c) Penal Code (XLV of 1860)---

---S.302/34---Criminal Procedure Code (V of 1898),S.154---First information report ---F.I.R. is not a substantive piece of evidence as it only sets the law into motion ---F.I.R., no doubt, is an important piece of evidence, but the absence of individual role in it would not make its maker as liar if otherwise such witness is proved to have seen the occurrence.

Malik Muhammad Jehanzeb Tamman, Advocate Supreme Court for Appellants.

Ainul Haq, Advocate Supreme Court for the State.

Date of hearing: 11th October, 1999.

2000 S C M R 406

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J, Irshad Hasan Khan, Raja Afrasiab Khan, Muhammad Bashir Jehangiri, Nasir Aslant Zahid, Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

ABDUL ZAHIR and another---Appellants

versus

THE STATE---Respondents

Criminal Appeals Nos.299 to 301 of 1997, heard on 15th October, 1999.

(On appeal from the judgment, dated 24-4-1997 of the High Court of Balochistan, Quetta, passed in Criminal Appeal No. 131 of 1996, Criminal Revision No.38 of 1996 and Criminal Acquittal Appeal No.161 of 1996 respectively).

(a) Penal Code (XLV of 1860)---

----Ss.302(c) & 324---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to re-appriase the evidence for considering the questions whether the acquittal of one accused and conviction of two other accused in the case was justified, if the conviction of the said two accused was justified on record whether the offence made out fell under S. 302(b), P.P.C. and not under S.302(c), P.P.C. and if such proposition was answered in the affirmative whether the imprisonment for life as Tazir was to be awarded to the aforesaid two accused.

(b) Penal Code (XLV of 1860)---

----Ss.302(c) & 302(b)---Punishment of Qatl-i-Amd------Application and scope of Ss.302(c) & 302(b), P.P.C. expounded.

Prima facie the cases covered by clause (c) of section 302, P.P.C. are of Qatl-i-Amd: (1) where according to the Injunctions of Islam the punishment of Qisas is not applicable but not falling within the ambit of section 306, P.P.C. punishable under section 308, P.P.C.; (2) Qatl-i-Amd to which clause (b) of section 302, P.P.C. is attracted, namely, Qatl-i-Amd wherein proof in either of forms specified in section 304, P.P.C. is not available is punishable with death or imprisonment for life, by way of Tazir. The use of the word 'or' at the end of clause (b) of section 302, P.P.C. reinforces this interpretation. In other words, it is a class of Qatl-i-Amd which is not punishable with death as Qisas or death or imprisonment for life by way of Tazir but is liable in the matter of punishment to imprisonment of either description for a term which may extend to twenty-five years.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Abdul Haque v. The State and another PLD 1996 SC 1 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

(c) Penal Code (XLV of 1860)---

----Ss.302(c) & 302(b)---Appraisal of evidence---Motive in the case was that about a year prior to the occurrence a brother of the complainant and the deceased on the one hand and nephew of the absconder on the other hand had a quarrel inter se wherein the latter had been seriously injured, which was neither a case of "sudden" nor of a "grave" provocation---Trial Court, therefore, had seriously erred in convicting the accused under S.302(c), P.P.C. and awarding sentence of 14 years' R.I.---High Court similarly was not justified to have maintained the said conviction and sentence---Conviction and sentence of accused under S.302(c), P.P.C. were consequently set aside and they were convicted under S.302(b), P.P.C. and sentenced to imprisonment for life in circumstances.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Abdul Haque v. The State and another PLD 1996 SC 1; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Abdur Rauf v. The State and 2 others 1998 SCMR 1771 and Muhammad Mumtaz Khan v. The State 1999 SCMR 837 distinguished.

Gul Hasan's case and Article written by Prof. Rafi Ullah Shehab in daily "The Nation" dated 20th August, 1999 ref.

(d) Penal Code (XLV of 1860)---

----S.302(c)---Punishment for Qatl-i-Amd------Grave and sudden provocation--­All cases of grave and sudden provocation would not ipso facto fall within the purview of S.302(c), P.P.C. particularly those of Qatl-i-Amd of wife, sister or other very close female relatives at the hands of males on the allegation of "Siah kari".

Gul Hasan's case and Article written by Prof. Rafi Ullah Shehab in daily "The Nation" dated 20th August, 1999 ref.

Sardar Muhammad Aslam, Advocate Supreme Court, M.W.N. Kohli, Advocate-on-Record (absent) for Appellants (in Criminal Appeal No. 299 of 1997).

Raja Abdul Ghafoor, Advocate Supreme Court for the State. (in Criminal Appeal No. 299 of 1997).

Mehta K.N. Kohli, Advocate-on-Record for Appellant (in Criminal Appeal No.300 of 1997).

Sardar Muhammad Aslam, Advocate Supreme Court for Respondents (in Criminal Appeal No.300 of 1997).

Mehta K.N. Kohli, Advocate-on-Record for Appellant (in Criminal Appeal No.301 of 1997).

Sardar Muhammad Aslam, Advocate Supreme Court for Respondents (in Criminal Appeal No.301 of 1997).

Date of hearing: 15th October, 1999.

2000SCMR418

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Sh. Ijaz Nisar and Sh. Riaz Ahmed, JJ

Messrs M.E.F.T. PAKISTAN (PVT.) LTD. ---Petitioner

versus

UNITED BANK LIMITED, KARACHI, ISLAMABAD---Respondent

Criminal Original Petition No. 6 of 1995, decided on 18th June, 1999.

(Petition for contempt under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 and Contempt of Court Act, 1976).

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court---Allegation of breach of Supreme Court order---Procedure for disposal for the vehicles imported under Yellow Cab Scheme had been clearly indicated in the order of Supreme Court under reference---Petitioners, if wanted to take delivery of the 141 vehicles, were required to pay the balance of the 90% price of these vehicles besides settling other dues mentioned in the said order of the Supreme Court, breach of which was alleged against the respondents---Record, however, did hot show that the petitioners offered to pay 90% balance price in addition to other dues and demurrage etc. in respect of the disputed 141 vehicles but respondents declined to accept the same and offer delivery thereof to the petitioners--­Said vehicles were re-exported out of Pakistan at the instance of the principal of petitioners as their balance price was not paid to them---Action on the part of Ministry of Commerce to have allowed re-export of the said vehicles, no doubt, was not in accordance with the judgment of Supreme Court, but admittedly no effort was made by the concerned parties to make payment of the balance price of these vehicles in terms of the order of Supreme Court--­Keeping in view the fact that the supplier/principal of the petitioners could not wait indefinitely for payment of the balance price of these vehicles, re-­export thereof, in circumstances, could not be treated as breach of the Supreme Court's order---Even otherwise, petitioners themselves having confined their claim for damages arising out of export of these 141 vehicles, could not turn around now and ask for initiating contempt proceedings against the respondents---Petitioners having already lodged their claim for damages against the respondents in the appropriate Court, could not ask for initiation of contempt proceedings against the respondents on the same facts---Contempt application was dismissed accordingly.

Aziz A. Munshi, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

M. Bilal, Senior Advocate Supreme Court for State Bank of Pakistan.

Date of hearing: 18th June, 1999.

2000 S C M R 423

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Abdur Rehman Khan

and Kamal Mansur Alam, JJ

HAIDER ZAMAN and others---Appellants

versus

SULEMAN and others----Respondents

Criminal Appeals Nos.89, 90, 91, 92 and 123 of 1996, decided on 12th November, 1999, (On appeal from the judgment/order, dated 21-6-1995, of the Peshawar High Court, Abbottabad Bench, Abbottabad, passed in Criminal Revision No. 18 of 1994, and Criminal Appeals Nos.22 and 28 of 1994).

(a) Penal Code (XLV of 1860)---

----Ss.302/34, 326 & 324---Constitution of Pakistan (1973), Art.185(3)--- Leave to appeal was granted by Supreme Court to consider whether High Court had correctly analysed the evidence in accordance with the principles governing the safe dispensation of criminal justice and, had derived proper conclusions by appreciating evidence on record in its proper perspective.

(b) Penal Code (XLV of 1860)---

----Ss.302/34, 304, Part I, 326 & 324---Appraisal of evidence---True facts had been suppressed both in the F.I.R. and the private complaint and each party had tried to throw the burden on the shoulders of the other---Injuries suffered by the injured persons were not explained in the challan case while in the complaint the factum of the death of the deceased was completely missing---Motive set up by both the parties in the complaint case and in the police challan case was totally different and had no nexus whatsoever with each other---Both the parties had a chance encounter and a free fight had ensued between them making the participants individually liable for the part played by each one of them---Conviction of two accused under S.302/34, P.P.C. was consequently altered to S.304, Part I, P.P.C. and they were sentenced to 10 years' R.I. each thereunder---Convictions and sentences of other two accused under Ss.326 & 324, P.P.C. were, however, maintained.

Raja Muhammad Bashir, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Appellant (in Crl.As.Nos.89 and 90 of 1996).

Sardar Muhammad Ishaq Khan, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos. l to 3 (in Crl.As. Nos.89 and 90 of 1996).

Malik Manzoor Hussain, Addl. A.G. for the State (in all Cases).

Sardar Muhammad Ishaq Khan, Advocate Supreme Court with Ejaz Muhammad Khan. Advocate-on-Record for Appellants (in Crl. As. Nos.91 and 92 of 1996).

Mehr Khan Malik, Advocate-on-Record for Appellant (in Cr1.A.No.123 of 1996).

Date of hearing: 12th November, 1999.

2000 S C M R 428

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Abdur Rehman Khan, JJ

NOOR HUSSAIN ---Petitioner

versus

BASHIR AHMAD and another---Respondents

Civil Petition No. 1299 of 1999, decided on 9th December, 1999.

(On appeal from the judgment, dated 6-9-1999, of the Lahore High Court, Rawalpindi Bench, passed in Civil Revision No.241 of 1981 treated as R.S.A. No .162 of 1983).

Punjab Pre-emption Act (I of 1913)---

----S.21---Civil Procedure Code (V of 1908), O.XX, R. 14---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit---Transfer of suit land as a result of decree---Trial Court dismissed suit on the ground that transfer of decretal rights was not a sale, therefore, was not pre-emptible---Validity--­Decree-holder, after deposit of purchase money; had become complete owner of the land decreed in his favour and the transfer by him of his rights under the decree was nothing but sale of land of which he had become owner--­Such a transfer was rightly found as a sale and pre-emptible by the Lower Appellate Court as well as the High Court---Supreme Court declined to interfere in the order of High Court---Leave to appeal was refused accordingly.

Laskhari Mal v. Ishar Singh and another 94 PR 1902 and Shams-ud-­Din v. Ghulam Hassan and others 42 PR 1917 distinguished.

Inzar Gut Said Anwar and another v. Hajab Gut Taza Gut and others AIR 1941 Pesh. 26 ref.

Abdul Karim Khan Kundi, Advocate Supreme Court for Petitioner.

M. Younis Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 9th December, 1999.

2000 S C M R 431

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Wajihuddin Ahmed, JJ

ANWAR ZAMAN and 5 others---Appellants

versus

BAHADUR SHER and others---Respondents.

Civil Appeal No.859 of 1994, decided on 17th November, 1999.

(On appeal from the judgment dated 9-1-1993 passed by the Peshawar High Court in Revision No.474 of 1984).

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

-----S.115---Constitution of Pakistan (1973), - Art.185(3)---Revision--- Concurrent findings of two Courts below---Leave to appeal was granted by Supreme Court to consider whether in exercise of jurisdiction under S.115 of C.P.C. High Court was legally justified to interfere in the concurrent findings of facts of two Courts below as regards rejection of sale-deed based on finding that the same was also not a genuine document---Such findings of Trial Court and Lower Appellate Court were based on elaborate, careful and correct appraisal of evidence and did not suffer from any misreading---Such findings could not legally be interfered with under S.115 of C.P.C.--­Judgment of High Court was set aside and those of the two Courts below restored.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of facts by lower Courts---Interference with such findings of facts by High Court in exercise of jurisdiction under S.115, C.P.C.---Scope---Where the two Courts below had given strong reasons for raising inferences against genuineness of the documents on the basis of all attending circumstances and those Courts were justified in raising those inferences, even if the High Court had formed its own opinion different from the Courts below, such findings of facts could not have been interfered with unless strong reasons had been given to reject such inferences---Different view on reappraisal of evidence, could not be a ground for interference with such findings of facts of the two Courts below in exercise of jurisdiction under 5.115, C.P.C. by High Court.

Mian Younis Shah, Senior Advocate Supreme Court for Appellants.

Mian Hisamuddin, Advocate Supreme Court for Respondents.

Date of hearing: 17th November, 1999.

2000SCMR435

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ, Raja Afrasiab Khan

and Nasir Aslant Zahid, JJ

Raja JEHANDAD ARMED---Appellant

versus

CENTRAL BOARD OF REVENUE and 2 others---Respondents

Civil Appeal No.559 of 1998, decided on 17th November, 1999.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 20-8-1996 in Appeal No. 20-L of 1996).

Constitution of Pakistan (1973)---

----Art.212(3)---Civil service---Removal from service---Where charges were admitted by appellant in his written reply and a penalty of removal from service was imposed which could lawfully be awarded, it was not a case involving any substantial question of law of public importance---Appellant failed to show that in confirming the punishment, Service Tribunal had acted perversely or arbitrarily---Appeal being without merit was dismissed accordingly.

Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record (absent) for Appellant.

Ch. Muhammad Aslam Chattha, Advocate-on-Record for Respondents

Date of hearing: 17th November, 1999

2000 S C M R 440

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Abdur Rehman Khan, JJ

NAZIR AHMED and another---Appellants

versus

MUHAMMAD DIN and another---Respondents

Civil Appeal No.774 of 1995, decided on 3rd November, 1999

(On appeal from the judgment, dated 22nd December, 1993, of the Lahore High Court, Lahore, passed in R.S.A. No.82 of 1974).

(a) Qanun-e-Shahadat (10 of 1984)---

---Art. 114---Estoppel---Referee was appointed with the consent of the parties and the Trial Court decided the suit in the light of the statement of that referee---Lower Appellate Court as well as High Court maintained decision of the Trial Court---Appellant challenged the effectiveness and binding nature of the statement of referee---Validity---Where appellant appointed such referee with his own free consent for the decision of the matter in issue and agreed that whatever decision referee would give that would be binding on him and he would not challenge its validity, and appellant failed to challenge the statement of that referee either by way of cross-examination or through written objection petition, then it was obvious that by his conduct the appellant could not be allowed to raise any objection to such decision---Appellant was estopped to challenge the effectiveness and binding nature of the statement of such referee---Supreme Court declined to interfere with the conclusion reached by the High Court.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 distinguished.

(b) Administration of justice--

---- Technicalities, no hurdles to be created in way of substantial justice--­Where a party is allowed to take shelter under certain legal technicalities, it will be placing premium on blowing hot and cold in one breath.

Syed Tanseer Ashgar, Advocate Supreme Court for Appellants.

Ch. Arshad Mehmood, Advocate Supreme Court for Respondents Nos. l and 2.

Date of hearing: 3rd November, 1999

2000 S C M R 443

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ, Raja Afrasiab Khan

and Nasir Aslam Zahid, JJ

Mrs. HAMIDA QURESHI---Appellant

versus

SECRETARY, MINISTRY OF POPULATION WELFARE, GOVERNMENT OF PAKISTAN Rawalpindi and 2 others---Respondents

Civil Appeal No.421 of 1997, decided on 17th November, 1999.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 25-8-1997 passed in Appeal No.360(R) of 1997).

Constitution of Pakistan (1973)----

---'-Art. 212(3)---Civil service---Retirement on medical grounds ---Re­appointment into service after retirement on medical grounds---Civil servant was declared to be incapacitated for future service by Medical Board and she was retired from service---Civil servant after about eight years of such retirement applied for her reinstatement in service on the ground that she had regained her health and as such was fit to do her official duties---Department refused to reinstate her as earlier the Medical Board had found her to be permanently unfit for further Government service---Service Tribunal upheld the decision of department in appeal filed by civil servant ---Validity--­Service Tribunal dismissed appeal after perusal of material available on record---Civil servant failed to point out any substantial question of law involved in the case---Supreme Court refused to interfere in the order of the Service Tribunal.

Divisional Superintendent, Post Office v. Rehman Khan PLD 1994 SC 647 distinguished.

Muhammad Siddique Qureshi, Advocate (husband) .for Appellant.

Mansoor Ahmad, Deputy Attorney-General with Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 17th November, 1999.

2000 S C M R 448

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ

FAZALUR REHMAN alias PESHAY KHAN---Appellant

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.57-L of 1998, decided on 12th April, 1999.

(On appeal against the ,judgment and order dated 8-12-1997 of the Lahore High Court in Cr.A. No. 154 of 1989 and M. R. 68 of 1989).

Penal Code (XLV of 1860)---

-- S.302/307---Constitution of Pakistan (1973), Art. 185(3)---Ocular testimony furnished by prosecution witnesses was consistent and they had corroborated each other on all material aspects of prosecution case and said witnesses were held as truthful witnesses---Evidence on record had proved that accused armed with a pistol reached at the scene of occurrence and had fired two fatal shots on the deceased, one on temporal region and other at abdomen of deceased---Close range shots proved that same were fired with intention to murder the deceased---Presence of eye-witnesses on the scene of occurrence, who also received injuries, could not be doubted---Version of said eye-witnesses rang true and despite searching cross-examination, accused had failed to elicit anything on record to show that they 'were not present at the spot and had not seen the occurrence---Motive and medical evidence had also corroborated ocular testimony ---Abscondence of accused had also gone a long way to prove his guilt---Conviction of accused being justified and no case for interference by Supreme Court having been made out, petition for leave to appeal was dismissed.

Gull Hasan v. The State PLD 1969 SC 89; Muhammad Bashir v. The State 1970 SCMR 354; Muhammad Rafiq v. The State PLD 1974 SC 65 and Aminullah v. The State PLD 1976 SC 629 ref.

Ijaz Hussain Batalvi, Senior Advocate Supreme Court and Muhammad Aslam Chaudhri, Advocate-on-Record for Petitioners.

Ch. Muhammad Tariq Ras, Advocate Supreme Court and Mian Ataur Rehman, Advocate-on-Record for the State.

2000SCMR453

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Sh. Ijaz Nisar, JJ

MUHAMMAD YOUSAF---Petitioner

versus

THE STATE and others---Respondents'

Civil - Petition for Leave to Appeal No. 1883-L of 1999, decided on 3rd December, 1999.

(On appeal from the judgment/order dated 6-10-1999 of the Lahore High Court, Lahore, passed in I.C.A. No.805/99).

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 173---Re-investigation of criminal case after submission of challan---Validity---Son of petitioner died in police custody and it was alleged by petitioner that death was caused due to torture by police--­Petitioner got a case registered against police officials responsible for the incident---Investigation Agency was not submitting challan in the Trial Court under S.302, P.P.C.---Supreme Court directed the Investigating Agency to complete the re-investigation and submit its report to the Trial Court within a period of four weeks---Trial Court was further directed to wait for the second report and should proceed on the receipt of the same in accordance with law and if second investigation report was not submitted in time specified by Supreme Court, Trial Court could proceed with trial on the basis of the First Investigation Report---No legal bar existed on re-investigation of case even after submission of final report under S.173, Cr.P.C. and police could carry out fresh investigation and submit its report to the Court.

Ata Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others PLD 1965 (W.P.) Lah. 734 fol.

Mirza Masud-ur-Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record (absent) for Petitioner.

Aziz Ahmad Chaughtai, Advocate Supreme Court and Sohail Khan, Personal Staff Officer to I.-G.P., Punjab for the State.

Afzal Haider, Advocate Supreme Court for Respondent No-5.

Date of hearing: 3rd December, 1999.

2000 S C M R 456

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Wajihuddin Ahmed, JJ

UNICHEM CORPORATION (PVT.) LIMITED and 4 others---Appellants

versus

Mst. KHURSHEED ISMAIL and 3 others---Respondents

Civil Appeal No. 1134-K of 1995, decided on 18th November, 1999.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 2-11-1995 in J.M. Nos. 4/89 and 68/89).

Constitution of Pakistan (1973)---

----Art. 187---Companies Ordinance (XLVII of 1984), Ss.297 & 333--- Application for withdrawal of appeal before Supreme Court Maintainability---Held, it was prerogative of the Court, when a case had partly been heard, to allow or not to allow, withdrawal of the proceeding unilaterally at the instance of one of the parties---Even otherwise, irrespective of the nature of proceedings, such an order could be withheld by the Court, if the ends of justice so required---Where, however, the High Court order under appeal directing liquidation of the company was comprehensive enough catering for all eventualities and where ends of justice could be fully secured by allowing the Official Liquidator to gave effect to the High Court findings, in letter and spirit, no need. would arise for withholding the order of withdrawal of the appeal, sought by appellants--­Supreme Court, before acceding to the request of appellants pointed out relevant aspects in details, so as to identify broadly the consequences, which should flow as a result of withdrawal of the appeal.

K.A. Wahab, Advocate-on-Record for Appellants.

Hamid Khan, Advocate Supreme Court for Respondents.

Dates of hearing: 11th, 12th and 18th November, 1999.

2000 S C M R 460

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan, Munir A. Sheikh

and Wajihuddin Ahmed, JJ

SALEEM-UD-DIN and another---Appellants

versus

MUNICIPAL COMMITTEE, TANDO ALLAHYAR through

Administrator and 5 others---Respondents

Criminal Appeal No. 168 of 1996, decided on 5th November, 1999.

(On appeal from the judgment/order dated 29-5-1996 of the High Court of Sindh, Circuit Court at Hyderabad passed in C.M.A. No. 810 of 1995 in C.P. No.D-356 of 1995).

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

----O. XXXIX, Rr.1, 2 & 3---Constitution of Pakistan (1973), Art.199--­Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Punishment for violation of order passed by High Court for maintenance of status quo with order that accused be detained in prison for a term of six months until they demolished the unauthorised construction themselves and pay compensation to the tenants, if any--­Validity---High Court was empowered to issue temporary injunction in such proceedings under O.XXXIX, Rr.1 & 2, C.P.C. and also vested with the power to impose penalty under O.XXXIX, Rr.2 & 3, C.P.C. for violation thereof.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

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

----Ss. 104 & 106, O.XXXIX, Rr.l, 2, 3 & O.XLIII, R.I(r) --- Constitution of Pakistan (1973), Arts.185 & 175---Appeal to Supreme Court--­Competence---Punishment for violation of order passed by High Court for maintenance of status quo with order that accused be detained in prison for a term of six months until they demolished the unauthorised construction themselves and pay compensation to the tenants, if any---Supreme Court was vested with the jurisdiction to entertain and hear appeals provided under any law.

Section 104, C.P.C. read with Order XLIII, Rule 1(r), C.P.C. provides that appeal lies against such an order and by virtue of section 106, the same would lie before the Court where the appeal in case of decree of the Court passing the order would be competent, as such the appeal before Supreme Court is maintainable against the order of High Court against the punishment awarded to accused who had violated status quo ordered by the High Court Apart from Article 185 of the Constitution, by virtue of Article 175 of the Constitution, Supreme Court is vested with the jurisdiction to entertain and hear appeals provided under any law.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

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

----O.XXXIX, Rr. 1, 2 & 3---Constitution of Pakistan (1973), Art.185--­Violation of status quo ordered by the High Court was proved---Accused apologized and in order to establish their bona fides and good faith and to show respect for the Court were ready to demolish the construction raised in violation of the order at their own expenses under the supervision of the Municipal Corporation and settle the matter of payment of compensation, if any, to the tenants in case the said tenants claimed same and prayed that the direction to keep them in civil prison be set aside---In order to give opportunity to the accused persons to establish their bona fides of the plea that they had respect for the Court, Supreme Court accepted the offer and ordered that the direction of the High Court be held in abeyance till such time the accused demolished the construction raised in violation of the interim order of the High Court.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

Abdul Rahim Kazi, Advocate Supreme Court and Naraindas C. Motiani, Advocate-on-Record for Appellants.

Raja Abdul Ghafoor, Advocate Supreme Court for Advocate­General, Sindh, Munir Ahmad Peracha, Advocate Supreme Court and Ejaz Muhammad Ch., Advocate-on-Record for Respondents.

Date of hearing: 5th November, 1999.

2000 S C M R 467

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Wajihuddin Ahmed, JJ -

MUHAMAMD HAYAT and another---Petitioners

versus

BADAR ABBAS alias BADRI and another---Respondents

Criminal Petitions Nos. 125, 127 and 128-L of 1999, decided on 18th November, 1999.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 8-4-1999 passed in Cr.A.No.158 of 1996).

(a) Penal Code (XLV of 1860)---

----Ss.302(b), 449 & 324---Constitution of Pakistan (1973), Art. 185---Prosecution had established its case adequately---Defence, on the contrary, advanced contradictory versions which were rightly rejected High Court had given elaborate reasons to conclude about the kind of weapon used by the accused---Pertinent recoveries together with the testimony of the injured persons who appeared as prosecution witnesses, had lent due credence to the prosecution version---All that had been urged from the side of defence involved questions of fact out of which particular emphasis was laid on the averment to the accused was a minor at the time of the incident---No documentary material in support of such averment was2 produced nor the elaborate dissertation. in which the accused indulged while being questioned under 5.342, Cr.P.C. would suggest an immature or a raw mind/age--­Supreme Court declined interference with the concurrent finding of High Court and Trial Court

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

----Ss.382-B & 544-A---Penal Code (XLV of 1860), Ss.302(b), 449 & 324--­Accused was directed by High Court to pay a certain amount to the legal heirs of the deceased by way of compensation and it was further directed that in the event he failed to do so he shall not be accorded the benefit of S.382-B, Cr.P.C.---Validity---Grant of benefit under S.382, Cr.P.C. had no nexus whatever with paying up any fine or even compensation in terms of 5.544-A, Cr.P.C.---Supreme Court excised the condition put by the High Court and directed that if accused failed to pay the awarded compensation, such would be recovered as arrears of land revenue, beside the accused would suffer imprisonment for an additional period of six months and grant of benefit of 5.382-B, Cr.P.C. having already been granted by the High Court, would continue to subsist.

Ch. Muhammad Iqbal, Advocate Supreme Court for Petitioner (Cr.P. No. 125-L of 1999).

Malik Rab Nawaz Noon, Advocate Supreme Court (in Cr.Ps. Nos. 127 and 128-L of 1997).

Ghulam Haider Ghazali, Addl. A.-G. for Respondents. (in all the Petitions).

Date of hearing: 18th November, 1999.

2000 S C M R 472

[Supreme Court of Pakistan]

Present: Saiduzzaman Saddiqui, C. J., Nasir Aslam Zahid

and Mamoon Kazi, JJ

HABIB BANK LIMITED---Petitioner

versus

ZELINS LIMITED and another---Respondents

Civil Petitions Nos.206-K and 243-K of 1999, decided on 31st December, 1999.

(On appeal from the judgments dated 4-2-1999 and 6-2-1999 of the Sindh High Court passed in F.R.As. Nos.928 and 930 of 1987).

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

-----S.15---Ejectment application---Maintainability---Tenants of a Bank--­Filing of ejectment proceedings against the tenant of the Bank was not a matter covered by the day to day routine business of the branch of the Bank---Decision to file ejectment applications against the tenants of the Bank on the ground of personal requirement, subletting, nuisance, etc., therefore, was not a routine matter included in the day to day business of the branch of the Bank---Manager of the concerned branch of the Bank could not be considered in law to possess requisite authority to prosecute such ejectment cases the way he could competently pursue the day to day business of the branch of the Bank---If objection was raised about the competence of the Officer of the Bank instituting the ejectment proceedings against the tenants of the Bank, burden fell upon the Bank to establish that the person instituting the ejectment proceedings was authroised by the Bank in that behalf---Where such burden was not discharged by the Officers of the Bank, at any stage of the proceedings, view taken by High Court and the Rent Controller that the application for ejectment in circumstances were not maintainable was unexceptionable.

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

----S. 15----Ejectment applications---Maintainability---Rent Controller had found that ejectment applications were not maintainable but decided the issues relating to merit---Contention was that if the Rent Controller had found the ejectment application as non-maintainable he should not have decided other issues on merits---Validity---Rent Controller, in fact, had not found that he had no jurisdiction in the cases, what he had held was that it had not been established that persons instituting the cases had requisite authority---Evidence of the parties having been recorded, Rent Controller, in circumstances, was not debarred from dealing with the issues relating to merits of the cases.

Messrs Muhammad Siddique Muhammad Umer v. Australasia Bank Limited PLD 1966 SC 684 and Zamindar Cooperative Housing Society v. National Bank of Pakistan 1982 CLC 1276 ref.

A.R. Akhtar, Advocate Supreme Court/Advocate-on-Record for Petitioner (in both Petitions).

Nemo for Respondents (in C.P. No.206-K of 1999). Respondent in person (in C.P.No. 243-K of 1999).

Date of hearing: 31 st December, 1999.

2000 S C M R 477

[Supreme Court of Pakistan]

Present: Ajmal Mian, CJ, Sh. kiaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD ASHRAF and others---Appellants

versus

FEDERATION OF PAKISTAN through Secretary, Ministry

of Railways, Islamabad and others---Respondents

Civil Appeals Nos. 1945 to 1996 of 1998, heard on 4th March, 1999.

(On appeal from the judgment, dated 5-6-1998 of the Federal Service Tribunal in Appeals Nos. 1105(L) of 1997 to 1156(L) of 1997).

(a) Pakistan Railways Personnel Manual---

---- Para. (H)---Constitution of Pakistan (1973), Art.212(3)---Claim of premature increment on the basis of up gradation of posts from BPS-8 to BPS-11---Validity---Leave to appeal was granted by Supreme Court to consider whether in view of the judgment of Supreme Court in cases of Pakistan Railways v. Shaukat Ali Hamdandi and others 1996 PLC 595 and Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 the Pakistan Railways was justified to reject the employees' claim for one premature increment.

Pakistan Railways v. Shaukat Ali Hamdani 1996 PLC 595 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

(b) Pakistan Railways Personnel Manual---

---- Para. (H)---Claim of premature increment on the basis of up gradation of posts from BPS 8 to BPS I1---Validity---Premature increment was payable in cases of promotion from a lower to a higher post under para.(H) of tote Pakistan Railways Personnel Manual---Where the post was upgraded for all the incumbents, same could not be treated as "promotion" in terms of para.(H) of the Manual---Claim of premature increment in circumstances was therefore, not justified.

Pakistan Railways v. Shaukat Ali Hamdani 1996 PLC 595; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Government of the Punjab through Secretary, Services Punjab, Lahore v. Muhammad Awais Shahid 1991 SCMR 696 ref.

Pakistan Railways v. Labour Appellate Tribunal and others C.A No.849 of 1990 and Pakistan Railway v. Authority under the Payment of Wages Act, N.-W.F.P. and others C.A.No.850 of 1990 applied.

Muhammad Ashraf, Appellant (in I.C.A. 1945 of 1998 for himself and on behalf of other Appellants).

M. Aslarn Sandhu, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No.2.

Date of hearing: 4th March, 1999.

2000 S C M R 485

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Abdur Rehman Khan, JJ

SHAHZADA AYYAZ---Appellant

versus

Mst. ZAINAB BIBI---Respondent

Civil Appeal No.977 of 1995, decided on 3rd November, 1999.

(On appeal from the judgment, dated 16th May, 1994, of the Lahore High Court, Lahore, passed in S.A.O. No.42 of 1994).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(3)(a)---Constitution of Pakistan (1973), Art.185 (3)---Bona fide personal need of landlord---Requirements---Landlady owned 12 shops out of which four were lying vacant when she tiled application for ejectment of the tenants from the shop---Leave to appeal was granted by Supreme Court to consider whether, in circumstances, the tenant could have been ejected from the shop on the ground of bona fide personal need and further to examine whether the law laid down by the superior Courts on the subject had been followed properly.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----

----S. 13(3)(a)---Bona fide personal need of landlord---Choice to occupy a particular shop could not be denied provided the landlord proved that he had no other shop suitable for his business and that the shop in question would suit his requirement and he required the same in good faith for his own occupation---If the tenant was unable to prove the occupation of any other shop by the landlord sufficient for his requirement, then he could not be allowed to say that the landlord should occupy a shop other than the one in his possession.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Syed Abdul Rauf v. Abdul Sattar 1997 SCMR 1169; Mahmood Khan v. Nasima Khatoon 1982 CLC 1807 and Shaikh Shafaul Haque v. Qaiser Shaikoh Jafri 1982 CLC 722 distinguished.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Ch. Muhammad Aslam Chaudhry, Advocate-on-Record for Appellant.

Muhammad Ghani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent.

Date of hearing: 3rd November; 1999.

2000SCMR489

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J., Nasir Aslam Zahid

and Abdur Rehman Khan, JJ

Syed FAZAL-E-MAHBOOD---Petitioner

versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD

and others---Respondents

Civil Petition No, 1732 of 1999, decided on 29th November. 1999.

(On appeal from the judgment, dated 11-11-1999 of Lahore High Court, Lahore in W. P.No.13420 of 1999).

(a) Agricultural Development Bank of Pakistan Ordinance (IV of 1961)_--

----S.10---Notification of appointment of Chairman of the Bank under S.10, Agricultural Development Bank of Pakistan Ordinance, 1961---Validity--­Allegation that the person appointed as Chairman of the Bank through said notification was not a suitable person to have been appointed on account of his illegal and improper activities in the discharge of his duties as Chairman, could not be a valid ground for challenging the vires of the notification of his appointment---If after becoming Chairman of the Bank in discharge of his duties/functions the person had acted in any illegal or improper manner, said actions of the appointee, could not ipso facto affect the legality of his appointment---Concerned Authorities could always take requisite action against the appointee under the law.

Shahid Islam v. N.I.R.C. PLD 1966 Lah. 615 distinguished.

(b) Agricultural Development Bank of Pakistan Ordinance (IV of 1961)--

----S.10---Habib Bank Limited Staff Service Rules. 1981---Appointment of Chairman of Agricultural Development Bank of Pakistan by a notification under S.10, Agricultural Development Bank of Pakistan Ordinance, 1961 of a person who at the relevant time was on leave preparatory to retirement while in service of Habib Bank Ltd.---Validity---Nothing was available on record to show that Habib Bank Limited had not given consent for such appointment---No embargo. however, existed on the Competent Authority to appoint such person as Chairman of the Agricultural Development Bank of Pakistan while exercising power under S.10 of the Ordinance,--Rule 100, Habib Bank Ltd. Staff Service Rules, 1981 which provided that employee of the Habib Bank could not accept employment or office of profit during leave, therefore, could not render invalid the appointment of the appointee as Chairman of Agricultural Development Bank of Pakistan made by the Competent Authority under S.10 of the Ordinance---Mere fact that the appointee stood retired on reaching the age of super annuation while being on leave preparatory to retirement with Habib Bank Ltd., could not affect his appointment as Chairman of the Agricultural Development Bank of Pakistan by the Competent Authority under S.10 of the Ordinance and there was no need of a further order of his appointment by the Competent Authority after his retirement from Habib Bank Ltd.

Shahid Islam v. NIRC PLD 1966 Lah. 615 distinguished.

(c) Civil service---

---- industrial dispute---Court proceedings---Except for those officers/employees who were parties to the proceedings, who may attend the Court with permission of the Competent Authority by taking leave, the practice of other officers/employees attending proceedings and that also without taking any leave from their institutions was strongly deprecated by Supreme Court.

S.M. Zafar, Senior Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court, Gul Zarin Kiani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Muhammad Ibahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos.5 and 6.

Mansoor Ahmed, Deputy Attorney-General (on Court's ,Notice) for the Federal Government and Respondents Nos. 1 and 2.

Date of hearing: 29th November, 1999.

2000 S C M R 498

[Supreme Court of Pakistan]

Present: Wajihuddin Ahmed and Kamal Mansur Alam, JJ

MUHAMMAD ASHRAF---Petitioner

versus

ISMAIL and 4 others---Respondents

civil Petition No.714-K of 1999, decided on 3rd January, 2000

(On appeal from the judgment, dated 15-9-1999 of the High Court of Sindh, Karachi in F.R.A. No.375 of 1992).

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

----S.15---Default in payment of rent---Allegation of payment of Pagri to the previous landlord by tenant---Adjustment of the arrears of rent against such amount of Pagri could not be claimed by the tenant when the property had already been sold to some other person and the new landlord could not by any stretch of imagination be made to suffer for the unlawful doings of others.

M.K Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 distinguished.

Shafaat Hussain, , Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 3rd January, 2000

2000 S C M R 501

[Supreme Court of Pakistan]

Present; Raja Afrasiab Khan and Sh. Ijaz Nisar, JJ

TANVEER SHAHID --- Petitioner

versus

SHAUKAT ALI and another---Respondents

Criminal Petition for Leave to Appeal No.355-L of 1999, decided on 1st December, 1999.

(On appeal from the judgment/order, dated 22-6-1999 passed in Cr. Misc. No.342-B of 1999).

Criminal Procedure Code (V of 1898)---

----S.497---Constitution of Pakistan (1973), Art.185(3)---Grant of bail on statutory ground by the High Court holding that accused was not a hardened, desperate or dangerous criminal---Validity---High Court having exercised its discretion in allowing bail to the accused on statutory ground holding that accused was not a dangerous, desperate or hardened criminal, Supreme Court declined interference and directed the Trial Court to conclude the trial within three months.

Rafiq Ahmad Bajwa, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-record for Petitioner.

Ch. Muhammad Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 1st December, 1999.

2000 S C M R 502

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munir A. Sheikh

and Wajihuddin Ahmed, JJ

MUHAMMAD KHALIL ---Petitioner

versus

MUHAMMAD ABBAS and 3 others---Respondents

Criminal Petition No.348-L of 1997„ decided on 3rd December, 1999.

(On appeal from the judgment, dated 7-5-1997 of the Lahore High Court, Lahore, passed in Cr.Rev. No.243.of 1987).

(a) Penal Code (XLV of 1860)---

----S.304 [unamended]---Constitution of Pakistan (1973), Arts. 187 & 185(3)---Sentence---High Court, though had reached the conclusion that the sentence passed by Trial Court was lenient when put in juxtaposition with the proved offence, but did not correct the error of Trial Court---Supreme Court, in order to do complete justice in the case, instead of remanding the case to High Court altered the sentence of seven years to life imprisonment while maintaining the remaining ancillary aspect---Petition for leave to appeal filed by complainant party, was converted into appeal by the Supreme Court and ordered accordingly---Convict, if in the meantime had been released he would be re-arrested and would serve the remaining sentence as altered by the Supreme Court.

(b) Constitution of Pakistan (1973)---

----Art.187---Supreme Court, under Art. 187 of the Constitution is conferred with all necessary powers to do complete justice in a case.

Ch. Muhammad Abdus Saleem, Advocate Supreme Court for Petitioner.

Malik Abdul Wahid, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

S.D. Qureshi, Advocate Supreme Court for the State

Date of hearing: 22nd November, 1999.

2000SCMR506

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

Messrs CANAL BREEZE COOPERATIVE HOUSING

SOCIETY LIMITED---Appellant

versus

AGRICULTI.IYAL AND TRANSPORT DEVELOPMENT

CORPORATION (PVT.) LIMITED---Respondent

Civil Appeal No. 1429 of 1996, decided on 8th December, 1999.

(On appeal from the judgment of Lahore High Court, Lahore, dated 17-1-1996 passed in R.F.A. No.252 of 1992).

(a) Cooperative Societies Act (VII of 1925)----

------S.23---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider question as to whether doctrine of indoor management ,was applicable to cooperative societies.

(b) Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact by Courts below---Interference by Supreme Court----Principles and conditions--­Concurrent findings of fact based on evidence could not be interfered with by Supreme Court in second appeal when it did not suffer from any misreading of evidence or non-consideration of the relevant piece of evidence on record.

(c) Cooperative Societies Act (VII of 1925)----

----S.23---Doctrine of Indoor Management---Applicability to Cooperative Societies---Principles---Doctrine of Indoor Management applied to the transaction entered into between a third party and a Cooperative Society registered under Cooperative Societies Act in the same manner as the doctrine applied to transactions between third parties and a company registered under the Companies Act, 1913 or Companies Ordinance, 1984.

The doctrine of indoor management was no doubt applied to a corporate entity like the registered company but there was no statutory provision. or a rule of law which could support the view that the doctrine of indoor 'management did not apply to a cooperative society registered under the Cooperative Societies Act, 1925.

The doctrine of indoor management is not applied to the transactions entered into between a registered company and a third party in good faith, on the basis of any statutory provision in the Companies Ordinance. This doctrine is applicable to such transaction on the principle of public policy, equity and good conscience, to protect an innocent person dealing in good faith with a corporate entity. Section 23 of the Act confers a corporate status on a society registered under the Act.

The corporate status conferred on a society registered under the Act is in no way different from the corporate status of a company registered under the provisions of the Companies Ordinance, 1984. The fact that a society may be registered under the Act with or without limited liability only if it has amongst its objects the promotion of the economic interest of its members in accordance with cooperative principles, is also no ground to exclude the application of the doctrine of indoor management to a transaction between a cooperative society and the third party. The doctrine of indoor management would be applicable to a cooperative society not because of its objects but because of its corporate status.

The doctrine of indoor management applies to the transactions entered into between a third party and a cooperative society registered under the Act in the same manner as it applies to transactions between third parties and a company registered under the Companies Act, 1913 or Companies Ordinance, 1984.

Pakistan Employees' Cooperative Housing Society Ltd. v. Anwar Sultana and others PLD 1969 Kar. 474; Muhammad Azim v. P.E.C.H.S. Ltd. PLD 1985 Kar. 481; Ramchandran v. Registrar of Cooperative Societies AIR 1963 Mad. 105; Taj Construction Co. v. Federation of Pakistan PLD 1982 Kar. 378 and Halsbury's Laws of England, Fourth Edn., Vo1.7 ref.

(d) Cooperative Societies Act (VII of 1925)---

----S.23---Avoidance of agreement of sale entered into between a Cooperative Society and a third party by the Society---Validity---No allegation was brought on record that said agreement was not a bona fide transaction or that same was the result of any fraud or manipulation on the part of the third party---Only objection raised in support of avoidance of the agreement of sale was that the agreement of sale was not later approved by the General Body of the Society and that the first resolution of the General Body authorising the President of the Society to enter into agreement of sale was not passed in accordance with the relevant bye-law of the Society--­Cooperative Society having utterly failed to substantiate any of the mentioned grounds, agreement entered by the President of the Society was rightly executed on behalf of the Society and grant of relief for specific performance was justified in circumstances.

Raja M. Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor , Advocate-on-Record for Appellant.

Shahid Hamid, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record (absent) for Respondent.

Date of hearing: 8th December, 1999.

2000 S C M R 519

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehmart Khan and Abdur Rehman Khan, JJ

MUHAMMAD ISHAQ and 2 others----Petitioners

versus

GHAFOOR KHAN and another---Respondents

Civil Petition No.723 of 1999, decided on 13th January, 2000.

(On appeal from the judgment, dated 15-2-1999 of the Peshawar High Court, Peshawar passed in Civil Revision No.534 of 1997).

West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Mutation---Genuineness---Once the authority and genuineness of the.sale transaction was established then mere irregularity' in the procedure regarding attestation 'of mutation would not affect the binding effect of the mutation ---[Hakim Khan v. Nazeer Ahmad Lughmani and others 1990 MLD 89 overruled].

In the present case all the possible evidence to prove the sale transaction covered by the impugned mutation had been proved which included the local commissioner who recorded the statements of the vendor, the two marginal witnesses who identified the vendor before the Local Commissioner and the Teshildar who attested the mutation. All the Courts had held this evidence as believable and free from defect. No flaw in the evidence of the said witnesses was brought on record. There was, thus, no justification to interfere in the agreed decision of all the Courts.

Therefore, the technical objection of non-compliance of section 42 of the Land Revenue Act, 1967 would not advance. the case that the statement of vendor lady was not recorded in Jalsa-e-Aam (common assembly) and, thus, entire proceedings in respect of mutation stood vitiated. Once the authenticity and genuineness of the sale transaction is established then mere irregularity in the procedure regarding attestation of mutation would not affect the binding effect of the mutation as no provision in the Land Revenue Act could be referred to which invalidated such transaction.

Hakim Khan v. Nazeer Ahmad Lughmani and others 1990 MLD 89 overruled.

Ghulam Ali and 2 others v. Mst. Sarwar Naqvi PLD 1990 SC 1 and Muhammad Isa Khan represented by Khalida Abid Khanam and others v. Muhammad Hussain Khan and others PLD 1954 SC 39 distinguished.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 ref.

Khalil Yousafzai, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 13th January, 2000.

2000SCMR522

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munir A. Sheikh

and Wajihuddin Ahmed, JJ

MUHAMMAD RAMZAN through Ashiq Muhammad

and others ---Appellans

versus

PIR BAKHSH and others---Respondents

Civil Appeals Nos.978 and 979 of 1994, decided on 13th January, 2000

(On appeal from the judgment, dated 22-1-1994 of the Lahore High Court, Multan Bench passed in C.Rs. Nos.558 and 559 of 1984).

Punjab Tenancy Act (XVII of 1887)---

----Ss.77 & 114---Civil Procedure Code (V of 1968), S.9---Suit before Civil Court---Maintainability---Occupancy tenancy---Suit for declaration that plaintiffs had become owners of land in full---Relationship between the parties as landlord and tenant having ceased to exist on the date when impugned mutation was sanctioned by the Revenue Authorities determining the question as to acquisition of ownership rights qua portion of land and filing of the suit---Provisions of S.77, Punjab Tenancy Act, 1887 and the bar of, jurisdiction of the Civil Court to entertain any suit in respect of any dispute between the landlord and tenant was no more available---Question as to payment of rent was, however, incidental and was relevant for limited purposes to determine the question of acquisition of ownership rights in the land comprising occupancy tenancy, therefore, the suit was for all purposes, the declaration of title in the land and as such, was triable by the Civil Court--Wali Muhammad v. Muhammad Sharif PLD 1976 Lah. 1535 overruled.

The predecessors-in-interest. of the plaintiff were occupancy tenants qua the land in dispute under section 6 of the Punjab Tenancy Act, 1887.Vn the. promulgation of the Punjab Tenancy (Amendment) Act, 1952 such occupancy tenants had become entitled to acquire ownership rights in the land under their tenancy. According to section 114(2)(b) of the Punjab Tenancy Act, 1887, in case the rent was payable by such tenant in kind only i.e. Hissabatai, he was to acquire ownership rights in that much land according to the ratio of Hissabatai which he was to pay and in case the rent was payable both in kind i.e. Hissabatai and cash he was to get ownership rights in whole of the land comprising his tenancy on payment of compensation within the period fixed and extended under the Act. It was, however, provided under section 114(3) of the said Act that till such time the rules are framed under the said Act, the relationship between. the parties would continue to be that of landlord and tenant as before. The rules were framed in the year 1953, therefore, by operation of subsection (3) of section 114 of the Act, the relationship of landlord and tenant between the parties stood abolished and the only question remained to be decided was as to -whether the person who was occupancy tenant was entitled to get ownership rights in whole of the land or: In a portion of the same, the decision of which question was dependent on the decision of the question as, to whether rent of the land under tenancy was payable in kind as a whole or partly in kind and partly in cash. The Revenue Authorities sanctioned mutation in implementation of the said provisions of the Act by mutating ownership rights in the occupancy tenant in the part of the land assuming as if the rent was payable in kind only. Feeling aggrieved, the plaintiff brought suit before the Civil Court seeking declaration that they were owners of whole of land with possession and as a consequential relief, decree for permanent injunction was sought restraining the private respondents as well as the Revenue Authorities from interfering in their possession, as such. It was contended by the private respondents by raising dispute not only about the rights of the plaintiff as occupancy tenants but also that the rent was paid both in kind and cash.

Under section 114(3) of the Punjab Tenancy Act, 1887 the relationship between the parties as landlord and tenant was continued and they were to continue to enjoy the same rights and remained subject to the same liability as before only till the framing of the Rules by the Government for the purposes of clauses (c) and (d) of subsection (2) of section 114. which were framed in 1951, as such on the date when the impugned mutation was sanctioned by the Revenue Authorities in the year 1960 determining the question as to acquisition of ownership rights qua portion of the land and filing of the suit, the relationship between the parties as landlord and tenant ceased to exist, therefore, section 77 of the Punjab Tenancy Act and the bar of jurisdiction of the Civil Court to entertain any suit in respect of any dispute between the landlord and tenant was no more available. Besides in the suit of such a nature, the question as to payment of rent was incidental and was relevant for limited purposes to determine the question of acquisition of ownership rights in the land comprising occupancy tenancy, therefore, the suit, for all purposes was for declaration of title in the land and as such was friable by the Civil Court.

.Khushi Muhammad and others v. Boota and others PLD 1978 Lah. 1276; Allah Ditta v. Muhammad Ali PLD 1975 Lah. 429 and Rabia Babi v. Sanaullah NLR 1980 Rev. (Lah.) 30 approved.

Wali Muhammad v. Muhammad Sharif PLD 1976 Lah. 1535 overruled.

Gul Zarin Kiani, Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record for Appellants.

Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

. Date of hearing: 13th January, 2000.

2000SCMR528

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Sh. Ijaz Nisar and Mamoon Kazi, JJ

ZIAUL REHMAN---Appellant , versus

THE STATE---Respondent

Criminal Appeal No.355 of 1994, decided on 17th January, 2000.

(On appeal from the judgment of the Lahore, Multan Bench, dated 15-11-1993 passed in M.R.No.154 of 1994 and Crl. Appeal No.136 of 1990).

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 39 & 40---Penal Code (XLV of 1860), S.302---Extra judicial confession---Value---Evidence of extra-judicial confession alone without any corroboration was not sufficient to maintain any conviction thereon---One weak piece of evidence could not corroborate another similar evidence.

(b) Penal Code (XLV of 1860)---

----S.302---Qanun-e-Shahadat (10 of 1984), Arts. 39 & 40---Re-appraisal of evidence---Accused, about a month prior to the registration of F.I.R. was alleged to have had a quarrel with his wife, who thereafter left the accused’s house alongwith his brother leaving the two children in the accused custody---Brother of accused's wife, allegedly went to accused's house to enquire about the children when allegedly accused made an extra-judicial confession before him admitting to have thrown the children in the canal, thus, causing their death---Such extra judicial confession was alleged to have been heard by two other witnesses---Accused, during the investigation was said to have led the Investigating Officer in presence of the witnesses to the place where the children had allegedly been thrown by him into the canal---Nothing incriminating could be recovered from the place---Accused, in his statement before the Court, denied the allegation and pleaded innocent but neither produced any evidence in his defence nor he made any statement under S.340(2), Cr.P.C.---Although there was evidence of extra judicial confession allegedly made by the accused before prosecution witnesses but that evidence was not corroborated by any other evidence produced by the prosecution---Neither the bodies of the children nor any other incriminatory evidence could be recovered by the police during the course of investigation in the case---Evidence of pointing out the place of occurrence by the accused, could not be of any consequence, to the prosecution as nothing incriminatory was recovered there from by the police---Such evidence, in fact, was inadmissible as same could not be considered as exception to Art.39, Qanun-e-Shahadat, 1984---Accused had merely pointed out the place to the police as being the place where the children had been thrown by him and that pointation had not led to discovery of any fact for the purpose of Art.40 of the Qanun-e-Shahadat, 1984---Such evidence could not be relied upon as corroborating evidence---Judgment of High Court convicting and sentencing the accused was set aside by Supreme Court in circumstances.

(c) Penal Code (XLV of 1860)--- -

---S.302---Constitution of Pakistan (19731, Art. 185---Supreme Court Rules, 1980, OXXXIII, R.6 & O.XXIII, R.2---Jail appeal was though barred by 266 days but, Supreme Court, in view of circumstances of the case, condoned the delay as dismissal of the appeal for such technical reasons would have caused grave injustice to the accused/appellant.

Muhammad Javed Aziz Sandhu, Advocate Supreme Court for Appellant.

Malik Ainul Haq, Advocate Supreme Court for the State.

Date of hearing: 17th January, 2000.

2000SCMR531

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

Raja MUHAMMAD ASLAM---Petitioner

versus

Raja MUHAMMAD SARWAR and others ---Respondents

Civil Petition No. 1630-L of 1997, decided on 14th December, 1999.

(On appeal from the judgment /order, dated 30-9-1997 passed by the Lahore High Court, Lahore, in W.P. No. 19778 of 1996).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10(2)---Horse Breeding Tenancy---Choice of the Collector based on recommendations of the District Remount Officer was neither arbitrary, fanciful nor capracious---Recommendations of the District Remount Officer were entitled to due weight---Interference with such recommendations which were accepted by all the fora including High Court, was declined by Supreme Court.

Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 ref.

Mirza Masoodur Rehman, Advocate Supreme Court for Petitioner.

Ch. Imdad Ali, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 14th December, 1999.

2000SCMR533

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munir A. Sheikh and Wajihuddin Ahmed, JJ

MUHAMMAD SIDDIQUE---Appellant

versus

MUHAMMAD ARKAM --- Respondent

Civil Appeal No. 999 of 1995, decided on 11th January. 2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 16-1-1994 passed in C.R. No.239 of 1987).

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

----S.12---Civil Procedure Code (V of 1908), 5.115---Constitution of Pakistan (1973),, Art.185(3)---Interference by High Court in revision--­Scope---Suit for specific performance of agreement to sell---Findings of facts recorded by First Appellate Court-=-Interference by High Court in revision under S.115, Cr.P.C. with such findings---Validity---Leave to appeal was granted by Supreme Court to consider-the question as to whether the High Court was justified in exercising revisional jurisdiction under S.115, C.P.C. to interfere with the findings of facts recorded by the First Appellate Court.

(b) Co-owner---

----One of the joint owners if deals with the property in the ordinary circumstances, would not adversely affect the other joint owner's rights in the property.

(c) Civil Procedure Code (V of'1908)---

----S.115---Revision---Maintainability---Appellate Court while recording findings of facts in its order for the reversal of findings recorded by Trial Court had not taken into consideration the material. aspects of the case emerging from the circumstances and the evidence produced by the respondent--=Such being the position, case was eminently a fit one to hold that judgment of Appellate Court was based not only on misreading but on non-consideration of material piece of evidence which was liable to be interfered with under S.11,5(c), C.P.C.

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

----S.1.2---Suit for specific performance of agreement of sale of property--­Slackness on the part of the plaintiff to approach the Court after a period of about nine years after the execution of the agreement of sale---Had the plaintiff approached earlier he would have been benefited by the deposit of Rs.2,000 at the relevant time, as with the passing of the time there was inflation in the value of currency---Grant of decree for specific performance of agreement, being a discretionary and equitable relief, under the law, Supreme Court while exercising the discretion in the interest of justice in favour of the plaintiff raised the amount of remaining consideration from Rs.2,000 to Rs.1,00,000---Suit was ordered to be decreed accordingly.

Ch. Khursheed Ahmad, Advocate Supreme Court for Appellant.

M. Ilyas Khan, Advocate Supreme Court for Respondent.

Date of hearing: 11th January, 2000.

2000 S C M R 540

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri arid Mamoon Kazi, JJ

MASJID INTIZAMIA COMMITTEE and others---Petitioners

versus

ANJUMAN-E-FALAH-O-BAHBOOD and others---Respondents

Civil Petition No.359 of 1999, decided on 13th January, 2000.

(On appeal from the judgment of the Lahore High Court, dated 1-2-1999 passed in S.A. O. No. 160 of 1998).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), S. 24-A---Ex parte ejectment of tenant---Appearance of parties on transfer of proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959---Applicability of S.24-A, C. P. C. ---Application for setting aside ex parte ejectment order by Rent Controller was dismissed for non-prosecution and restoration application of said order was also dismissed---Additional District Judge, on appeal, set aside the ejectment order as the case had been transferred from the Court of one Rent Controller to another who had then passed the order of ejectment but no notice in that regard had been served on the tenants---Case was, therefore, remanded to the Rent Controller for hearing the same afresh--­Tenants, though were being proceeded against ex parte but the proceedings arose from an ejectment application and not a suit---Provisions of S.24-A, C.P.C., therefore, could not be invoked in the case---Proceedings held by the transferee Rent Controller against the tenants without notice suffered on infirmity as same were opposed to the principles of natural justice.

S. Irshad Hussain v Azizullah Khan 1987 SCMR 150 and Fehmida Beg um v. Muhammad Khalid 1992 SCMR 1908 distinguished.

Malik Muhammad Nawaz, dvocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 13th January, 2000.

2000 S C M R 542

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Abdur Rehman Khan, JJ

SHAHID NADEEM and others---Petitioners

versus

MUHAMMAD SHAM---Respondent

Civil Petition No.67 of 1999, decided on 13th December, 1999

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Bona fide personal use of landlord---Two shops had been vacated in the same building during the pendency of the first appeal which fact was brought to the notice of the Court by the tenant---Instead of availing opportunity to explain that the said shops were not suitable for his need, the landlord went to deny the fact that any shop had been vacated as alleged by the tenant and succeeded in getting an order in his favour---Nevertheless First Appellate Court gave a notice for contempt of Court to the landlord for making a false statement but said proceedings were dropped for technical reasons---Effect---Although opportunity had been provided to the landlord to explain that the vacated shops failed to serve his requirement, but such opportunity was already lost by him when he resisted such attempt by the tenant to lead additional evidence in that regard---Failure of landlord to bring circumstances on record which could establish his bona fides as to the need. of the' premises required by him was, thus, fatal to his case.

Abid Maood and others v. Dilshad Khan 1995 SCMR 146 ref.

Nooruddin and others v. Asghar Ali and others 1968 SCMR 1087; Muhammad Latif v. Hakim Nisar Ahmed and others 1986 SCMR 650 and Sabu Mal v. Kika Ram alias Heman Dad 1973' SCMR 185 distinguished.

Tanvir Bashir Ansari, Advocate Supreme Court for Petitioners.

M.Farooq, Advocate Supreme Court for Respondent.

Date of hearing: 13th December, 1999.

2000 S C M R 545

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Sh. Ria2 Ahmed, JJ

BANKERS EQUITY LIMITED through Mehr Muhammad Abdullah, Vice-President, Law, Central Region, Lahore---Petitioner

versus

ROOH ULLAH KHAN and others---Respondents

Civil Petitions Nos.2089-L, 2090-L and 2091-L of 1999, decided on 21st December, 1999.

(On appeal against order dated 25-11-1999 passed by Lahore High Court, Lahore in Civil Revisions Nos. 856, 857 and 858 of 1999 respectively).

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

-----O. I, R. 10---Suits for recovery of money---Trial Court had framed necessary issues arising out of the pleadings of the parties and had recorded evidence produced by them in each suit---When such suits were at the stage of hearing of arguments for which different dates were fixed, a finance company (petitioner) filed an application in each suit for being impleaded as party on the ground that said company was a secured creditor of the defendants in the suits, having a first charge over their assets and that a decree in the sum of Rupees fifty-six crores was passed in its favour and against the defendants in the suits by the Banking Tribunal and in such a situation it was an interested party and entitled to be impleaded as a defendant in the suits in the interest of justice to look after its interest over the assets of the defendants in the suits---Validity---Suits filed against the defendants, even if decreed, were not to adversely affect the interests of petitioner/finance company as the same had already equipped itself with a decree against the defendants in the suits, the assets of which were under the first charge of the petitioner/finance company and as the said decree was to be discharged in accordance with the repayment schedule given by the Banking Tribunal---Presence of Finance Company/petitioner for determination of the questions raised in the suits was neither required nor was proper nor was necessary, as such there were no bases for allowing the petitioner/finance company to join proceedings of the suits---Application of the Finance Company under O. I, R. 10, C.P.C., therefore, was rightly dismissed in circumstances.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 21st December, 1999,

2000 S C M R 548

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Abdur Rehman Khan

and Kamal Mansur Alam, JJ

Major AZAM KHAN AFFANDI---Appellant

versus

DEPUTY COMMISSIONER, SWAT and 7 others---Respondents

Civil Appeals Nos, 1920 and 1921 of 1996, decided on 21st January, 2000.

(On appeal from the judgment, dated 12-6-1996 of the Peshawar High Court, Peshawar, passed in R.F.A. No.4 of 1989 and R.F.A. No.8 of 1988).

Forest Act (XVI of 1927)----

----S, 29---Civil Procedure Code (V of 1908), S.9---Suit for possession of land---Issuance of notification under S,29, Forest Act, 1927 declaring certain land to be "protected forest"---Effect---Mere issuance of such notification would not divest the real owners of the forest land of their proprietary rights---Government was neither owner of the property in question nor had ever claimed proprietary rights in the land so notified whereon Government wanted to construct hydro power station---No enquiry as envisaged under S.29(3), Forest Act, 1927 had been conducted in the matter to ascertain and determine the rights of the private persons who could be the plaintiffs in the case---Forest Department, in circumstances, would not become owner of the land notified to be "protected forest" ---Plaintiff being owner of the land in question was entitled to compensation of the acquired land and get the price of the trees which stood on the disputed land which were sold/auctioned to clear the land for construction of the hydro power station.

Mian Yunis Shah, Senior Advocate Supreme Court for Appellant.

Imtiaz Ali, Addl. A.-G., N.-W.F.P. for Respondents.

Date of hearing: 15th November, 1999.

2000 S C M R 554

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Kamal Mansur Alam, JJ

KHALID SIDDIQUE---Appellant

versus

SECRETARY, EXCISE AND TAXATION DEPARTMENT, GOVERMENT OF PUNJAB, LAHORE and 2 others---Respondents

Civil Appeal No. 1291 of 1995, decided on 17th December, 1999.

(From the judgment/order dated 17-4-1994 passed by the Punjab Service Tribunal. Lahore, in Appeal No.348 of 1991).

Punjab Service Tribunals Act (IX of 1974)-

----Ss. 4. & 3---Appeal---Constitution of Service Tribunal---Such Bench of Service Tribunal comprising the Chairman and one member heard the appeal but before order could be passed one member of the Bench retired and the order was passed by the Chairman of the Bench long after such retirement of the member---Validity---Bench having been constituted to hear and decide an appeal, such Bench alone, for the purpose of that appeal, could be deemed to be Tribunal---On the retirement of one of the two members of the Bench, the Tribunal so constituted would cease to exist, with the result that the decision by the remaining member could not be considered as that of the Tribunal--­Case was remanded' to Service Tribunal for hearing the appeal afresh.

Appellant in person. . Arshad Ali Chaudhry, Advocate Supreme Court for Respondents.

Date of hearing: 17th December, 1999.

2000 S C M R 556

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

BARKAT ALI ... Appellant

versus

MUHAMMAD EHSAN and another---Respondents

Civil Appeal No. 1349 of 1996, decided on 29th February, 2000.

(On appeal from the judgment dated 19-9-1995 of the Lahore High Court, Lahore in S.A.O. No. 117/95).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Bona fide need of landlord for a building let out for non-residential purposes, for his own residential purposes---Validity---Leave to appeal was granted by Supreme Court to consider as to whether a building let out for non-residential purposes could be got vacated on the ground that same was needed by the landlord for residential purposes---Status quo with regard to possession during the pendency of the appeal was ordered by Supreme Court to be maintained.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Question on which the leave had been granted, though raised in the ejectment petition and issue relevant thereto was also framed to the effect "whether the premises in dispute was being used by the tenant for the purpose other than for which it was let out," nevertheless the same plea was neither raised nor pressed at the time of hearing before the High Court--­Effect---Such circumstance, held, alone merited dismissal of appeal before Supreme Court.

(c) Administration of justice---

---- Legal formalities and technicalities---Object---Principal object behind all legal formalities is to safeguard the paramount interest of justice--­Legal precepts were devised with a view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fides.

Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 quoted.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----S. 13---Eviction of tenant---Proceedings before Rent Controller --- Object and nature---Proceedings before Rent Controller are not, in the strict sense judicial that evidence should be recorded in the same manner as in a civil suit---Rent Controller, being persona designata, was required to satisfy himself about the grounds in ejectment petition and pass order in consonance with justice---Evidence in such cases should be ordered by the Rent Controller to be in the form of affidavits of witnesses of both the sides which should be filed in the Court---In case any of the parties wanted to cross-­examine the witness, the party producing his affidavit be directed to be responsible for his presence in Court for the purpose ---Issuance of notice to the witness for appearance was not required, for the party who had obtained the affidavit of such a witness would be bound to produce him in the Court for cross-examination and in case he failed to do so, he would be faced with the situation of his evidence not being read in the case--­Supreme Court while deprecating the delay in finalising such cases, issued guidelines as to the procedure that may be followed with immediate effect so that the evidence already recorded in the given cases should be made basis for the quick decision and for future compliance in the regulation of procedure.

The proceedings before the Rent Controller are not in the strict sense judicial that evidence should be recorded in the same manner as in a civil suit whereas the Rent Controller being persona designata is required to satisfy himself about the grounds in the ejectment petition and pass order in consonance with justice, therefore, evidence in such cases should be ordered to be in the form of affidavits of witnesses of both the sides which should be filed in the Court and in case any of the parties wants to cross-examine him, the party producing his affidavit be directed to be responsible for his presence in Court for such purpose. It would not require the issuance of notices to the witnesses for appearance, for, the party who had obtained the affidavit of such a witness would be bound to produce him in the Court for cross-examination and in case it fails to do so, it will be faced with the situation of his evidence not being read in the case.

It is deplorable that even the rent cases take years for finalization which tantamounts to frustrating the ends of justice. It also gives rise to other situations disrupting the harmony amongst people. The Rent Controllers conduct the proceedings in ejectment matters as they are used to 'doing in the regular suits. These are not proceedings in the strict judicial sense. It is the satisfaction of the Rent Controller alone on the basis of material available on record to decide, whether or not an order of eviction is to be passed in a given case.

Law declared by Supreme Court in the case of Khadim Mohy-ud­Din PLD 1965 SC 459 has not been properly understood, appreciated and applied in proceedings, under the rent laws. It is, therefore, necessary in the interest of justice and to advance the cause of rent laws to state the guidelines with clarity and particularity, as to the procedure that may be followed with immediate effect so that the evidence already recorded in the given cases should be made basis for the quick decision and for future it shall be regulated as follows;

(1) Affidavits of not more than two witnesses in support of the ejectment application shall be filed in the Court in addition to the affidavit of the petitioner himself in support of the contents of the ejectment petition. .

(2) While replying to the ejectment application the respondent shall be similarly required to submit his own affidavit and affidavits of two other witnesses in support of his affidavit on the date fixed in the notice served upon him.

(3) The parties shall be bound to produce their witnesses for purposes of their respective cross-examination on the day fixed by the Court.

A party obtaining the affidavits of witnesses in support of his petition/reply would be bound to produce them in the Court for cross­-examination and in case of its failure to do so their evidence shall be excluded from consideration.

(5) Appeals against the interim orders of the Rent Controller and resort to Constitutional jurisdiction against orders at intermediate stages arising out of the ejectment proceedings, should be discouraged.

(6) The Court should take serious view of the situation when witnesses for cross-examination in support of their affidavits deliberately avoid/evade appearance in Court.

(7) Adjournment of ejectment petition should not be allowed except under unavoidable circumstances on an application moved by a patty supported by affidavit. In such cases also adjournment should not be made for a period exceeding three days. Following the above procedure in ejectment matters appears to be necessary to achieve the goal of expeditious disposal of cases within a period of three months particularly in respect of residential tenements having regard to the decisions unanimously taken in the Chief Justices' Committee Meeting held on 26-2-2000.'

(8) There is a need for organization and methodical arrangement of supervision and control by the High Courts over the functioning of the subordinate Courts which will be in accord with the decisions reached at the Chief Justices' Committee Meeting held on 26-2-2000.' The District and Sessions Judges of all the Provinces would be responsible for the integrity and expeditious disposal of the cases and working of the subordinate Courts within their respective jurisdiction.

Khadim Mohy-ud-Din v. Ch. Rehmat Ali Nagra PLD 1965 SC 459 fol.

Mahmood A. Qureshi, Advocate-on-Record for Appellant.

Mansoor-ur-Rehman Afridi, Advocate Supreme Court for Respondents.

Date of hearing: 29th February, 2000

2000 S C M R 567

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza

and Abdur Rehman Khan, JJ

The PROVINCE OF PUNJAB and another---Appellants

versus

NATIONAL INDUSTRIAL COOPERATIVE CREDIT

CORPORATION and another---Respondents

Civil Appeals Nos.427, 428, 429, 430, 558, 559, 560, 561, 563, 564, 565, 566, 567, 568 and 569 of 1992, decided on 2nd November, 1999.

(On appeal from the judgment/order of the Lahore High Court, dated 25-7-1992, 19-4-1992 passed in W.Ps. Nos.716, 717, 2514 of 1992, 10424 of 1991, 4607, 5272, 4653, 5353, 5419, 4858, 4608, 4699, 4933, 4759 and 5542 of 1992).

(a) Constitution of Pakistan (1973)---

----Art. 175---Jurisdictionof Courts---Judicial review---If it is found that the impugned legislation is in the nature of legislative judgment impinging on judicial power of judiciary, same would prima facie be ultra vires the Constitution.

(b) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----Ss.11, 12, 13, 22 & 26---Constitution of Pakistan (1973), Arts. 4, 18, 23, 24, 25 & 2A---Vires of legislation ---Trichotomy of power enshrined in the Constitution of Pakistan---Principles---Application---Emergent legislation---Principle of trichotomy of power does not require that in every case without exception the law should always provide for a prior hearing before a judicial or quasi judicial forum---Exceptional cases can require immediate legislation in which situations ex post facto hearing can be provided to the party affected by such emergent legislation ---Principles--­Punjab Undesirable Cooperative Societies (Dissolution) Ordinance did contain the provisions for ex post facto hearing and adequate safeguards were available for the cooperative societies against whom action had been taken to seek redress from the judicial and quasi judicial forums.

Invariably, but subject to there being exceptional circumstances requiring urgent action in the larger interest of the community or the public­-at-large, the law provides for show-cause notice with or without an inquiry before any adverse action is taken against any person. Even under the due process clause it is required that before any adverse action is taken the law should invariably provide for an opportunity to the affected person to defend himself before any adverse action is taken. However, there can be exceptional situations or circumstances in which action may have to be taken without prior notice in public interest or for the larger good and benefit of the community but in such cases also the law should provide for an ex post facto hearing so that in case it is later on found that in a particular case adverse action was not warranted, such adverse action be withdrawn. Principle of trichotomy of powers does not require that in every case without exception the law should always provide for a prior hearing before a judicial or quasi-judicial forum. There can be exceptional cases requiring immediate legislation in which situation ex post facto hearing can be provided to the party affected by such emergent legislation.

A legislation, which provides for no hearing or opportunity to the affected party before or even after the action is taken, might be subject to challenge for various reasons. In the case of the Punjab Undersirable Cooperative Societies (Dissolution) Act, 1993, no doubt there was no provision for any prior hearing. It was, however, to be ascertained whether the legislation granted any ex post facto hearing or opportunity to the affected Cooperative Societies or their ex-management. After going through the provisions of the legislations, provision for ex post facto hearing are spelt out from the legislation and that adequate safeguards were also available for the cooperative societies against whom action had been taken to seek redress from the judicial and quasi judicial forums.

As soon as the legislation was enacted, the "Undesirable Cooperative Societies" ceased to function and their assets and properties vested in the Registrar. Under section 13, immediately on such vesting of the properties and assets, Registrar was required to make a petition for winding up of the Undetirable Cooperative Society before the Cooperatives Judge for passing orders of winding up and appointment of a Cooperatives Board as the liquidator. Though the word "shall" had been used in section 13 requiring the passing of a winding up order and for appointment of a Cooperatives Board as Liquidator this provision was not mandatory and the Cooperatives Judge still retained the power and discretion to refuse such application in which event no winding up order of the undesirable company could be passed. Further, under section 26 of the legislation, Government had the power to amend or modify or omit any entry in the Schedule. If the Cooperatives Judge came to the conclusion that there was no basis for including the name of any cooperative society in the Schedule to the legislation, the Cooperatives Judge could give a direction to the Government to delete the name of such Cooperative Society from the Schedule.

If the order under section 13 (read with section 26) was passed in favour of a Cooperative Society, the Department could file an appeal before Supreme Court under section 22 and on the other hand in case no relief was granted to the cooperative society and winding up order was passed, the aggrieved management, of the cooperative society could file an appeal to the Supreme Court. If for arguments sake the Provincial Legislature was not competent to enlarge the jurisdiction of the Supreme Court by providing an appeal and, therefore, section 22 of the legislation was ultra vires the Constitution, writ under Constitutional jurisdiction remained available against the orders of the Cooperatives Judge.

After examining various provisions together especially sections 11, 12, 13, 22 and 26 it is clear that there were provisions in the legislation for ex post facto hearing to the aggrieved Cooperative Society/ex-management, and the legislation provided adequate safeguards to them for protecting their interests, properties and assets.

There were safeguards available in the impugned legislation for the cooperative societies and their ex-management for redress against any action which might be found to be unwarranted.

National Industrial Cooperative Credit Corporation Limited v. Province of Punjab PLD 1992 Lah. 462; In re: Special Courts Bill, 1978 AIR 1979 SC 478; Inamur Rehman v. Federation of Pakistan PLD 1977 Kar. 524; Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies PLD 1958 Lah. 887; Jamal Shah v. Election Commission PLD 1966 SC 1; Fauji Foundation v. Shamim-ur-Rehman PLD 1983 SC 457; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901; Province of Sindh v. Public-at-Large PLD 1988 SC 138; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Federation of Pakistan v. Public-at-Large PLD 1988 SC 202; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Manzoor Ilahi v. Federation of Pakistan PLD 1975 SC 66; Ghulam Zamin v. A.B. Khondkar PLD 1965 Dacca 165 and State v. Ziaur Rehman PLD 1973 SC 49 ref.

(e) Constitution of Pakistan (1973)

----Arts. 70 & 142---Emergent legislation---Mere fact that the required results from emergent legislation could be achieved by taking effective action under other relevant enactments which were already on the statute book could not be a Constitutional bar on the competence of the Legislature to enact a special law.

(d) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----Preamble---Constitution of Pakistan (1973), Arts. 70, 127, 128 & 142--­Ordinance was neither in conflict with the scheme of trichotomy of powers envisaged in the Constitution nor was a law of condemnation nor was in the nature of legislative judgment nor an encroachment by the Provincial Legislature on the power of the judiciary.

The fact that perhaps the required results could be achieved by taking effective action under the Cooperative Societies Act and the Banking Companies Ordinance, could not be a Constitutional bar on the competence of the legislature to enact special legislation of the type of Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992, was not in the nature of a law of condemnation. No person had been declared to be guilty of committing of any offence by the legislation. Consequences of the provisions of the legislation were also not final. The legislation had adequate safeguards for the affected parties, who could approach the Cooperative Judge and, if aggrieved by the orders of the Cooperatives Judge, writ jurisdiction remained available.

Punjab Undsirable Cooperative Societies (Dissolution) Ordinance 1992 was not in conflict with the scheme of trichotomy of powers envisaged in the Constitution, it was not a law of condemnation; or in the nature of legislative judgment nor it was an encroachment by the Punjab Legislature on the power of the judiciary.

(e) Constitution of Pakistan (1973)--

----Art. 2A---On the basis of Art. 2A, Constitution of Pakistan (1973) alone, a law cannot be declared as ultra vires the Constitution.

Kaniz Fatima v. Wali Muhammad PLD 1993 SC 901 fol.

Fauji Foundation v. Shamiur Rehman PLD 1983 SC 457; Hakim Khan v. Government of Pakistan PLD 1992 SC 595 and Al-Jehad Trust v. Government of Pakistan PLD 1996 SC 366 ref.

(f) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----Preamble---Constitution of Pakistan (1973), Art.2A---Provisions of Punjab Un-desirable Cooperative Societies (Dissolution) Ordinance, 1992 are nor violative of Art.2A of the Constitution.

Province of Sindh v. Public-at-Large PLD 1988 SC 138 ref.

(g) Constitution of Pakistan (1973)--

----Art. 70---Emergent legislation---Principles of natural justice and Islamic law---Conformity with---Law, affecting the rights of the people can be made without any prior notice but in such cases there should always be a provision of ex post facto hearing so that an unwarranted action or unjust order could be set aside and no objection could advance that law was bad for violation of principles of natural justice and Islamic Injunctions.

(h) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----Preamble---Constitution of Pakistan (1973), Arts. 18 & 24---Restraints placed on the assets and properties of the affected Cooperative Societies by Punjab Undesirable Cooperative Societies (Dissolution) Ordinance; 1992, were not final and the ex-management could approach the Cooperative Judge for redress and, if aggrieved by the orders of the Cooperatives Judge, writ jurisdiction remained available---Compelling reasons for urgent action was available for the legislation of an enactment to safeguard the rights and interests of the depositors/investors who in effect were the ultimate beneficial owners of the properties and assets of the affected Cooperative Societies--­Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992, in circumstances, was not ultra vires the Constitution on the ground that same violated Arts. 18 & 24 of the Constitution.

(i) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----Preamble & S.4---Constitution of Pakistan (1973), Arts. 70 & 89---Vires of legislation---Preamble and S.4 of the Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 having provided the guidelines for treating a Cooperative Society as undesirable its provisions were not ultra vires the Constitution on the ground that same did not provide guidelines for the purpose.

(j) Constitution of Pakistan (1973)---

----Arts. 70 & 142---Competence of Legislature to legislate law--­Determination---Guiding principles---While dealing with the question of competence of Legislature, pith and substance of the impugned legislation has to be considered.

(k) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----Preamble---Constitution of Pakistan (1973), Arts. 70 & 142 read with Fourth Sched., Part 1, Entry No.55, Federal Legislative List---Legislation in respect of Cooperative Societies---Competent Legislature for enacting law in respect of Cooperative Societies is the Provincial Legislature/Provincial Governor and not the Federal Legislature or the President---Concurrent Legislative List also does not contain any entry under which the Federal Legislature could competently make a law relating to Cooperative Societies.

(I) Constitution of Pakistan (1973)---

Art. 142---Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992), S.2(d)---"Cooperatives Judge"---Definition--­"Cooperatives Judge" has been defined to mean a Judge of the Supreme Court of Pakistan nominated by Chief Justice of Pakistan or a Judge of the High Court qualified for appointment as a Judge of the Supreme Court of Pakistan nominated by the Chief Justice of Pakistan after consultation with the Chief Justice of the High Court---Cooperatives Judge was a persona designata and his appointment was also made by the Chief Justice of Pakistan---Competent Legislature for Cooperative Societies being the Provincial Legislature, to the exclusion of Federal Legislature, Provincial Legislature could competently make a provision in law relating to Cooperative Societies providing for appointment of Cooperatives Judge (as persona designata) being a Judge of the Supreme Court of Pakistan nominated by the Chief Justice of Pakistan and there was no embargo or restriction on the competence of the Provincial Legislature to make such provisions.

(m) Constitution of Pakistan (1973)---

-----Art. 142, Fourth Sched., Parts I & II---Legislative powers---Provincial Legislature is competent to make laws in respect of any matter not covered by the Federal Legislative List or the Concurrent Legislative List.

(n) Constitution of Pakistan (1973)---

----Fourth Sched., Part I, Federal Legislative List, Entry No.55, Arts.175(2) & 142(a)---Legislation of laws for enlargement of jurisdiction of the Supreme Court---Competence---Parliament has exclusive jurisdiction to legislate laws for enlargement of jurisdiction of the Supreme Court or conferring supplemental powers on the Court---Principles.

There is no ambiguity in interpreting Entry No.55 of Part I of the Federal Legislative List (Fourth Schedule) of the 1973 Constitution. Such Entry read with Articles 175(2) and 142(a) of the Constitution confers exclusive powers on the Parliament to make laws for enlargement of jurisdiction of the Supreme Court or conferring on it supplemental powers.

If Entry No.55 was not there in the Federal Legislative List, it could be argued that under Article 175(2) of the Constitution, in respect of matters exclusively falling under the competence of the Provincial Legislatures, a law can validly be made by a Provincial Legislature enlarging jurisdiction of the Supreme Court and conferring on it supplemental powers but Article 175(2) is not to be interpreted in isolation. It has to be read and interpreted alongwith Article 142(a) and the Entries in the Legislative Lists. Under Entry No.55 of the Federal List, Federal Legislature is competent to make laws regarding jurisdiction and powers of all Courts (except the Supreme Court with respect to any of the matters in,, such list. The other part of this entry makes the Federal Legislature competent to make laws for enlargement of the Supreme Court and the conferring thereon of supplemental powers with the proviso that this is to such extent as is expressly authorised by or under the Constitution. Powers and jurisdiction conferred on the Supreme Court by the Constitution can neither be interfered with or varied nor taken away by the Legislature. However, jurisdiction of the Supreme Court can be enlarged and supplementary powers can be conferred on the Supreme Court by "law" in view of Article 175(2) of the Constitution, and Entry No.55 read with Article 142(a) of the Constitution leaves no doubt that such enlargement of the jurisdiction and conferment of supplementary powers can only be done through law made by Federal Legislature.

Inamur Rehman v. Federation of Pakistan PLD 1977 Kar. 524 ref.

Inamur.Rehman v. Federation of Pakistan PLD 1977 Kar. 524 not approved.

(o) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----S.22---Constitution of Pakistan (1973), Fourth Sched., Part I, Federal Legislative List, Entry No.55, Arts. 175(2) & 142(a)---Provincial Governor and the Provincial Assembly not being competent to enact any law whereby jurisdiction of the Supreme Court could be enlarged by providing an appeal to the Supreme Court against the order of the Cooperatives Judge, S.22, Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 was ultra vires the Constitution.

(p) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (XX of 1992)---

----S.14---Claims of depositors/investors and members against Undesirable Cooperative Societies---Supreme Court directed all concerned that it was high time that the matter was taken up on priority basis and dealt with effectively without any delay---Certain instructions in` that regard were also issued.

Abid Hassan Minto, Advocate Supreme Court and Ms. Yasmin Sehgal, Asstt. A.-G. for Appellants.

Raja M. Anwar, Senior Advocate Supreme Court for Respondents (in C.As. Nos.430 and 566 of 1992).

Raja M. Akram, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.As. Nos.427 and 558 of 1992).

Bashir Ahmad Ansari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent (in C.A. No.560 of 1992).

Nawab Saeed Ullah Khan, Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record for Respondents Nos. l and 2 (in C.A. No.563 of 1992).

Syed Najaf Ali Shah, Advocate Supreme Court for Respondent (in C.A. No.568 of 1992).

Dates of hearing: 22nd, 23rd, 24th, 25th, 28th and 29th June, 1999.

2000 S C M R 620

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J and Sh. Ijaz Nisar, J

GOVERNMENT OF PUNJAB through Secretary Education, Civil

Secretariat, Lahore and others---Petitioners

versus

ABDUR REHMAN and others---Respondents

Civil Petition for Leave to Appeal No.440-L/1998 decided on loth September 1999.

(On appeal from the judgment dated 19-12-1997 passed by Lahore High Court, Lahore in W.P. No.1486/1997).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil service---Appointment---Authority kept appointments of civil servants in abeyance on the ground that appointment orders of such civil servants were issued at the behest of Member Provincial Assembly who wanted to accommodate his own partymen---High Court after thorough scrutiny of material produced recorded a finding that no irregularity or illegality was committed in the said appointments---Well-reasoned order passed by High Court on basis of material available on record, could not be interfered with in absence of any legal flaw or infirmity in the order--­Petition for leave to appeal was dismissed.

Muhammad Riaz Lone, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing 10th September 1999.

2000SCMR623.

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Kamal Mansur Alam, JJ

CANTONMENT BOARD, QUETTA CANTT. through Executive

Officer, Quetta Cantt.---Petitioner

versus

BASHIR AHMED ---Respondent

Civil Petition No. 153-Q of 1997, decided on 14th September, 1999.

(On appeal from the judgment, dated 30-6-1997 of the High Court of Balochistan passed in R.F.A. No.9 of 1996).

Specific Relief Act (I of 1877)---

----S.9---Civil Procedure Code (V of 1908) O.XXVI, R.9---Constitution of Pakistan (1973), Art. 185(3)---Suit for possession and removal of encroachment---Suit having been decreed by Trial Court, defendant/petitioner filed appeal before High Court against the judgment and decree passed by Trial Court---Parties during pendency of appeal agreed for appointments of three-member Local Commission to ascertain boundaries and actual area of the alleged encroached land and High Court remanded the case accordingly---Out of three members of Local Commission, two members gave opinion in favour of plaintiff/respondent whereas third one gave different opinion and Trial Court relying upon majority view decreed the suit without any further evidence and appeal against said judgment of Trial Court was decreed by High Court---Supreme Court, considering evidence on record and judgment of High Court, found case of petitioner fit for grant of leave to appeal---Leave to appeal was, therefore, granted to consider whether Trial Court had rightly accepted majority view of two members of the three-member Commission discarding view of third one and whether Trial Court had rightly decided suit solely on majority view of Local Commission without recording any further evidence.

Muhammad Riaz Ahmed, Advocate-on-Record for Petitioner. Nemo for Respondent.

Date of hearing: 14th September, 1999.

2000 SCMR626

[Supreme Court of Pakistan]

Present Irshad Hasan Khan, Actg. C. J. and Sh. Ijaz Nisar, J

ABDUL AZIZ and others---Petitioners

versus

FAYYAZ AHMED and another---Respondents

Civil Petitions Nos.833-L to. 838-L of 1999, decided on 15th September, 1999.

(On appeal from the judgment/order, dated 5-5-1999, of High Court, Lahore, in W.Ps. Nos.3379 to 3384 of 1994).

West Pakistan Board of Revenue Act (XI of 1957)---

----S.7---Land Reforms Regulation, 1972 (M.L.R. 115), para. 25(7)--­Constitution of Pakistan (1973), Art. 185(3)---Second revision before Board of Revenue---Competency---Leave to appeal, was granted to consider question of maintainability/competency or otherwise of the second revision before Board of Revenue.

Locas v. S.M. Nasim, Member (Revenue), Board of Revenue PLD 1984 SC 227 ref.

Rana Muhammad Sarwar, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

M. Anwar Bhinder, Advocate Supreme ou with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Res ondents.

Date of hearing: 15th September, 1999.

2000 S C M R 627

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza

and Kamal Mansur Alam, JJ

Moulvi ALLAH NOOR---Petitioner

versus

Haji JAN MUHAMMAD and 13 others---Respondents

Civil Petition for Leave to Appeal No. 225-Q of 1999 and C. A. No. 175-Q of 1999, decided on 16th September, 1999.

(On appeal from the judgment, dated 10-3-1999 passed by the High Court of Balochistan, Quetta, in C.P. 44 of 1998).

West Pakistan Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 50 & 66---Constitution of Pakistan (1973), Art. 185(3) --- Entitlement, validity of route permit and procedure regulating time table of vehicles--­Determination---Pending a Constitutional petition against order of Authority whereby time schedule of vehicles was modified, petitioner filed another Constitutional petition raising grievance pertaining to grant of route permit and schedule of timings---High Court accepting subsequent Constitutional petition partly, remanded case to Authority to decide matter relating to route permit---Constitutional petition earlier filed by' petitioner against order of Authority modifying time schedule of vehicle was dismissed being premature---Petitioner filed petition for leave to appeal against said order of High Court---Main question regarding entitlement, validity of route permit and procedure regulating time table was under-consideration before the Authority in pursuance of remand order passed by High Court in subsequent Constitutional petition---Supreme Court by converting petition for leave to appeal into appeal observed that it was fair and proper that controversy specifying time table for plying vehicles on respective route should also be considered as additional question by Authority after allowing proper opportunity of hearing on that aspect as well.

Petitioner in person.

M.K.N. Kohli, Advocate-on-Record for Respondents Nos. I to 5, 7, 9 and 11.

Malik Sikandar Khan, Advocate-General, Balochistan for the Official Respondents:

Date of hearing: 16th September, 1999.

2000 S C M R 632

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

GHULAM RASOOL---Petitioner

versus

Mian KHURSHID AHMED ---Respondent

Civil Petition for Leave to Appeal No.54-L of 1999, decided on 17th September, 1999.

(On appeal from the order, dated 8-12-198 passed by Lahore High:~ Court, Lahore, in S.A.0. 100 of 1997).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Constitution of Pakistan (1973), Art. 185(3)---Relationship of landlord and tenant---Denial---Striking off defence for non-compliance of tentative rent order---Tenant who failed to comply with tentative rent order whereby he was directed to deposit arrears of rent and future monthly rent, had denied relationship of landlord and tenant between him and the respondent---Tenant had claimed that shop in dispute was not owned by respondent, but was owned by the Highway Department---Tenant could not produce any evidence in proof of his claim---Tenant had contended that tenancy having been denied by him, :1. was incumbent on Rent Controller to have determined said issue in the first instance, before proceeding to pass tentative rent order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959=--Validity---Where relationship of landlord and tenant was denied, Rent Controller, no doubt, in the first instance should decide said issue before directing tenant to deposit arrears of rent or future rent, but where tenant had failed to produce even, prima facie, evidence in support of his assertion, no prejudice would be caused by reason of omission of framing of formal issue on the existence of relationship of landlord and tenant between the parties---Objection of tenant with regard to relationship of landlord and tenant between the parties itself being frivolous and prima facie not supported by any evidence, defence of tenant was rightly struck off for non-compliance of tentative rent order.

Qureshi Muhammad Hafeez, Advocate Supreme Court with Abut Aasim Jafri, Advocate-on-Record (absent) for Petitioner.

Mian Nisar Ahmad, Advocate Supreme Court and Ch. M. Aslam, Advocate-on-Record for Respondent.

Date of hearing: 17th September, 1999.

2000SCMR636

[Suprekne Court of Pakistan]

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza and Kamal Mansur Alam, JJ

Mst. HUSSNA and 5 others---Petitioners

versus

COMMISSIONER/APPELLATE AUTHORITY, NASEERABAD and 9 others---Respondents

Civil Appeal No. 173-Q in Civil Petition No.248-Q of 1999, decided on 14th September 1999.

(On appeal from the order, dated 16-4-1999 of the High Court of Balochistan passed in C.P.No.319 of 1999).

Balochistan Local Government Ordinance (II of 1980)---

----S. 17---Constitution of Pakistan (1973), Art. 185(3)---Election on seats for special interest (women) workers and peasants---Returning Officer accepted nomination papers of six candidates holding that no other nomination papers were filed within time---Petitioners had contended that they had presented nomination papers within time, but Returning Officer refused to entertain their nomination papers on ground that the papers were not filed within time---Appellate Authority accepted nomination papers of petitioners and directed that the nomination papers be treated to have been received in time---Candidates whose papers had already been accepted filed Constitutional petition against decision of Appellate Authority which was accepted by High Court by a short order, but reasons for acceptance of Constitutional petition were given by High Court in detailed order passed after about two months of passing of short order---Apparent contradiction was found between short order and detailed judgment passed by High Court---Evidence on record had proved that nomination papers were filed by petitioners in time, but were unlawfully refused to be entertained by Returning Officer and that High Court did not permit petitioners to rebut stand taken by Returning Officer which had enabled the other candidates to be elected unopposed---Supreme Court, converting petition for leave to appeal into appeal set aside contradictory judgment of High Court and unopposed election of six candidates was also declared to be without lawful authority.

M.S. Rakhshani, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioners.

Malik Sikandar, Advocate-General, Balochistan for the Official Respondents.

M.K.N. Kohli, Advocate-on-Record for the Private Respondents Nos.4 to 10.

Date of hearing: 14th September, 1999.

2000 SCMR641

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. CJ. and Sh. Ijat Nisar, J

Mst. RASOOLAN BIBI---Petitioner

versus

THE STATE and another---Respondents

Criminal Petition for Leave to Appeal No.459-L of 1999, decided on 7th September, 1999.

(On appeal from the judgment/order, dated 13-7-1999 passed by the Lahore High Court, Lahore in Crl. 8.365 of 1997).

Penal Code (XLV of 1860)---

----S.302/148/149---Criminal Procedure Code (V of 1898), S.204--­Constitution of Pakistan (1973), Art. 185(3)---Complaint case ---Cross­cases---Complaint case has to be taken up first for trial and the police challan case to be taken up thereafter in cross-cases based on private complaint and police challan---Trial Court, however, was directed to pronounce judgments in both the cases simultaneously to avoid prejudice to any of the parties.

Nur Elahi v. The State PLD 1966 SC 708 fol.

Ehsan Ullah Lilla, Advocate Supreme Court for Petitioner. Nemo for Respondents.

Date of hearing: 7th September, 1999.

2000 S C M R 643

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ

DIRECTOR-GENERAL, PAKISTAN RANGERS (SINDH), KARACHI and another---Petitioners

versus

ABDUL RASHID ---Respondent

Civil Petitions for Leave to Appeal Nos. 1543-L of 1997 and 47-L of 1998, decided on 14th April, 1999.

(On appeal against the judgment and order, dated 13-8-1997 of the Federal Service Tribunal at Lahore in Appeal No.234(I) of 1997).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Termination of service---Service of civil servant was terminated without issuing him any show-cause notice and assigning any reason for such termination---Civil servant whose services were being governed by Service Rules had completed probation period of four years---Service Tribunal, in circumstances, had rightly found that termination of service of civil servant without issuing him any show-cause notice and without holding inquiry against him, was illegal and, thus, had rightly directed reinstatement of civil servant treating intervening period from date of termination to his reinstatement as .extraordinary leave without pay---In absence of any question of public importance, leave to appeal against order of Service Tribunal was refused

Ch. Muhammad Yaqub Sindhu, Advocate Supreme Court and Syed Abul Asim Jafri, Advocate-on-Record for Petitioner/Respondent (in C.P. No. 47-L.of 1998).

M.A. Aziz, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on.-Record fur Respondent./Cwiitioner (in C,P. 47-1., of 1998).

2000 S C M R 645

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munawar Ahmed Mina

and Ch. Muhammad Arif, JJ

Maj. ZIAUL HASSAN, HOME SECRETARY

and others---Petitioners

versus

Mrs. NASEEM CHAUDHRY---Respondent

Criminal Petition No. 510-L of 1999, decided on 20th October, 1999.

(On appeal from the judgment, dated 27-9-1999 of the Lahore High Court, Lahore in Cr.Org.No.279-W of 1999).

Civil service-

----Promotion---Supreme Court had found that civil servant had not been promoted by superseding any officer senior to her; she was entitled to be promoted from the date her juniors were promoted and there was no valid reason not to consider her for the promotion---Mere fact that some disciplinary proceedings were pending against the civil servant was not a sufficient ground to disregard the order passed by the Supreme Court--­Promotion of civil servant, however, would not debar the Authorities to continue with the disciplinary proceedings against the civil servant, if any, justly, fairly and in accordance with law.

Inspector-General of Police, Punjab, Lahore and others v. Mrs. Naseem Chaudhry and others C. P.L.A. No. 1617-L of 1997 ref.

Ghulam Haider Alghazali, Additional Advocate-General, Punjab and Rao Muhammad Yusuf, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 20th October, 1999.

2000 S C M R 647

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

AHMED DIN---Petitioner

versus

GHULAM MUHAMMAD through Legal Heirs and others---Respondents

Civil Petition for Leave to Appeal No.675-L of 1999, decided on 10th September, 1999.

(On appeal from the judgment/order dated 17-11-1998 passed by the Lahore High Court, Lahore in R.S.A. No.170/88).

Supreme Court Rules, 1980---

----O. XIII, R. 1---Constitution of Pakistan (1973), Art. 185(3)---Petition for leave to appeal---Delay in filing such petition ---Condonation---Delay of one hundred and twenty-three days in filing petition for leave to appeal was sought to be condoned by petitioner on ground that petitioner who was living in far off village could not receive letter from his counsel regarding dismissal of his appeal by High Court---Matter purely being between client and his counsel, opposite-party could not be penalized for alleged negligence of the counsel who allegedly could not inform petitioner in time---In absence of sufficient ground for condonation of delay, petition for leave to appeal was dismissed being barred by time.

S.M. Rashid, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Datre of hearing: 10th September, 1999.

2000 S C M R 648

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX---Petitioner

versus

Messrs HAMEED MODEL INDUSTRIES (PVT.) and another---Respondents

Civil Petition No. 510-L of 1999, decided on 24th September, 1999.

Supreme Court Rules, 1980---

----O. XIII, R. 1---Constitution of Pakistan (1973), Art. 185(3)---Petition for leave to appeal ---Delay---Condonation---Delay of two days in filing petition was sought to be condoned on the ground that petitioners (Government Department) first sought advice of Ministry of Law and Justice Division for filing the petition and thereafter certified copy of judgment was obtained and that delay had occurred due to completion of necessary official formalities in concerned Department of petitioners---Plea raised by petitioners related to their internal difficulties for which opposite-party could not be penalized--­Government did not enjoy any preferential treatment qua on ordinary litigant in the applicability of law of limitation.

M. Ilyas Khan, Senior Advocate Supreme Court and Ch. M. Aslam Chattha for Petitioner.

Date of hearing: 24th September, 1999.

2000 SCMR 649

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and

Sh. Ijaz Nisar, J

KHALID BASHIR---Petitioner

versus

MUHAMMAD ZUBAIR and others---Respondents

Civil Petition for .Leave to Appeal No.867-L of 1999, decided on 10th September, 1999:

(On appeal from the judgment/order, dated 29-1-1999 passed by the Lahore High Court, Lahore in C. R. No. 1952 of 1998).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Delay in filing petition--­Condonation---Delay of 86 days in filing petition was sought to be condoned on ground that counsel of petitioner did not inform petitioner about fate of the case---Such ground not constituting a valid ground for condonation of delay, petition for leave to appeal was dismissed being barred by time.

Sardar Nazar Hussain Dogar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 10th September, 1999.

2000 S C M R 650

[Supreme Court of Pakistan]

Present: Irshad Hassan Khan and Sh. Ijaz Nisar, JJ

ABDUL WAHID and others---Petitioners

versus

SARDAR ALI and others---Respondents

Civil Petition No. 1308-L of 1999, decided on 23rd September, 1999.

Punjab Pre-emption Act (IX of 1991)---

----S.24---Constitution of Pakistan (1973), Art. 185(3)---Suit for pre­emption ---Deposit of Zar-e-Soem---Petitioners/plaintiffs had not pressed petition for leave to appeal on merits, but had simply contended that order of Trial Court requiring petitioners to deposit Zar-e-Soem, could not be complied with by petitioners as Civil Courts remained closed during month of August, on account of summer vacation and no Duty Judge was available---Supreme Court in the interest of justice, extended date for depositing pre-emption amount for a period of one week subject to ail just exceptions.

Ch. Muhammad Hussain Naqashbandi, Advocate Supreme Court with S. Abul Asim Jafri, Advocate-on-Record for Petitioners.

Kh. Mushtaq Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 23rd September, 1999.

2000 S C M R 652

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Muhammad Bashir Jehangiri and Ch. Muhammad Arif, JJ

ABDUL SATTAR KHAN, DISTRICT AND SESSIONS

JUDGE, LAKKI MURWAT---Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 17-P of 1999, decided on 20th May, 1999.

(On appeal from the judgment/order, dated 16-12-1998 of the Peshawar High Court, Circuit Bench, D.I. Khan, passed in Criminal Miscellaneous No.8 of 1998).

Criminal Procedure Code (V of 1898)---

----Ss.369 & 561-A---Expunction of adverse remarks recorded in the judgment of High Court against a subordinate judicial officer---Rule that "Court was precluded from altering its findings already recorded in a criminal case" does not cover the case in relation to the making of adverse remarks against a judicial officer while disposing of "a criminal case" arising out of such judicial officer's judgment/order before the High Court---Supreme Court, converting the petition for leave to appeal of the judicial officer against such remarks into appeal and allowed the same to the extent of expunging the adverse remarks recorded against the judicial officer.

S. Zafar Abbas Zaidi, Advocate Supreme Court with Abdul Aziz Kundi, Advocate-on-Record for Petitioner.

M. Sardar Khan, Advocate-General, N.-W.F.P. for the State.

Date of hearing: 20th May, 1999.

2000 S C M R 656

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

EXECUTIVE ENGINEER, PROVINCIAL BUILDING CIRCLE, LAHORE---Petitioner

versus

MUZAFFAR BIL HAQ and 2 others---Respondents

Civil Petition No. 1741-L of 1999, decided on 23rd November, 1999.

(On appeal from the judgment of Punjab Service Tribunal, dated 29-7-1999 passed in Appeal No. 1080 of 1997).

Civil service--

---- Deputationist---Lien---Civil servant on deputation, who had never been absorbed permanently in the borrowing department would continue to be on deputation and his lien could not be terminated in his parent Department.

Aziz Ahmad Chughtai, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record for Petitioners.

M. Zaman Qureshi, Advocate Supreme Court and Qazi Mohyuddin, Advocate Supreme Court for Respondents Nos. 1 and 3.

Date of hearing: 23rd November, 1999.

2000 S C M R 657

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

Syed SAJJAD HUSSAIN and others---Petitioners

versus

GOVERNOR OF THE PUNJAB, LAHORE and others---Respondents

Civil Petitions Nos.781-L to 785-L and 788-L of 1999, decided on 16th September, 1999.

Constitution of Pakistan (1973)-- '

----Art.185(3)---Civil service---Termination of service---Constitutional petition against such termination was dismissed by High Court---Petitioners in petition for leave to appeal had challenged order of High Court and had sought their reinstatement---Employer Corporation having become non­-functional, no question would arise for reinstatement of petitioners—­Supreme Court on request of petitioners, allowed them to submit their applications under Golden Handshake Scheme on prescribed form within specified period which would be deemed to have been submitted before the target date.

Khizar Hayat, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Ahmed Awais, Advocate Supreme Court, M.A. Qureshi, Advocate-on-Record (absent) and Syed Sajid Ali Bokhari, MD, PRTC for Respondents.

Date of hearing: 16th September, 1999.

2000 SCMR 661

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sheikh Riaz Ahmed and Ch. Muhammad Arif, JJ

RIAZ HUSSAIN ---Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others---Respondents

Civil Appeal No. 331-L of 1999, decided on 23rd November, 1999.

(On appeal from the judgment dated 26-11-1998 passed by the Lahore High Court, Lahore in Civil Revision No. 1393 of 1998).

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Jurisdiction of High Court---Scope--Remand---Validity---Sufficient reasons existed for reaching the conclusion that the appellate forum had not considered the cause before it in accordance with the material brought on record by the parties---High Court was right in remanding the case directing the appellate forum to perform its functions in accordance with law.

Malik Noor Muhammad Awan, Advocate Supreme Court with S. Abul Aasim Jaferi, Advocate-on-Record for Petitioners..

Mohyuddin Qazi, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents Nos. l and 2.

Date of hearing: 23rd November, 1999.

2000 SCMR 667

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

THE PROVINCE OF PUNJAB through Secretary Health, Civil Secretariat, Lahore and another---Petitioners

versus

MUHAMMAD ANWAR --- Respondent

Civil Petition for Leave to Appeal No. 1,140-L of 1998, decided on 9th September, 1999.

(On appeal from the judgment/order, dated 18-2-1998, of the Lahore High Court, Lahore, passed in Civil Revision No. 1520-D of 1988).

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

----O.IX, Rr. 6 & 13---Constitution of Pakistan (1973), Art. 185(3)---Ex parte judgment and decree, setting aside of---Ex parte judgment and decree concurrently passed by Court below was affirmed by High Court--­Government being defendant in the suit, Government Pleader had failed to appear on the date fixed for hearing---Ex parte judgment was passed against Government and application filed under O. IX, R.13, C.P.C. for setting aside ex pane judgment and decree was also dismissed---Opposite-party/plaintiff could not be penalized for negligence of defendant/Government in not appearing before Court despite service---Valuable right having accrued to plaintiff/respondent by efflux of time he could not be deprived of the same--­Judgment of High Court not suffering from any illegality could not be interfered with by Supreme Court.

Muhammad Nawaz Bhatti, Additional Advocate-General, Punjab with Rao Muhammad Yousuf Khan, Government Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 9th September, 1999.

2000SCMR669

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Abdur Rehman Khan, JJ

DEPUTY INSPECTOR-GENERAL OF POLICE---Petitioner

versus

SHAFIQUE-UR-REHMAN and others---Respondents

Civil Petition for Leave to Appeal No.494-L of 1998, decided on 29th July, 1999.

(On appeal from the judgment/order, dated 9-12-1997 of Punjab Service Tribunal, Lahore passed in Appeal No.329 of 1994).

Police Rules, 1934---

----R.16.2(2)---Constitution of Pakistan (1973), Art. 212(3)---Misconduct--­Dismissal from service---Reinstatement---Civil servant serving as Inspector of Police was dismissed from service after issuing him show-cause notice on allegation of misconduct---Service Tribunal ordered reinstatement of civil servant holding that case of civil servant was of discrimination--­Co-civil servant similarly placed having been reinstated by Authority, Service Tribunal had rightly ordered reinstatement of civil servant---No question of law of public importance having been raised warranting interference of Supreme Court, petition for leave to appeal was dismissed.

Ras Tariq Chaudhry, Advocate Supreme Court with C.M. Lateef, Advocate-on-Record for Petitioner.

Sh. Abdul Aziz, Advocate Supreme Court with Sh. Salahudd Advocate-on-Record for Respondents -Nos. l to 3.

2000 S C M R 672

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Khalil-ur-Rehman Khan, JJ

SHER MUHAMAMD and another----Petitioners

versus

MAHMOOD BAKHSH and 17 others---Respondents

Civil Petition for Leave to Appeal No.642-L of 1998, decided one Ist December, 1999.

(On appeal from the judgment, dated 17- -199 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.98-D of 1998).

Muhammadan Law---

----Inheritance---Deceased survived with one daughter, children of predeceased daughter and a sister---Petitioners claimed inheritance in the estate of the deceased on the basis of their being collaterals of deceased--­Validity---Deceased was whether "Shia" or "Sunni", the petitioners could in either case, have no right to inherit any share in the estate left by the deceased---Findings of the two Courts below and that of the High Court were upheld---No fault could be found with the judgment of the High Court, as the same proceeded on correct application of the relevant principles of law to the facts and circumstances of the case---Supreme Court declined-to interfere with order of the High Court---Leave to appeal was refused in circumstances.

Mulla's Mahomedan Law, 1981 Pakistan Edn., Chap. VIII, Item 88 ref.

Mubashir Lateef Ahmed, Advocate Supreme Court for Petitioners.

Malik Saeed Hasan,. Senior Advocate Supreme Court for Respondents.

Date of hearing: 1st December, 1999. ,

2000 S C M R 675

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

Mst. AMENA BIBI and others---Petitioners

versus

ABDUL HAQEES and others----Respondents

Civil Petition No. 1422 of 1999, decided on 14th September, 1999.

Supreme Court Rules, 1980---

----O. XIII, R.1---Constitution of Pakistan (1973), Art 185(3)---Petition for leave to appeal---Delay in filing the petition ---Condonation---Delay of fifty ­three days in filing petition was sought to be condoned on ground that Supreme Court was closed in the month of July for summer vacations--­ Petitioner who had obtained copy of impugned judgment of High Court in the month of May, could easily file said petition within time when Supreme Court was open---Even otherwise Registries of Supreme Court being non­ vacation offices, petitioner could file petition even if Supreme Court was closed due to summer vacation---Petitioner, having failed to explain each day of limitation satisfactorily, petition was dismissed being barred by time.

Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 and Lehar Khan and others v. Amir Hamza and others 1999 SCMR 108 ref.

M. Munir Peracha, Advocate Supreme Court for Petitioners.

Date of hearing: 14th September, 1999.

2000 S C M R 677

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

BAHADAR KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.362-L of 1999, decided on 3rd August, 1999.

(On appeal from the order of the Lahore High Court dated 6-7-1999 passed in Criminal Miscellaneous No.748-B of 1999).

Criminal Procedure Code (V of 1898)--

----S. 497---Control of Narcotic Substances Act (XXI of 1997), S. 6/9--­Bail, grant of---Nothing had been recovered from accused who was in jail since long and trial against him had not yet commenced---Case against accused being of further inquiry, was admitted to bail.

Pervaiz I. Mir, Advocate Supreme Court with Shehryar Sheikh, Advocate High Court with permission for Petitioner.

Ch. Muhammad Ibrahim, Advocate Supreme Court for the State.

Date of hearing: 3rd August, 1999.

2000 SCMR 678.

' [Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Nasir Aslant Zahid

and Abdur Rehman Khan, JJ

Messrs BABA KHAN---Petitioner

versus.

COLLECTOR OF CUSTOMS, QUETTA and 2 others---Respondents

Civil Petitions Nos. 324-Q to 330-Q of 1999, decided on 2nd December, 1999.

(On appeals from the judgment dated 23-8-1999 of the Balochistan High Court passed in Customs Appeals Nos 6 and 7 of 1999).

Customs Act (1V of 1969)---

----Ss. 32 & 79---Constitution of Pakistan (1973), Art. 185(3)--­Misdeclaration or wrong statement at border about goods imported---Goods arrived at the border were meant to be cleared from customs at Dry Port---Statement was required to be made at the border about the imported goods being transported to Dry Port---Where a misdeclaration was made at the border to avoid payment of duty or with the object of importing goods which were totally prohibited for import, High Court had rightly found that concerned Authorities at the border where such declaration was made, were entitled to examine whether the goods corresponded to the declaration made, so that no change in the goods could take place from the starting point at border to the Dry Port---Such statement or declaration at the starting point related to a matter of customs attracted penal provisions of S.32(1) of Customs Act, 1969, in case the same was untrue in any material particulars---No error was found -in the interpretation . of S.32 (1), of Customs Act, 1969, made by High Court---Supreme Court declined to interfere with the judgment and finding of High Court---Petition was dismissed.

H. Shakil Ahmed, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate-on-Record (absent) for Petitioner (in all the Petitions).

Nemo for Respondents.

Date of hearing: 2nd December, 1999.

2000SCMR683

[Supreme Court of Pakistan]

Present: Muhammad Bahsir Jehangiri, Khalil-ur-Rehman Khan and Mamoon Kazi, JJ

TAYYAB HUSSAIN SHAH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 145 of 1999, decided on 8th December, 1999.

(On appeal from the order, dated 21-1-1998 of Lahore High Court, Lahore passed in Criminal Appeal No.288 of 1994).

(a) Penal Code (XLV of 1860)---

----S. 302/34---Appraisal of evidence---Accused did not appear to have made any confession and police had coined the extra judicial confession and to support the same a retired police official, who was related to the family of the deceased, -had been made a prosecution witness who could not safely be relied upon---Independent piece of direct or substantial evidence in corroboration of the retracted confession for basing conviction in order to ensure safe administration of justice, was not available on the record--­Investigating Officer had not made any efforts to join any member of the public to witness the recovery of the gun at the instance of accused which was not reliable and once the recovery of the gun was considered doubtful, the report of Fire-arm Expert that the empty recovered from the spot matched with the gun had lost its significance---Accused was not named in the F.I.R. and his mere abscondence could not be made basis for holding him guilty of the offence---Accused was acquitted on benefit of doubt in circumstances.

Bahadur Khan v. The State PLD 1995 SC 336; Allah Ditta v. The State 1977 SCMR 251 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

(b) Penal Code (XLV of 1860)--

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art. 37---Appreciation of evidnece---Extra judicial confession---Extra-judicial confession being a weak type of evidence cannot be made basis to determine the question of guilt or innocence of accused till the same is corroborated by other incriminating and confirmatory evidence.

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

----S. 103---Penal Code (XLV of 1860), S.302/34---Search in presence of witnesses---Mandatory requirement---Requirement of making two members of the public of the locality as Mashirs to the recovery is mandatory unless it was shown by the prosecution that it was not possible in the circumstances of the case to have two Mashirs from the public.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

Malik Noor Muhammad Awan, Advocate Supreme Court for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 8th December, 1999.

2000 SCMR 689

[Supreme Court of Pakistan]

'

Present: Irshad Hasan Khan and Raja Afrasiab Khan, ii

MANZOOR ALI CHAUDHRY, CHIEF ENGINEER, HIGHWAY (SOUTH ZONE), PUNJAB, 2-LAKE ROAD, LAHORE---Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary, Communication and Works Department, Lahore and 10 others---Respondents

Civil Petition for Leave to Appeal No.250 of 1998, decided on 20th December, 1999.

(On appeal from the judgment, dated 23-2-1998 passed by Punjab Service Tribunal, Lahore in Appeal No. 772 of 1995).

(a) Punjab Service Tribunals Act (IX of 1974)---

----S.4---Appeal---Limitation---Seniority list, dated 10-9-1981 was neither circulated nor gazetted at that time but was circulated on 1-6-1988--­Appellant who made representation to the Department on 22-8-1988 having not received any response from the Departmental Authority filed Constitutional petition in the High Court whereupon direction was issued to the Department to dispose of the representation of appellant within a period of 30 days---Department, however, rejected the representation of appellant finally---Appeal filed by the appellant thereafter, held, was rightly treated as within time by the Service Tribunal in circumstances.

(b) Constitution of Pakistan (1973)---­

----Art.212(3)---Civil service---Seniority---Both the contesting civil servants were recruited temporarily on the same date, one in the cadre of Civil Engineering while other in Electrical and Mechanical Engineering--=Public Service Commission had not determined tile seniority of both the civil servants for they belonged to different cadres (which later on were merged)-­-Department in accordance with the principles and criteria laid down in Government circular in view of such merger of cadres determined the seniority of both the civil servants and found that in circumstances the older (in age) officer will be given seniority over the other---Judgment of Service Tribunal holding the older civil servant senior to the contesting civil servant not suffering from any illegal infirmity, Supreme Court. Declined interference.

Muhammad Sohail v. Government of N.-W.F.P. 1996 SCMR 218 and M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145 and Saleem Akhtar Bhalli v. Secretary to Government of the Punjab, Communications and Works Department, Lahore 1985 SCMR 950 distinguished.

(c) Constitution of Pakistan (1973)--

----Art. 212(3)---Petition for leave to appeal---Controversy raised in the petition related to an individual grievance of the petitioner---Case did not involve a substantial question of law of public importance warranting leave to appeal---Petition was dismissed.

Dr. A. Basit, Advocate Supreme Court assisted by Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

Saleem Sehgal, Advocate Supreme Court and M. Aslam Ch., Advocate-on-Record for Respondent No.3.

Date of hearing: 14th December, 1999.

2000 SCMR695

[Supreme Court of Pakistan]

Present: Saiduztaman Siddiqui, CJ, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

Prince Shaikh ABDUL QADIR---Petitioner

versus

Late Nawab Shaikh NASIRUDDIN and 7 others---Respondents

Civil Petition for Leave to Appeal No.655-K of 1998, decided on 2nd August, 1999.

(On appeal from the judgment of the High Court of Sindh, Karachi. dated 12-8-1998 passed in H. C. A. No. 129 of 1986).

(a) Rulers of Acceding States (Abolition of Privy Purses and Privileges) Order (15 of 1972)---

----Preamble---Acceding State (Property) Order (12 of 961), Arts.3, 4 & 7---Rulers (Recognition of Successors) Order (15 of 1960), Preamble--­Rulers of Acceding States (Abolition of Privy Purses and Privileges) Order, 1972 was not contrary to the postulations in Arts. 3, 4 & 7 of the Acceding State (Property) Order, 1961 but, in fact, was supplemental to Acceding State (Property) Order, 1961 and to the Rulers (Recognition of Successors) Order, 1960.

Upon close scrutiny of Rulers of Acceding States (Abolition of Privy Purses and Privileges) Order, 1972, there is nothing which runs contrary to the postulations in Article 3, 4 and 7 of Acceding States (Property) Order, 1961. The Order of 1972, in fact, is supplemental, not only to President's Order of 1961 but also to the Rulers (Recognition of Successors) Order, 1960. Nothing, therefore, turns upon the advent of President's Order of 1972.

Government of Pakistan v. Nawab Muhammad Abbas Khan Abbasi, PLD 1962 -SC 367. .and Muhammad Abbas Khan Abbasi v. Government of Pakistan PLD 1984 SC 67 distinguished.

D.S. Meamwala Bhayawala v. Shri Amarbas Jethsurbhai 1968 Guj. Law Rep. 609 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of superior Courts---Scope---While exercising its Constitutional jurisdiction a superior Court is not precluded from scrutinising the lawfulness or otherwise of a particular act or transaction even though scrutiny thereof is barred by a sub-Constitutional legislation.

(c) Acceding State (Property) Order (12 of 1961)---

----Arts. 3, 4 & 7---Constitution of Pakistan (1973), Art. 185(3)---Dispute pertaining to properties allegedly left by Ruler arising between the heirs and Ruler constituted a dispute as covered by Art. 3, Acceding State (Property) Order, 1961 and could only be adjudicated upon by the Central Government and outcome of the adjudication itself was barred from judicial scrutiny under Art. 7 of the said Order---Nothing having been found patently amiss in the concurrent findings of the High Court, at its original and appellate levels, Supreme Court still permitted the petitioner to ventilate his grievance, if any, and if so advised, before the Central Government which recourse, if and when taken, would not be negatived, solely, on the ground of laches and that aspect would be sympathetically considered because of the petitioner having apparently pursued another remedy diligently and in good faith before a forum which ex facie did not have jurisdiction---Even so, it would remain for Central Government to consider the questions, whether the rule of primogeniture, invoked by the petitioner's brother, the last Ruler, did. not apply at the time the succession opened, namely the year 1943; whether the last Ruler filled the character or capacity of a Ruler in contemplation of Acceding States (Property) Order, 1961 and other promulgations on the subject and whether any legal change could take place, and if so, to what effect, when ,the relevant personal claims for compensation were filed in Pakistan or the properties in lieu thereof, obtained here---Central Government, in reaching any conclusion on merits, but only if that becomes ,necessary, the evidence and other material placed before the High Court may be relied upon, though conclusions reached there may be deviated from provided that due reasons were cited therefor.

Abul Khair, Advocate-on-Record for Petitioner.

Raja Qureshi, Advocate Supreme Court and N.C. Motiani, Advocate-on-Record (absent) for Respondents. .

Date of hearing: 2nd August,- 1999.

2000 S C M R 702

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Wajihuddin Ahmed, JJ .. , Messrs SUI SOUTHERN GAS COMPANY LTD.

and another---Petitioners

versus

Khawaja MUHAMMAD MUNIR and another---Respondents

Civil Petition No.353-K of 1999, decided on 22nd December, 1999.

(On appeal from the judgment of the Sindh High Court, Karachi, in Constitutional Petition No.D-1125 of 1998).

(a) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court---Judicial errors of the ordinary Courts of civil or criminal jurisdiction---Invocation of Constitutional remedy under Art.199 of the Constitution ---Scope--­Exception.

It is not a practice of the superior Courts to allow invocation of the Constitutional remedy under Article 199 in order to correct judicial errors of the ordinary Courts of civil or criminal jurisdiction. In matters, originating from those jurisdictions, where the High Court, routinely, exercises appellate or revisional powers, the normal recourse to such appellate or revisional proceedings has always been found to be preferable and Constitutional jurisdiction, correspondingly barred in the face of the alternative and equally efficacious remedies. However, like all rules, this, also, carries some exceptions. One such exception arises, where no statutory remedy remains available to be invoked before the High Court and the impugned order passed by the relevant forum is found to be without jurisdiction or otherwise void.

If that be so and the Constitutional jurisdiction is attracted, such may, in the discretion of the Court, be allowed to be resorted to.

Badaruddin v. Ahmad Raza PLD 1993 SC 399 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S. 2-A---M Constitution of Pakistan (1973), Arts. 212(2) & 199--­

Experssion "proceedings" in Art. 212(2), Constitution of Pakistan (1973)--­

Meaning---Employee had already retired from service and had obtained a

decree for money hefore the insertion of S.2-A in Service Tribunals

Act, 1973 and the said decree had in due course, att4ined finality ---Effect--­

Mere filing or continuation of execution qua a decree in the nature of a past

and closed transaction, would not constitute any pending proceedings which

would, in the normal course, abate, pursuant to the mandate in Art.212(2) of

the Constitution---Civil Courts acted beyond jurisdiction when they found

the execution proceedings of such decree to have abated in consequence of

Art:212(2) of the Constitution---Extending relief in the exercise of the High

Court's jurisdiction under Art. 199 of the Constitution stood fully attracted

and was also, eminently, a judicious use of discretion. [p. 705] B : ..:z.r~ ..-,f.

Badaruddin v. Ahmad Raza PLD 1993 SC 399 ref.

Ch. Muhammad Tamil, Advocate Supreme Court and Muzaffar Ali Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent No. 1, Date of hearing: 22nd December, 1999.

2000 S C M R 706

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

THE MEMBER, BOARD OF REVENUE---Petitioner

versus

FAROOQ AHMED and others---Respondents

Civil Petition for Leave to Appeal No. 1035-L of 1999, decided on 13th September, 1999.

(On appeal from the judgment/order, dated 3-9-1999 passed by the Lahore High Court, Lahore in W.P. 44-R of 1993).

Constitution of Pakistan (1973)---

----Art.185(3)---Limitation Act, (IX of 1908), S.5---Petition for leave to appeal---Delay in filing petition ---Condonation---Delay of 235 days in filing petition was sought to be condoned on ground that various Government Departments were involved in processing the case---Such ground hardly constituting a valid cause for condonation of delay, petition for leave to appeal was dismissed being time-barred.

Ch. Muhammad Anwar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

N.S. Nasim, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 13th September, 1999.

2000 S C M R 707

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Mamoon Kazi, JJ

ZAHOOR AHMAD---Petitioner

versus

Mst. RUKHSANA KAUSAR and 4 others---Respondents

Civil Petition No. 1254 of 1998, decided on 24th January, 2000.

(On appeal from the judgment, dated 14-4-1998 of the Lahore High Court, Lahore, passed in Writ Petition No. 18561 of 1995).

Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art. 185(3)---Custody of minor--- Father of minor sought custody of child who was living with his maternal grandparents---Father who had contracted second marriage-with two children therefrom, was working abroad and did not appear in person to make himself available for cross-examination as to his living conditions abroad so as to enable Court to adjudicate upon as to whether the welfare of the minor lay in delivering his custody to him or not---Minor was summoned in the High Court and was examined whereupon he informed the Court that he was happily residing with the maternal grandparents and had no desire to go over to his father---High Court had inferred from the facts that father of the minor had filed the petition for custody of the minor just as a counterblast to the petition for grant of maintenance of the minor---Father had been stating throughout the proceedings before the lower forum and High Court that he was financially better off and well-to-do man of status and could afford to give better education to his minor son as a father and mother having contracted second marriage and having five children from her new marriage was ill-equipped to properly bring up and educate her minor son---Two Courts below, however, had reached a definite conclusion that so far as financial status of two families was concerned, they were almost equal--­High Court had found that father being abroad earning his livelihood as labourer could not possibly e a fit person to hold the custody of the minor indirectly through his own parents and if the minor had to live with the grandparents, then the maternal grandparents who were fully looking after the minor and educating him under the general supervision of his mother would be more entitled to the custody because minor had developed grandson's ties with them rather than to paternal grandparents---Supreme Court being satisfied with the treatment already meted out to the case, declined interference with judgment of High Court---Petition for leave to appeal was dismissed accordingly.

Muhammad Ikram Chaudhary, Advocate Supreme Court instructed by M.Q. Zaidi, Advocate-on-Record for Petitioner.

M. Bilal, Advocate Supreme Court instructed by Ejaz M. Khan, Advocate-on-Record for Respondents.

Date of hearing: 24th January, 2000.

2000SCMR712

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

MUHAMMAD LATIF MUGHAL---Petitioner

versus

THE ELECTION TRIBUNAL, PUNJAB, LAHORE---Respondent

Civil Petition No. 180-L of 1997, decided on 5th July, 1999.

Representation of the People Act (LXXXV of 1976)---

----S.14(3)---Election---Person himself being not a candidate in election could not file appeal against the order of the Returning Officer in terms of S.14(3) of the Representation of the People Act, 1976.

Khan A. Hamid, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Maqbool Ilahi Malik, Senior Advocate Supreme Court with Mahmood-ul-Islam, Advocate-on-Record for Respondent.

2000SCMR713

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Munir A. Sheikh, JJ

Mst. BAKHSHAI and others---Petitioners

versus

QUTUB-UD-DIN and others---Respondents

Civil Petition for Leave to Appeal No.616-L of 1998, decided on 14th December, 1999.

(On appeal from the judgment, dated 18-3-1998 of the Lahore High Court, Bahawalpur Bench passed in RSA No.588 of 1977).

(a) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 25---Pre-emption suit---Plaintiff claimed his superior right in 1970 on the ground that he was collateral of the vendor, joint owner in the Khata and owner in the estate ---Vendee on 23-10-1970, during the pendency of pre­emption suit, sold the land to a lady who was already tenant over the said land---First right of pre-emption was created in favour of the tenant qua the land comprising his tenancy on promulgation of para.25 of Land Reforms Regulation, 1972 and on this basis subsequent vendee claimed that she having been conferred a superior right of pre-emption as compared to the plaintiff with effect from March, 1972, as such the pre-emptor having failed to keep and maintain his superior right of pre-emption up to the date of final judgment by the Trial Court, his suit was liable to be dismissed ---Validity--­Sale by vendee in favour of subsequent vendee on 23-10-1970 was not in recognition of her superior right of pre-emption qua the plaintiff, for on the said date, she did not have right of -pre-emption superior to the plaintiff as tenant under the relevant law---Subsequent sale by vendee being ordinary sale made during the pendency of the suit, on the purchase of land from the vendee by subsequent vendee, she had lost even her status of tenant, and status of tenant had merged into the superior status of full owner of the land---Subsequent vendee could not be the tenant in her own land after having become owner of the land through purchase---Subsequent vendee, on the promulgation of M.L.R. 115 in 1972 was not holding the land as tenant, therefore, the very basis that she had superior right of pre-emption as tenant over the land in dispute with effect from the said date was wholly misconceived---Contention of subsequent vendee to the effect that she had acquired right of pre-emption in 1972 as tenant of land in dispute by purchasing the land in 1970 was repelled, for, with the purchase of the land, even her status as tenant was lost.

(b) Punjab Pre-emption Act (I of 1913)---

----S.21-A---Permissible improvement in the status of vendee to defeat the right of pre-emption of plaintiff during the pendency of suit.

Section 21-A of the Punjab Pre-emption Act, 1913 provided that during the pendency of the suit, the only improvement permissible in the status by the vendee to defeat the right of pre-emption of the plaintiff was by way of inheritance and not otherwise. If the original vendee could not improve his status in any way other than the inheritance, he could not by sale of the land during the pendency of the suit confer on his transferee a better right as regards improvement of status.

Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Shahid Hussain Qadri, Advocate Supreme Court and M. Aslam Ch., Advocate-on-Record for Respondents.

Date of hearing: 14th December, 1999.

2000SCMR716

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J. and Sh. Ijaz Nisar, J

Mrs. ANNETTA HAROON---Petitioner

versus

Mst. SUGHRAN BIBI and others----Respondents

Civil Petition for Leave to Appeal No.1054-L of 1999, decided on 13th September, 1999.

(On appeal from the judgment, dated 9-6-1999 passed by Lahore High Court; Lahore in Writ Petition No.9566 of 1999).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 2(c)(i)---Constitution of Pakistan (1973), Art. 185(3)--­Relationship of landlord and tenant---Stay of ejectment proceedings--­Petitioner/tenant denied relationship of landlord and tenant between the parties alleging that agreement of sale in respect of premises in dispute had been executed between petitioner and other co-owner of premises and that suit for specific performance of said agreement of sale was pending---Rent Controller stayed ejectment proceedings on ground of pendency of suit for specific performance of agreement---Order of Rent Controller was set aside by High Court in Constitutional petition---Validity---Petitioner/tenant did not claim any agreement of sale from respondent/landlord, but had claimed agreement from other co-sharers---Mere execution of said agreement of sale could not either suspend tenancy or take away jurisdiction of Rent Controller to entertain and decide ejectment petition---High Court, in circumstances, was right in holding that order of Rent Controller whereby ejectment proceedings were stayed, suffered from patent jurisdictional error.

Khalique Ahmad v. Abdul Ghani and another PLD 1973 SC 214; Haji Jan Muhammad v. Ghulam Ghaus and 2 others 1976 SCMR 141 and Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 ref.

Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Date of hearing: 13th September, 1999.

2000SCMR718

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Nasir Aslam Zahid and Mamoon Kazi, JJ

SHAH WALI and others ---Appellants

versus

FEROZUDDIN and others---Respondents

Civil Appeals Nos.623 to 626 of 1993, decided on 30th December, 1999.

(On appeal from the judgment of the High Court of Sindh, dated 25-11-1992 passed in C. Ps. Nos. D-798 of 1989, D-393 of 1990 and D-471 of 1990).

(a) Karachi Port Trust Act (VII of 1856)---

----Ss.23, 24 & 79-A---Constitution of Pakistan (1973), Arts. 185(3) & 199-­-Appointment of employees in Karachi Port Trust---Power to make such appointments---Leave to appeal was granted by Supreme Court to examine legality of the' judgment passed by the High Court and to determine the question as to the authority which was competent to make such appointments.

(b) Constitution of Pakistan (1973)----

----Art.199---Constitutional jurisdiction of High Court---Scope---Factual controversy ---Determination of---High Court could not decide the controversy which was purely a factual one.

(c) Karachi Port Trust Act (VI of 1886)---

----Ss.23, 24 & 79-A---Appointment etc. of officers and servants---Powers of Federal Government---Scope and extent.

Power to appoint officers or servants of the Board vests in the Board itself. However, such appointment would be subject to the sanction by the Federal Government in case the officer to be appointed holds a post in the scale of which the maximum is not less than eleven hundred rupees. Section 79-A of the Karachi Port Trust Act, 1886 further indicates that the Federal Government has been vested with overall authority, overall acts and proceedings of the Board of Trustees as the same have been made subject to the control of the said Government which has been further empowered to cancel, suspend or modify any such act or proceedings.

In the present case, there was no controversy in regard to the fact that although the Board accorded approval to the appointment to the post of General Manager (Finance) who, admittedly had better qualifications than respondent for the said post, nevertheless the latter was appointed by the Federal Government. There was also no controversy in regard to the fact that the appointment by the Board of Trustee was based on merit and within the framework of the Karachi Port Trust Act as the incumbent fulfilled all the requirements laid down by the Board. However, the Government in clear violation of the provisions of sections 23 and 24 of the Act selected respondent for the said post. Admittedly, the said respondent at the time of his selection was serving at Airport Development Agency and had not even been interviewed by the Board's Selection Committee, neither was he recommended by the Board of Trustees of the Karachi Port Trust. There was, therefore, no doubt that the appointment of respondent was made contrary to the law and practice of the Karachi Port Trust.

General instructions of the Government could not override the provisions of the Act which clearly vested the Board of Trustees of the I Karachi Port Trust with power to make appointments of all officers and servants and the same was only made subject to the approval of the Federal Government or any modification or cancellation that may be made by it under section 79-A of the Act. Therefore, the Federal Government had clearly exceeded its authority while making the said appointment.

Ali Akbar, Advocate-on-Record for Appellant (in C.A..No.623 of 1993).

S. Hamid Hussain, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. l (in C.A. No.623 of 1993).

Respondents Nos.2 and 3: Ex parte (in C.A. No.623 of 1993).

Ali Akbar, Advocate-on-Record and K.A. Wahab, Advocate-on­-Record for Appellants (in C.A. No.624 of 1993).

Manzoor Ali Khan, Advocate Supreme Court for Respondent No. l (in C.A. No.624 of 1993).

S. Hamid Hussain, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.2 (in C.A. No.624 of 1993).

Appellant in person (in C. A. No.625 of 1993).

S. Hamid Hussain; Advocate Supreme Court for Respondent No.5 (in C.A. No.625 of 1993). '

Appellant in person (in C.A. No.626 of 1993).

Manzoor Ali Khan, Advocate Supreme Court for Respondent No.l (in C.A. No.626 of 1993).

S. Hamid Hussain, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.5 (in C.A. No.626 of 1993).

Date of hearing: 30th December, 1999.

2000 S C M R 725

[Supreme Court of Pakistan]

Present: Nasir Aslant Zahid and Kamal Mansur Alain, JJ

KARACHI WATER AND SWERAGE BOARD through

Managing Director---Petitioner

versus

MAIRAJUDDIN and 2 others---Respondents

Civil Petition No.391-K of 1998, decided on 20th August, 1999.

(On appeal from the judgment dated 14-5-1999 of the Sindh High Court passed in H. C. A. No. 167 of 1998).

Fatal Accidents Act (III of 1855)---

----S.1---Suit for compensation---Grandparents of deceased were not included in the list of heirs of the deceased under Muslim Law---Suit having been filed by father of the deceased, mere fact that grandparents of the deceased had wrongly been mentioned as heirs of the deceased in the plaint would not affect the competence or maintainability of the suit.

Syed Ansar Hussain, Advocate Supreme Court for Petitioner. Respondent No. l in person.

Date of hearing: 20th August, 1999.

2000 S C M R 727

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan, Abdur Rehman Khan and Kamal Mansur Alam, JJ

MUHAMMAD AKHTAR ALI---Petitioner

versus

THE STATE---Respondent

Jail Petition No. 89 of 1999, decided on 19th January, 2000.

(On appeal from the judgment, dated 11-8-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeal No.77-J of 1997).

Penal Code (XLV of 1860)--

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Eye-witnesses having no previous ill-will or grudge against the accused could not be termed as interested witnesses and their, relationship with the deceased alone could not make them interested as they had no reason to substitute the accused for the real killer---Prosecution was not bound to examine all the eye-witnesses in the Trial Court if it considered that the guilt of accused could be established by examining some of them---Non-examination of the remaining two eye-witnesses by the prosecution had neither adversely affected its case nor the evidentiary value of the examined eye-witnesses---Delay in lodging the F.I. It, was fully explained and the delay, if any, was inconsequential in the circumstances of the case---Accused had committed the murder of a young girl of 13/16 years without any justification in a brutal manner acting as a desperate and hardened criminal and had fired two shots at the innocent girl---Imposition of normal penalty of death was fully justified in circumstances---Conviction and sentence of accused were upheld accordingly by refusing him leave to appeal.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 19th January, 2000.

2000SCMR731

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Sh. Ijaz Nisar and Mamoon Kazi, JJ

RASOOL BAKHSH---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos. 8 and 9 of 1993, decided on 20th January, 2000.

(On appeal from the judgment of the High Court of Balochistan, dated 7-7-1993 passed in Criminal Appeal No. 131 of 1992).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---West Pakistan Arms Ordinance (XX of 1965), S.13-E--­Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to accused to consider whether case was that of murder falling under 5.302, P.P.C. or that under "Ikrah-i-Naqis" falling under S.303(b), P.P.C. and whether the evidence in the two cases had been properly evaluated by the Courts below.

(b) Penal Code (XLV of 1860)---

----S.302(b)---West Pakistan Arms Ordinance (XX .of 1965), S.13-E--­Appraisal of evidence---Confession of accused no doubt, had been recorded by the police after about ten days of his arrest and had been retracted by him, but the same was not at variance with other prosecution evidence and could still be relied upon---Said confession was corroborated by the recovery of crime empties from the place of incident and that of the shot-gun at the instance of accused---Recovery of the said gun although was not witnessed by an independent witness as required by S.103, Cr.P.C. but it had laid down only a rule of procedure and not that of evidence and evidence of a police officer could be relied upon in the absence of easy procurement of an independent witness---Empties recovered from near the dead bodies according to report of the Ballistic Expert had been fired from the gun recovered at the behest of accused---Medical evidence had also supported the prosecution case---Circumstances of the case did not indicate the offence having been committed under "Ikrah-i-Naqis"-----Deceased had not become the victims of any sudden provocation on the part of accused---Murder could not be condoned on the ground of "Siah-Kari" and notwithstanding such allegations had to be punished with death in the absence of mitigating circumstances---Accused had already been dealt with leniently in the case and awarded lesser punishment of imprisonment for life---Confession made by accused appeared to be voluntary---Convictions and sentences of accused were upheld in circumstances.

Mst. Naseem Akhtar v. The State 1999 SCMR 1744 ref.

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

---S.103---Search to be made in presence of witnesses---Section 103, Cr.P.C. only lays down a rule of procedure and not that of evidence---When an independent witness is not easily procurable and the, rule laid down by 5.103, Cr.P.C. cannot be strictly followed, evidence of a Police Officer under such circumstances can be relied upon.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellant.

M. Ashraf Khan Tanoli, A.-G., Balochistan for the State.

Date of hearing: 20th January, 2000.

2000SCMR735

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Munir A. Sheikh, JJ

Dr. WAQAR HUSSAIN ---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 202 of 1999, decided on 2nd February, 2000.

(On appeal from the judgment/order, dated 21-12-1998, of the Lahore High Court, Lahore passed in Suo Motu Notice issued in Criminal Miscellaneous No.5496-B of 1998).

(a) Prevention of Corruption Act (II of 1947)---

----S.5(2)---Penal Code (XLV of 1860), S .161/223/219/109/120-B--­Criminal Procedure Code (V of 1898), S. 439---Constitution of Pakistan (1973), Art. 185(3)---Suo Motu notice issued to accused by High Court for cancellation of bail---Law had conferred suo motu powers of revision on High Court to ensure that the Courts subordinate to it had acted strictly within the legal bounds without transgressing their jurisdiction and the findings, sentence or orders recorded or passed by them were just and legal, but nevertheless in order to avoid any impression of arbitrariness in the exercise of such power, the order of initiating suo motu proceedings by the High Court should have mentioned the ostensible error or irregularity in the orders or proceedings of the subordinate Courts in order to enable the parties to know the reasons for such an action---High Court, no doubt, had the jurisdiction to initiate suo motu proceedings by issuing notice to the accused for cancellation of his bail, but in view of the well reasoned order of the Special Judge granting bail to the accused, no circumstances justifying the suo motu action against him by the High Court were available---Petition for leave to appeal was consequently converted into appeal and the suo motu proceedings initiated by the High Court against the accused were quashed.

Emperor v. Varjivandas alias Kalidas Bhaidas -ILR 27 Bom. 84; Mushtaq Ahmad v. The State PLD 1966 SC 126; Ramgopal Ganpatrai Ruia and another v. State of Bombay PLD 1958 SC (Ind.) 293 and Khatija v. The State and another PLD 1978 Kar. 348 ref.

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

----S. 439---Revisional jurisdiction being. corrective jurisdiction power of High Court under S.439, Cr.P.C. was not a power only but a duty whenever facts calling for its jurisdiction were brought to its notice or otherwise came to its knowledge.

Emperor v. Varjivandas alias Kalidas Bhaidas ILR 27 Bom. 84; Mushtaq Ahmad v. The State PLD 1966 SC 126; Ramgopal Guanpatrai Ruia and another v. State of Bombay PLD 1958 SC (Ind.) 293 and Khatija v. The State and another PLD 1978 Kar. 348 ref.

Munir Ahmed Bhatti, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner:

M. Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 2nd February, 2000.

2000SCMR741

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ

MUHAMMAD ASHRAF---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.25-L of 1999, decided on 12th July, 1999.

(On appeal against the order, dated 9-12-1998 of the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.9 of 1995 and Murder Reference No.54 of 1995).

Penal Code (XLV of 1860)---

----Ss.302 & 324---Constitution of Pakistan (1973), Art.185(3)---Plea of grave and sudden provocation was not supported by record---Non-production of same eye-witnesses named in the F.I.R. was of no consequence as the prosecution was not bound to examine all the witnesses in the Trial Court--- Father of the deceased had lodged the F.I.R. with promptitude and could not be expected to have substituted the accused with the real culprit responsible for the murder of his son---Ocular account of occurrence furnished by father of the deceased was truthful and was corroborated by the injured witness in all material aspects of the case whose presence at the scene of occurrence could not be doubted---Prosecution case was further corroborated by the report of the Forensic Science Laboratory according to which the empties preserved from the spot had matched with the pistol recovered at the instance of accused---Accused had fired two shots at the deceased and two shots at the injured witness, fifth shot was missed and he being still not contended with the same picked up a "Kassi" and caused two blows from its wrong side on the head of the deceased and he had, thus, brutally committed the murder and deserved no leniency---Conviction and sentence of accused were upheld and leave to appeal was not granted to him in circumstances.

A.H. Masood, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for the State.

2000SCMR746

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Sh. Ijaz Nisar and Mamoon Kazi, JJ

ALLAH WASAYA and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.432 of 1994, decided on 20th January, 2000.

(On appeal from the judgment, dated 2-5-1993, of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.229 of 1989/Murder Reference No.282 of 1989).

(a) Penal Code (XLV of 1860)---

----S.302/34---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether the offence committed by the accused fell under 5.302, P.P.C. or S.304, Part I, P.P.C.

(b) Penal Code (XLV of 1860)---

----Ss.302/34 & 304, Part I---Appraisal of evidence---Presence of eye­witnesses at the spot was quite natural and their testimony could not be shattered by the defence despite lengthy cross-examination---False involvement of accused could not be expected as eye-witnesses were related to both the parties---Ocular testimony was corroborated by medical evidence---Sequence of events, however, showed that the occurrence was the result of sudden flare up of tempers without any premeditation---Accused had not come armed at the spot and they had picked up the weapons of offence from there without sharing any common intention to kill the deceased---Such common intention did not even appear to have developed between them at the spur of the moment---Question of vicarious liability, therefore, did not arise---Conviction of accused under S.302/34, P.P.C. was altered to S.304, Part I, P.P.C. in circumstances and their sentences were reduced accordingly.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellants.

Ch. Arshad Ali, Advocate Supreme Court for the State.

Date of hearing: 20th January, 2000.

2000SCMR749

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J. and Qazi Muhammad Farooq, J

UNITED BANK LIMITED and others---Petitioners

versus

Mian MANZOOR AHMED and others --- Respondents

Civil Petitions Nos.673 and 674 of 1999, decided on 21st February, 2000.

(On appeal from interim orders, dated 25-1-1999 and 28-1-1999 of the Lahore High Court, Lahore in W.Ps. Nos.981 of 1999 and 1181 of 1999).

Constitution of Pakistan (1973)---

----Art.185(3)---Petition for leave to appeal against interim orders of the High Court---Maintainability---Supreme Court normally though would not interfere with the interim orders of the High Court, but in the interest of expeditious disposal of the matter, Court directed the Registrar of the concerned High Court, to fix the relevant Constitutional petition before the Judge of High Court seized of the matter forthwith so that the same was finally disposed of after hearing the -parties within fifteen days from the receipt of the order from - Supreme Court---Counsel for the petitioner was also asked by Supreme Court to move formal applications in that behalf to the Chief Justice of the High Court.

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st February, 2000.

2000SCMR751

[Supreme Court of Pakistan]~

Present: Nasir Aslam Zahid, Munawar Ahmed Mirza and

Abdur Rehman Khan, JJ

STATE----Petitioner

versus

TARIQ AZIZ, M.N. A. and 6 others---Respondents

Criminal Miscellaneous No.27 of 1998, decided on 14th May, 1999.

(In the matter of rowdyism/violence in and around the Supreme Court premises, Islamabad on 28-11-1997).

(a) Contempt of Court----

---- Suspicion without proof---Effect---Contempt proceedings being in the nature of criminal proceedings, suspicion without proof beyond reasonable doubt could not sustain a criminal charge.

(b) Contempt of Court----

---- Actions of raising banners and slogans against the judiciary by crowd/mob with intention to disturb the proceedings of the Court and forcing their (mob/crowd) way inside the premises, within the building and finally up to the floor next to the Court room---All such actions amounted to flagrant contempt of Court---Evidence on record did not specifically point out any of respondents to the extent that it could be said that the case against any of them had been established beyond reasonable doubt---Defendants, therefore, were entitled to acquittal under law---People not coming forward to give evidence nominating specific persons involved in rowdyism/violence that had taken place in and around the Supreme Court premises, and building, despite a large number of on-lookers, visitors and officials and also members of the Press being present, was deprecated---Supreme Court observed that it should be endeavour of every Government in power to strengthen the institute of judiciary and to jealously guard its independence and not to weaken the same---Government in power should ensure that incidents of rowdyism/violence or of like nature are never allowed to be repeated and the judiciary is as jealously guarded against such attacks as the Parliament.

(c) Constitution of Pakistan (1973)---

----Arts. 175 & 2A---Judiciary---Strong and independent judiciary is sine qua non for a sovereign Islamic State---Concept of sovereign Islamic State minus a strong judiciary is unimaginable---Judiciary is heart of freedom and independent judiciary represents the difference between civilization and savagery---If the Judiciary of a country is stripped of its powers, the country would cease to exist as a free nation.

(d) Contempt of Court---

---- Contempt proceedings---Procedure---Case of contempt of Court is not decided on tile principle of preponderance of evidence like civil disputes before Court---Conviction in criminal cases follows the findings of guilt against the accused based on evidence which establishes the prosecution case beyond reasonable doubt---Conviction cannot be based on suspicions or where there is any doubt.

(e) Judiciary-

---- Strong and independent judiciary is sine qua non for a sovereign Islamic State---Concept of sovereign Islamic State minus a strong judiciary is unimaginable---Judiciary is heart of freedom and independent judiciary represents the difference between civilization and savagery---If the judiciary of a country is stripped of its powers, the country would cease to exist as a free nation.

Tanvir Bashir Ansari, Deputy Attorney-General for the State.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Respondents Nos. l to 7.

Muhammad Nawa'z Kasuri, Advocate Supreme Court for Respondent No.4.

Date of hearing: 14th May, 1999.

2000 S C M R 770

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Munir A. Sheikh

and Nazim Hussain Siddiqui, JJ

In re: SUO MOTU CASE NO. 1 of 2000

Suo Motu Case No. l of 2000, decided on 30th March, 2000.

Constitution of Pakistan (1973)---

----Arts. 15, 16, 17; 19 & 184(3)---News item appearing in the national press, about Government imposing country-wide ban on all political meetings at public places, strikes and processions---Supreme Court, in exercise of suo motu power, issued notice to the Attorney-General for Pakistan to appear before Supreme Court to show cause as to the validity of banning political activities throughout Pakistan---Position of the Federal Government, Provincial Governments and other State functionaries on the issue of ban on political activities i.e. rallies, strikes etc., having been found to be divergent, the matter was admitted to a regular hearing by the Supreme Court to consider the questions as to whether ban on political activities had been validly imposed and if so, under what provision of law and whether the restrictions, so imposed, were ultra vires of the Fundamental Rights guaranteed under Arts. 15, 16, 17 & 19 of the Constitution of Pakistan (1973).

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

Tanvir Bashir Ansari, learned Deputy Attorney-General on behalf of the learned Attorney-General for Pakistan on Court's Notice.

Date of hearing: 30th March. 2000.

2000 S C M R 774

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Rashid Aziz Khan

and Iftikhar Muhammad Chaudhary, JJ

MUHAMMAD AZAM---Petitioner

versus

SAEE MUHAMMAD and others----Respondents

Civil Petition for Leave to Appeal No.770 of 1999, decided on 4th February, 2000.

(On appeal from the judgment, dated 2-3-1999 passed by Lahore High Court, Lahore. in Civil Revision No. 185 of 1997).

Qanun-e-Shahadat (10 of 1984)---

----Art.103---Civil Procedure Code (V of 1908); S.115---Constitution of Pakistan (1973), Art.185(3)---Execution of sale-deed---Allegation of fabrication and forgery of sale-deed and relevant receipt ---Revisional jurisdiction of High Court---Scope---Leave to appeal was granted to consider the question as to whether in such-like cases evidence furnished by witness orally could preferably be accepted comparing to documentary evidence in pursuance of Art.103, Qanun-e-Shahadat, 1984 and the revisional Court in exercise of jurisdiction under S.115, C.P.C. had jurisdiction to reverse the finding recorded by Appellate Court while considering oral and documentary evidence in its true perspective.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th February, 2000.

2000 S C M R 777

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Abdur Rehman Khan

and Sh. Riaz Ahmed, JJ

A.C./ADMINISTRATOR, MUNICIPAL COMMITTEE, LAKKI MARWT, N.-W.F.P ----- Appellant

versus

IZZAT KHAN and 12 others---Respondents

Civil Appeals Nos. 796 to 808 of 1997, decided on 27th January, 2000.

(On appeal from the judgment, dated 24-7-1996 of the N.-W.F.P Service Tribunal, passed in Appeals No.345, 346, 347, 348, 349, 350, 351 ,352, 353, 354, 355, 357 and 358 of 1995).

North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----Ss.2(b)(ii) & 11(ii)---"Civil servant"---Definition---Temporary/contract employee-- -Termination of service---Appeal before Service Tribunal--­Maintainability---Person employed on contract/temporary basis was specifically excluded from the definition of "civil servant" as given in S.2(b)(ii), N.-W.F.P. Civil Servants Act, 1973----Such a- contract/temporary service was liable to termination on the initial or extended periods of his employment and he could not approach Service Tribunal for the redress of his grievance and Service Tribunal was not competent to entertain his appeal.

Mir Adam Khan, Advocate Supreme Court and Mian M. Ismail Qureshi, Advocate-on-Record (absent) for Appellant.

Hussain Khan, Advocate-on-Record for Respondent No. l (in all the Civil Appeals).

Rashidul Haq Qazi, Additional Advocate-General, N.-W.F.P., Peshawar for Respondents Nos.2 and 3.

Date of hearing: 27th January, 2000.

2000SCMR780

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Wajihuddin Ahmed, JJ

MUHAMMAD ABID and 2 others---Petitioners

versus

NISAR AHMED ---Respondent

Civil Petition for Leave to Appeal No.989 of 1999, decided on17th November, 1999.

(On appeal from the judgment of the Lahore High. Court, Rawalpindi Bench, Rawalpindi, dated 25-3-1999 passed in Civil Revision No. 166 of 1993).

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

----O.XXXIX, Rr. 1 & 2---Plaintiff sought a declaratory decree regarding his entitlement to own and possess the suit property jointly with the defendants and a permanent injunction, restraining them from forcibly taking possession of the disputed property or disturbing the plaintiff's possession and/or raising construction on or otherwise altering the nature of property etc.---Validity--­When the plaintiff's case was that the joint property had not been partitioned, or that the defendants were improperly relying upon a non-existent private partition, adequate relief could be sought by way of asking for partition of the disputed property in metes and bounds---Plaintiff's suit was, therefore, mala fide because by seeking the relief that the plaintiff had sought, he was both approbating and reprobating at the same time, inasmuch as he retained his exclusive possession in a part of the land and was disposed to preclude the defendants from enjoying that, which the defendants had purchased and of which a specific reference stood made in the deed of sale under which the latter claimed---indefinite blocking of the use of Such property by way of a temporary injunction, was also a consideration which negatively reflected in suchmatters though never to undercut rights in the way of title, which vested in joint owners in each part and parcel of the common property.

Afsar Khan and others v. Mst. Khanum Jan and others 1983 SCMR 273; Shahjahan Khan v. Aurangzeb Khan PLD 1995 SC 462 and Zakiya Khatoon v. Roomi Enterprises 1995 SCMR 753 distinguished.

Paiker Maqsood v. Muhammad Amin 1991 MLD 106approved.

Muhammad Daud v. Muhammad Ayub 1985 SCMR 1966; Ali Gohar Khan v. Sher Ayaz 1989 SCMR 130; Paiker Maqsood v. Muhammad Amin 1991 MLD 106; Atta Muhammad v. Manzoor Ahmad 1992 MLD 550 and Akhtar Nawaz Khan v. Danial Khan 1995 PSC 207 ref.

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

----.O.XXXIX, Rr.l, 2 & 5.151---Interim injunction, grant of---Principles-----Where plaintiff neither had a prima facie case, nor would suffer irreparable loss nor balance of convenience lay in his favour, as covered by O.XXXIX, Rr. 1 & 2, C.P.C. nor the interests of justice, in contemplation of S.151, C.P.C. so warranted it was a more appropriate exercise of discretion to refuse rather than allow the interim relief.

(c) Sale--

---- Delivery of possession---Mere recital in the sale-deed, as regards delivery of possession, in itself was no effective proof of such delivery.

Muhammad Daud v. Muhammad Ayub 1985 SCMR 1966 ref.

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

----O.XXXIX, Rr. 1 & 2---Grant or refusal of interim injunction--­Discretion of Court---Discretion vesting in Court has to be exercised judiciously and equitably, ensuring all the times that the twain of -law and justice are adequately applied and administered.

Sardar Asmatullah Khan, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record (absent) for Petitioners.

Date of hearing: 17th November, 1999.

2000SCMR785

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J., Nasir Aslam Zahid

and Sh. Riaz Ahmed, JJ

HAQ NAWAZ and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos. 175 and 176 of 1999, heard on 16th December, 1999.

(On appeal from the judgment of Lahore High Court, Lahore dated 12-3-1999 passed in Cr.As. 275 of .1 91 and 313 of 1991 respectively).

(a) Penal Code (XLV of 1860)---

----Ss.302 & 120-B---Explosive Substances Act (XI of 1908), S.3--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to accused to examine the contention that the testimony of the interested eye-witnesses who were connected with a particular sect and had made inconsistent improvements during the trial, could not be relied upon without independent corroboration particularly when none from. the venue of incident was examined by the prosecution.

(b) Penal Code (XLV of 1860)---

---S.302/120-B---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was ,granted by Supreme Court to examine contentions that the accused having absconded from jail after filing the appeal could not be acquitted by the High Court which had given undue consideration to S.7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 which was not mandatory and its non-compliance could not have furnished a ground for a judgment on merit in respect of a fugitive from law and that the confessional statements of accused having been voluntarily recorded after following due procedure, could not be rejected.

(c) Criminal. Procedure Code (V of 1898)--­

----S. 190---Commencement of trial---Taking cognizance of offence by Court is not commencement of trial---Taking of cognizance of a case by a Court is not synonymous with the commencement of its trial which takes place on framing of the charge against the accused.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 41---Criminal Procedure Code (V of 1898). S.164---Penal Code (XLV of 1860), Ss.302 & 120-B---Appraisal of evidence---Judicial confession of the accused having been recorded before commencement of his trial, was valid---Prosecution had examined the complainant besides two other eye-witnesses mentioned in the F.I.R. and non-production of the injured witness or other eye-witnesses named in the F.I.R. was of no consequence as the prosecution was not bound to examine all the witnesses cited in the case---Accused having been apprehended within minutes of the incident and he having been clearly nominated in the promptly lodged F.I.R., being the person who had fired at the deceased, holding of his identification parade was not essential, particularly when the complainant had made a positive assertion both in the F.I.R. and before the Court that he had identified the accused as the perpetrator of the crime---Mere fact of the confession having been retracted by the accused at the trial could not lead to the conclusion that the same was involuntary which was corroborated not only by the ocular evidence but also by the recoveries of the crime weapons from the possession of accused and the empties from the spot which had matched with each other---Partial non-reliance by the High Court on the ocular testimony regarding the acquitted accused could not render the whole testimony unreliable---Convictions and sentences of accused were upheld in circumstances.

Haroon alias Harooni v. The State 1995 SCMR 1627; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Muhammad Pervaiz v. The State 1993 SCMR 2185; Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983; Fazal Mahmood Alias Pappu v. The State 1999 SCMR 2040; Khan Muhammad v. The State 1999 SCMR 1818; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Alam Din v. The State PLD 1973 Lah. 304; Muhammad Arif v. The State 1970 SCMR 178; Falak Sher v. The State PLD 1967 SC 425; Muhammad Shafi v. The State PLD.1968 Lah. 869; Brig (Retd.) F.B. Ali v. The State PLD 1975 SC 506; Hayat Bakhsh v. The State PLD 1981 SC 265; Chan Shah v. The Crown PLD 1956 FC 43; Rahim Bux v. Abdul Subhan 1995 SCMR 99; Muhammad Gul v. The State 1991 SCMR 942 and Muhammad Akrarn v. The State 1995 SCMR 1359 ref.

(e) Penal Code (XLV of 1860)--

----Ss.302 & 120-B---Appreciation of evidence---Number of witnesses to, be examined by the prosecution---Quality of the evidence and not the quantity of the evidence which has a bearing on the fate of the case.

(f) Penal Code (XLV of 1860)---

----Ss.302 & 120-B---Criminal Procedure Code (V of 1898), S.164---Qanun­e-Shahadat (10 of 1984), Art. 41---Appreciation of evidence---Retracted confession---Conviction of an accused can be based on a retracted confession if found by the Court to have been voluntarily made---However, Court, as a rule of caution and prudence, however, looks for other evidence and material on record of the case to seek corroboration of the retracted confession before convicting the accused.

Muhammad Gul v. The State 1991 SCMR 942 ref.

(g) Penal Code (XLV of 1860)---

----Ss.302 & 120-B---Criminal Procedure Code (V of 1898), S.164--­Appreciation of evidence---Retracted confession---Corroborative value--­Retracted confession can be used as a corroborative piece of evidence for proving prosecution theory.

Muhammad Akram v. The State 1995 SCMR 1359 ref.

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

----S.164---Confession---Evidentiary value---Principles enumerated.

From the above-cited case, inter alia, the following principles of law are deducible:

(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.

(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.

(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.

(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.

(v) That the confession of a co-accused is an evidence /of a weak character.

(vi) That under Islamic Jurisprudence, in order to make a confession' reliable, it should be voluntarily made and not on account of any coercion, duress or violence.

(vii) That any delay in recording ;of a confession may, or may not, be fatal as to the evidentiary value of a. retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (supra)`, this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reasons that the Court was satisfied that the retracted confessions were not tutored and were, in fact., made voluntarily.

(viii) That any lapse on the administrative side, on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the' lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(ix) That if an accomplice's evidence is not corroborated in material respect, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.

Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983 ref.

(i) Penal Code (XLV of 1860)----

----Ss. 302 & 120-B---Criminal Procedure Code (V of 1898), S.164--­Appreciation of evidence---Retracted confession---Evidentiary value---Court in order to judge the evidentiary value of a retracted confession has to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth---If the Court is satisfied on such aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same.

(j) Penal Code (XLV of 1860)---

----S.302/120-B---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal---Accused being not an absconder and fugitive from law at the time he lodged his appeal and his subsequent act of absconding from jail being an independent act punishable under the law separately, High Court had rightly dealt with his case on merits---Prosecution case against the accused mainly rested on their confessional statements and the identification parade held in the case---No cogent evidence was available on record to establish even the allegation of conspiracy against the accused---Acquittal of accused by High Court did not suffer from any perversity or illegality to call for any interference with the impugned judgment---Appeal against acquittal of accused was dismissed accordingly.

Muhammad Bakhsh v. The State PLD 1956 SC (Pak.) 420; Karam Elahi v. Emperor AIR 1947 Lah. 92 and Mst. Ameer Khatun v.,Faiz Ahmed and others PLD 1991 SC 787 ref.

(k) Criminal trial---

----Commencement of trial---Taking cognizance of offence by Court is not commencement of trial---Taking of cognizance of a case by a Court is not synonymous with the commencement of its trial which takes place on framing of the charge against the accused.

(1) Criminal trial---

---- Appreciation of evidence---Number of witnesses to be examined by the prosecution---Quality of the evidence and not the quantity of the evidence which has a bearing on the fate of the case.

M. Asghar Rokri, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant.

Miss Yasmin Saigal, Asst. A.G. Punjab, Rao M. Yousaf, Advocate-on-Record (absent) for the State.

Rashid Murtaza Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents Nos.2 to 5.

Date of hearing: 16th December, 1999.

2000SCMR814

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Wajihuddin Ahmed and Kamal Mansur Alam, JJ

IRSHAD AHMAD SHAIKH ---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.54-K of 1999, decided on 6th August, 1999. (On appeal from the order, dated 30-7-1999 of the Sindh High Court passed in Cr. Misc. A. No.371 of 1998).

(a) Protection of Economic Reforms Act (XII of 1992)---

----Ss. 5 & 9--Foreign Exchange (Temporary. Restrictions) Act (IV of 19.98), Preamble---Protections and immunities conferred by Protection of Economic Reforms Act, 1992---Effect of Foreign Exchange (Temporary Restrictions) Act, 1998 on such protections and immunities---Foreign Exchange (Temporary Restrictions) Act, 1998 had been promulgated and by way of a temporary measure, dealings in foreign exchange held by a person in Pakistan, without permission of the State Bank of Pakistan, stood suspended as from 28-5-1998 and while no legal restriction was imposed for converting such foreign exchange into Pakistani rupees .at the officially notified rate, corresponding protections and immunities conferred by Protection of Economic Reforms Act, 1992 ,still held the field and promulgation of Foreign Exchange (Temporary Restrictions) Act, 1998 had not, except to the extent of suspension, adversely affected any such protection or immunity ---Shaukat Ali Mian and others v. The Federation of Pakistan 1999 CLC 607 reversed].

Gatron (Industries) Limited v. Government of Pakistan and another 1999 SCMR 1072; Zahoor Ahmad and others v. The Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1999 Lah. 139 and Muhammad Ihsan v. Government of Pakistan and others 1999 MLD 1145 distinguished.

Shaukat Ali Mian and others v. The Federation of Pakistan 1999 CLC 607 reversed.

(b) Precedent---

----Every case is an authority, to the extent the same decides the legal controversy passed in it---Declaration of law has to be confined to the four corners of the dispute agitated before the Court---Rest, if any, is obiter and obiter except of Supreme Court, or before it, of the Privy Council, is not/has not been binding.

(c) Interpretation of statutes---

---- Ascertaining object of legislation---Principles---Objective which the legislation set out to achieve, inter alia, would emerge upon a close scrutiny of the entire enactment and, if and when any ambiguity or uncertainty comes to be encountered, by making reference to the Preamble, whereafter, even then a satisfactory answer eludes the pursuit, going as far as the previous legislative measures on the subject, when available, as also the subsequent legislative developments, if any.

(d) Protection of Economic Reforms Act (XII of 1992)---

----Ss. 4, 5, 6, 7, 8 & 9---Criminal Procedure Code (V of 1898), S. 94--­Objective which the Protection of Economic Reforms Act, 1992 set out to achieve detailed---Summons to produce documents etc.---Complete secrecy in respect of transactions in the foreign currency accounts had like connotations and it was for that reason that S.94, Cr.P.C. required an order of the Court even for criminal inquiries and investigations in contemplation of said section---Right to claim secrecy of accounts clearly gave way where culpability intervened---Provisions of S.5(3) or S.9, Protection of Economic Reforms Act, 1992 would not spell out secrecy where a penal act or commission was involved though even in such regard the initiative, aid and assistance of the relevant Court, as in S.94, Cr.P.C. had a direct bearing---Secrecy would be complete and even total except for the limited purpose permitted by such a Court---Protection of Economic Reforms Act, 1992, did not provide a blanket protection vis-a-vis criminal acts and liabilities and that, to the extent permissible by S.94, Cr.P.C.

An examination of the Protection of the Economic Reforms Act, 1992, clearly shows that the enactment was the culmination point of the economic policies, programmes, laws and regulations announced, promulgated or implemented by the Government on and after November 7, 1990 relating, inter alia, to promotion of savings and investments. introduction of fiscal incentives for industrialization and deregulation o€ investment, banking, finance, exchange and payments systems, holding and transfer of currencies and privatization of public sector enterprises alongwith nationalised banks. It was in that context that section 3 of the statute was mandated to have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947. the Customs Act, 1969, the Income Tax Ordinance, 1979 or any other law for the time being in force. The phrase last quoted, therefore, is not one where the implications of the rules of ejusdem generis may be totally uninvocable. One, therefore, may be tempted to say here that the expression "any other law for the time being in force" could have meant largely to refer to fiscal and monetary promulgations having a direct nexus with economic activities. Two things seem to have been clearly excluded, one, the Constitutional Law, being unamenable to supersession by a sub-Constitutional measure and second, as a corollary and even otherwise, laws inter-acting with criminal or penal acts of commission or omission. Section 4 of the Act, which follows upon. section 3, opens itself to a similar interpretation and an entitlement of all persons freely "to bring, hold, sell, transfer and take out foreign exchange within, or out of Pakistan in any form", no liability attaching for making a foreign currency declaration nor such persons being liable to "be questioned in regard to the same", do not occasion a free licence to transgress the bounds of penal law nor to bypass or circumvent criminal processes, such as investigations or inquiries, to assess culpability nor the consequential trials to determine punishments or penalties. In others words, the declarations being exempted and the question being foregone, pertain specifically to the absolute rights and total freedom to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form, no restrictions or preclusion under the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969 or the Income Tax Ordinance, 1979, being attracted nor any taxes or duties being payable nor any confiscation 'or other such recourse being available. Even so, if such money or part thereof was utilized or acquired the status of being the subject-chatter of an offence then, while the foreign exchange would still remain beyond the realm of being taken over, an inquiry to bring home the guilt of an accused person e.g. of theft or embezzlement could surely be undertaken and pushed to its logical conclusion. The questions asked, therefore, pursuant to section 4 of the enactment, would in no way result in deprivation of the foreign exchange in focus, as inclusive of the rights to own or possess the same, yet the use thereof for or in relation to a criminal or penal act could always be probed. The position becomes clearer when section 5 is analysed and it is seen that the immunities, specific to the foreign currency accounts, operate in the express context of holders of those accounts and that such have a bearing only against inquiries from the Income Tax Department or any other taxation authority as to the source of financing of the foreign currency accounts. Much the same is stipulated in the section to hold good regarding wealth tax, income-tax and the compulsory deduction of Zakat at source. Complete secrecy in respect of transactions in the foreign currency accounts has like connotations and it is for this reason that section 94 of the Criminal Procedure Code requires an order of the Court even for criminal injuries and investigations in contemplation of that section: Sections 6, 7 and 8, dealing with protections of fiscal incentives, for transfer of ownership to private sector and for foreign and Pakistani investments are not relevant. Section 9 of the Act, ordaining secrecy of banking transaction hag some relevance because secrecy therein, having been limited to bona fide, banking transactions, makes the section a little bit different than section 5(3), which is all pervasive and contemplates maintenance of "complete secrecy". in respect of banking transactions in foreign, currency. The distinction is obvious. Section 5(3), specific to foreign currency accounts carries secrecy irrespective of bona fide or otherwise whereas banking transactions generally, a broader concept, would entail secrecy only if bona fide. Here, however, it may be noted that the complete secrecy even in section 5(3) is not in respect of all "transactions in the foreign currency accounts"; imply that there can be some possible exceptions to the generalised protection and cover. Neither section 5(3) nor section 9, therefore, would spell out secrecy where a penal act or omission is involved though even .in such regard the initiative, aid and assistance of the relevant Court, as in section 94 of the Criminal Procedure Code, has a direct bearing. In other words the secrecy would be complete and even total except for the limited purpose permitted by such a Court as aforementioned.

The right to claim secrecy of accounts clearly gives way where culpability intervenes.

Nothing that is contained in Protection of Economic Reforms Act, 1992 provides a blanket protection vis-a-vis criminal acts and liabilities and that, to the extent permissible by section 94 of the Criminal Procedure Code, 1898.

(e) Obiterdicta---

----Every case is an authority, to the extent the same decides the legal controversy passed in it---Declaration of law has to be confined to the four corners of the dispute agitated before the Court---Rest, if any, is obiter and obiter except of Supreme Court, or before it, of the Privy Council, is not/has not been binding.

Suleman Khan, Advocate Supreme Court for Petitioner.

Mubarak Hussain Siddiqui, D.A. -G. for the State.

Date of hearing: 6th August, 1999.

2000SCMR826

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddqui, C.J., Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansoor Alam, JJ

ZAHIR ULLAH and 13 others----Appellants

versus

CHAIRMAN, WAPDA, LAHORE and others---Respondents

Civil Appeals Nos. 777 to 790 and. 801 to 811 of 1999, decided on 20th December, 1999.

(On appeal from the judgments of Federal Service Tribunal, dated 16-6-1997, 1-1-1998 and 22-10-1997 passed in Appeals Nos.289(R) of 1997 to 302(R) of 1992, 2464(x) of 1997 to 2474(x) of 1997, 340-K and 341-K of 1997 respectively).

Service Tribunals Act (LXX of 1973)---

-----S.2-A---Civil Servants Act (LXXI of 1973), S.2(b)---Employees, though not falling in the definition as given in S.2(b), Civil Servants Act, 1973, were covered by the provisions of S.2-A, Service Tribunals Act, 1973--­Principles---Scope and application of S.2-A, Service Tribunals Act, 1973--- Fact that persons were employed in the organization/corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on- account of incorporation of S.2-A in the Service Tribunals Act, 1973.

Section 2-A which was inserted in the Service Tribunals Act, 1973, by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the Service Tribunal. Section 2-A while providing that the service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such corporation or organization shall be. deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. Employees though not falling in the definition given in section 2(b) of Civil Servants Act, 1973, were covered by the provisions of section 2-A for the purposes of availing remedy before the Service Tribunal.. The fact that persons were employed in the organization/corporation on contract basis, could not disentitle them to the remedy of appeal which became available. to them on account of incorporation of section 2-A in the Service Tribunals Act, 1973.

S. Zafar Ahmed Naqvi, Advocate Supreme Court for Appellant (in C.As. Nos. 777 to 790 of 1998).

A.H. Mir, Advocate Supreme :Court for Respondent (in C.As, . Nos.777 to 790 of 1998).

Abdul Mujeeb Pirzada, Advocate Supreme Court, for Appellants (in C.As. Nos.801 to 811 of 1998).

Ch. Muhammad Jamil, Advocate Supreme Court for Respondents (in C. As. Nos. 801 and 811 of 1998).

Date of hearing: 20th December, 1999.

2000SCMR828

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

GHULAM RASOOL---Petitioner

versus

MUHAMMAD SHARIF --- Respondent

Civil Petition for Leave to Appeal No.323-L of 2000, decided on 22nd February, 2000.

(On appeal from the judgment, dated 6-12-1999 passed by Lahore High Court, Lahore in R.S.A. No. 15 of 1995).

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Art.33---Arbitration Act (X of 1940), S.14---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration and possession was dismissed---Parties during pendency of appeal before Additional District and Sessions Judge made statement to the effect that matter be referred to District Judge for decision as a Referee---District Judge gave his decision and also appeared in the Court and got recorded his statement on oath---Parties accepted the same and appeal was disposed of in terms of decision of Referee---Defendant being not satisfied with decision of District Judge filed appeal before High Court which was dismissed--- Validity---Leave to appeal was granted to examine the contention, as to whether statement made by the Referee would be considered as an information made under Art.33, Qanun-e-Shahadat, 1984 or in view of his statement which he got recorded in the Court same would be treated as an arbitration award in view of Supreme Court decision in Ghulam Farid Khan v. Muhammad Hanif Khan 1990 -SCMR 763.

Ghulam Farid Khan v. Muhammad Hanif Khan 1990 SCMR 763 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Abdul Aasim Jafri, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd February, 2000.

2000SCMR830.

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

MUHAMMAD YAQUB---Appellant

versus

PAKISTAN PETROLEUM LTD. and another---Respondents

Civil Appeal No.998 of 1999, decided on 201h December, 1999.

(On appeal from the judgment of Federal Service Tribunal, dated 16-3-1998 in Appeal No. 1678-K of 1998).

Service Tribunals Act (LXX of 1973)---

----S.2-A [as inserted by Service Tribunals (Amendment) Act (XVII. of 1997)]---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Employee of organization controlled by Government filed grievance petition before Labour 'Court which remained pending until 1997----.While the said petition wits pending adjudication before Labour Court S.2-A was inserted in the Service Tribunals Act, 1973---Said employee moved application before Labour Court for withdrawal of his grievance petition with reservation of his right to file appeal before Service Tribunal in view of S.2-A, Service Tribunals Act, 1973---Labour Court, declared the grievance petition of the employee as abated on 1-1-1998---Employee filed appeal before Labour Appellate Tribunal against the said order of the Labour Court which was dismissed on 28-9-1998---Employee, thereafter, filed appeal before Service Tribunal on 17-10-1998 which was dismissed- as time-barred holding that either the appellant should have approached within 90 days of 10-6-199fi when S.2-A was added in the Service Tribunals Act, 1973 or within a maximum period of 90 days of the judgment of Supreme Court passed in the, case of Muhammad Afzal v. Karachi Electric Supply- Corporation 1999 SCMR 92 which was dated 31-3-1998---Validity---Held. observations by the Service Tribunal were no doubt weighty and normally in view of such observations, there would have been no case for condonation of delay--­Judgment of Supreme Court in Muhammad Afzal v.-Karachi Electric Supply Corporation having been published in January 1999 issue of the SCMR as such Service Tribunal should have taken lenient view on account of prevailing confusion with regard to availability of the remedy to an aggrieved person, who was employed in an organization or corporation, controlled by the Government---Supreme Court, in circumstances; set aside the order of Service Tribunal and remanded the case with the observations that the Service Tribunal would re-consider the application for condonation of delay in the light of observations of Supreme Court.

Faizanul Haq, Advocate-on-Record for Appellant.

Siddique Mirza, Advocate-on-Record for Respondent.

Date of hearing: 20th December, 1999.

2000SCMR832

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Mamoon Kazi, Wajihuddin Ahmad and Kamal Mansur Alain, JJ

Malik MUMTAZ AHMED and others---Appellants

versus

FEDERAL SERVICE TRIBUNAL and others---Respondents

Civil Appeals Nos.453, 701, 1156, 286 to 292, 317, 318, 326, 327, 343. 459, 441, 442, 443, 445, 446, 447, 457, 458, 566 to 576, 435 to 440, 444, 448 to 451, 460 to 462 and 469 of 1998, decided on 20th December, 1999.

(On appeal from the judgment of Federal Service Tribunal, dated 18-12-1997 in Appeal No.942-L of 1997, dated 5-12-1997 in Appeal No.760-R of 1997, dated 26-7-1997 in Appeal No.285-L of 1998, dated 8-10-1998 passed in Appeal No.301-K of 1998, 551-K of 1998, 552-K of 1998, 553-K of 1998, 577-K of 1998., 772-K of 1998, 781-K of 1998, dated 19-11-1997 in Appeal No.612-L of 1997, dated 28-11-1997 in Appeal No.697-L of 1998, dated 25-11-1997 in Appeal No.730-L of 1997, dated 27-11-1997 in Appeal No.676-L of 1997, dated 25-11-1997 in Appeal No.689-L of 1997, dated 31-10-1997 in Appeal No.539-K of 1997, dated 23-10-1997 in Appeal No.435-K of 1997, dated 29-10-1997 in Appeals Nos.523-K of 1997, 357-K of 1997, 360-K of 1997, 359-K of 1997, dated 24-10-1997 in Appeal No-349-K of 1997, dated 25-10-1997 in Appeal No-278-K of 1997, dated 24-10-1997 in Appeal No.477-K of 1997, 482-K of 1997, 489-K of 1997, 476-K of 1997, 475-K of 1997, 479-K of 1997, 483-K of 1997, 493-K of 1997, 486-K of 1997, 480-K of 1997, 488-K of 1997, dated 22-10-1997 in Appeals Nos.399-K of 1997, 405-K of 1997, 403-K of 1997, 400-K of 1997, 317-K of 1997, 401-K of 1997, 287-K of 1997, 21-8-1997 in Appeal No.542, 543, 545, 544-R of 1997, dated 30­10-1997 in Appeal No.540-K of 1997 22-10-1997 in Appeals Nos.418, 417 and 384-K of 1997 respectively).

Service Tribunals Act (LXX of 1973)--- .

---S.2-A---Amendment brought about in Service Tribunals Act, 1973 by insertion of S.2-A was procedural in nature and, therefore, it was retrospective in operation and applied to the pending cases as well as to the cause of action which arose prior to the insertion of S.2-A, in the Act.

Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Ghulam Mustafa Khairati v. Federation of Pakistan 1998 SCMR 1603 and Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 ref.

Nemo for Appellant (in C.A. 453 of 1998).

Nemo for Respondent (in C.A. No.453 of 1998).

Nemo for Appellant (in C.A. No.701 of 1998).

Nemo for Respondents, (in C. A. No. 701 of 1998).

Appellant in person (in C. A. No. 1156 of 1998).

M.A.I. Qarni, Advocate-on-Record for Respondents (in C.A. No. 1156 of 1998).

Ahmedullah Farooqi, Advocate-on-Record for Appellants (in C.A. No.286 of 1999).

Anwar Kamal, Advocate Supreme Court and M.A.I. Qarni, Advocate-on-Record for Respondents (in C.A. No.286 of 1999).

Ahmedullah Farooqi, Advocate-on-Record for Appellant (in C.A. No.287 of 1999).

Anwar Kamal, Advocate Supreme Court for Respondents (in C.A. No.287 of 1999).

Ahmedullah Farooqi, Advocate-on-Record for Appellants (in C.As. Nos.288, 289, 290, 291 and 292 of 1999).

Anwar Kamal, Advocate Supreme Court for Respondents (in C.As. Nos.288, 289, 290, 291 and 292 of 1999).

Appellant (absent) (in C.A. No.317 of 1999).

C.M. Latif, Advocate-on-Record for Respondents (in C.A. No.317 of 1999).

Mian Muhammad Saleem, Advocate Supreme Court for Appellant (in C.A. No.318 of 1999).

Appellant in person (in C.A. No.459 of 1999).

Anwar Kamal, Advocate Supreme Court for Respondents (in C.A. No.459 of 1999).

Abul Khair, Advocate Supreme Court for Appellants (in C.As. Nos.441, 442, 443, 445 and 446 of 1999).

M.S. Ghoury, Advocate-on-Record for Respondents (in. C.As. Nos.441, 442, 443, 445 and 446 of 1999).

Appellant in person (in C.As. Nos.457 and 458 of 1998).

M.S. Ghoury for Respondents (in C.As. Nos.457 and 458 of 1998).

Abdul Mujib Pirzada, Senior Advocate Supreme Court for Appellants (in C.As. Nos.566, 567, 568, 569, 570, 571, 572, 573, 574, 575 and 576 of 1998).

Anwar Kamal, Advocate Supreme Court for Respondents (in C.As, Nos.566, 567, 568, 569, 570, 571, 572, 573, 574, 575 and 576 of 1998).

Appellant in, person (in C.A. No.435 of 1998).

A.R. Akhtar for Respondent in (.in C.A. No.435 of 1998).

Appellant in person (in C.As. Nos.436, 437, 438, 440, 444, 448, 449, 450 and 451 of 1998).

Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.As. Nos.436, 437, 438, 440, 444, 448, 449, 450 and 451 of 1998).

Appellant in person (C.As.Nos.439, 460, 461 and 462 of 1998).

Masood Mukhtar Naqvi for Respondent (C.As. Nos.439, 460, 461 and 462 of 1998).

A.A. Siddiqui, Advocate Supreme Court for Appellant (in C.A.No.469 of 1998).

Nemo for Respondents (C.A.No.469 of 1998).

Date of hearing: 20th December, 1999.

2000SCMR835

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and

Rana Bhagwan Das, JJ

ABDUL RAUF KAKAR, JOINT SECRETARY, BALOCHISTAN---Petitioner

versus

THE SPEAKER, BALOCHISTAN PROVINCIAL ASSEMBLY

QUETTA and 2 others---Respondents

Civil Petitions for Leave to Appeals Nos. l and 2-Q of 1999, decided on 25th Febcury,2000, (On appeal from the judgment, dated passed by Balochistan Service Tribunal, in Service Appeals Nos.56 of 1997 and 11 of 1998).

Balochistan Civil Servants Act (IX of 1974)---

----S.9---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, R.10---Promotion---Civil servant holding charge of a higher post in officiating capacity had no vested right to claim his promotion from the date when he was allowed to discharge his duty in such officiating capacity.

Muhammad Siddique Ahmed Khan and others v. Pakistan Railways through Financial Advisor and Chief Accounts Officer, Pakistan Railways, Lahore and others 1997 SCMR 1514 distinguished.

Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 25th February, 2000.

2000SCMR838

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and

Sh. Riaz Ahmed, JJ

Mst. FIRDOUS IQBAL---Petitioner

versus

SHIFAAT ALI and others----Respondents

Civil Petition No. 1095 of 1999, decided on 28th February, 2000.

(On appeal from the judgment, dated 2-3-1999 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Writ Petition No. 11 of 1999).

Guardians and Wards Act (VIII of 1890)---

---S. 25---Custody of minor son---Right of father to claim the custody of minor son, was not an absolute right---Welfare of minor always a paramount consideration---Father may disentitle himself to custody, on account of his conduct in the light of the facts and circumstances of each case---Principles.

The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the present case, the evidence on the record showed that father who sought custody of the minor, neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the mother. She had brought him up and educated him till she had to opt for her second marriage. Even then she had not been negligent in the care of her minor son. She had entrusted that duty to her mother, and father and minor is being properly educated till date in a local school. All along this entire period, the father never bothered even to go to meet the minor muchless than providing maintenance to him, when the mother sued him for providing maintenance allowance to the minor. It was only then that he had made an application for custody of the minor. Again the father had also taken another wife who has got one or two children out of the wedlock. The second wife of the father was living in the village of the father whereas he himself in an Army Personnel in service of Pakistan Army and remains under posting from one cantonment to another. Consequently, he would also not be present in the house where he proposed to lodge his son. The minor would be exposed to the on slaughts of the step-motherly treatment of his second wife. There would be no one to stop the step-mother from the well-known step-motherly treatment. It was in these circumstances that the Court had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of the real mother through her parents rather than giving him to the father who was himself away from his household which had been left to the charge of the step-mother.

High Court, therefore, erred to interfere in the concurrent findings of fact that the welfare of the minor lay in leaving him to the custody of the mother through her own parents and that too in the exercise of the Constitutional jurisdiction of the High Court.

Supreme Court converted petition into appeal, accepted the appeal and while setting aside the order of the High Court, restored those of the two Courts that the welfare of the minor lay with the mother and that she was entitled to retain his custody.

Principles of Muhammadan Law by Mulla, para.354; Hedaya (Garady's Edn.); Digest of Muhammadan Law by Baillies; Fatwa-i-­Alamgiri (Bangali Edn.) and Commentaries on Muhammadan Law by Syed Ameer Ali and Muhammadan Law by Tayabji. ref.

Syed Misbah-ul-Hassan Abdi, Advocate Supreme Court for Petitioner.

Abdur Rehman Lodhi, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Respondent No. 1.

Date of hearing: 28th February, 2000.

2000 S C M R 845

Present: Sh. Ijaz Nisar, Abdur Rehman Khan

and Munir A. Sheikh, JJ

HAYATULLAH---Petitioner

versus

ABDUL RASHEED---Respondent

Civil Petition No.80-K of 2000, decided 23rd February, 2000.

(On appeal from the judgment, dated 12-1-2000 of the High Court of Sindh, Karachi in F.R.A. No.604 of 1999).

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

----S. 15---Denial of relationship of landlord and tenant---Effect---Not an inflexible rule that whenever relationship of landlord and tenant was denied the Rent Controller was invariably bound to refer the applicant to approach the Civil Court for establishment of his ownership---Every case was to be decided on its own peculiar facts---Principles.

It is not an inflexible rule that whenever relationship of landlord and tenant is denied the Rent Controller is invariably bound to refer the applicant to approach the Civil Court for establishment of his ownership. Every case is to be decided on its own peculiar facts. If it is found that the denial by the tenant of the relationship of tenant and landlord is frivolous and baseless as he has not been able to urge or bring anything substantial in support of his plea and that the stand of the landlord is supported by solid and cogent evidence on record, then the Rent Controller would be failing in his jurisdiction not to decide the controversy himself and instead directing the parties to resolve the dispute in the Civil Court.

Syed Amjad Husssain, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd February 2000.

2000 S C M R 847

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary , and Rana Bhagwan Das, JJ, Mst. SABIRAN BI---Petitioner

versus

AHMAD KHAN and another---Respondents

Civil Petition for Leave to Appeal No. 1758 of 1999, decided on 29th February, 2000.

(On appeal from the judgment; dated 14-10-1999 passed by Lahore High Court, Rawalpindi Bench, in Civil Revision No.83-D of 1997).

(a) North-West Frontier Province Pre-emption Act (XIV of 1950)---

----S.18---Civil Procedure Code (V of 1908), .O.IV, ,R.1---"Sues"--­Connotation---Word "sues" means institutes---Suit, according to O. IV, R. 1, C.P.C, is instituted by the presentement of the plaint, to a Court of competent jurisdiction- -Suit is, .thus, instituted as soon as the plaint is presented and is accepted by the Presiding Officer any defect notwithstanding.

Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others PLD 1976 SC 572 fol.

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

----S.115---Revision petition which suffered from defect i.e. non-filing of pleadings, could not be dismissed being barred by time, in such a situation, at the best the petition could be treated as being not maintainable.

(c) Administration of justice---

---- Decisions of cases have to be on merits instead of disposal of matters on hypertechnical grounds.

Muhammad Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

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

----Ss. 9, 96, 115 & O. VII, R.11---Defect in pleadings---Office objection--­Non-removal of such objection by the party concerned---Effect---Duty of concerned party and its Advocate---Once a suit, appeal or revision had been presented before the authorised officer of the Court within the prescribed period of limitation, same could not be treated barred by time for the reason that office of the Court had noted defects in the pleadings which had not been removed by the concerned party or his Advocate---Presiding Officer, in such-like situation, at the best could consider the maintainability of proceedings in view of the provisions of O.VII, R.11, C.P.C. or identical provisions of C.P.C. or the law under which the proceedings were instituted---Parties/Advocates were not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorised officer subject to the condition that specific notice had beer served upon the party or Advocate to do the needful---If, after notice, the defect is not removed the case shall be listed for non-prosecution before the Presiding Officer who may, in his discretion, allow time to comply with objections of the officer.

AIR 1934 Pesh. 9; 1991 CLC 296; 1992 CLC 296; PLD 1996 Lah. 158; PLD 1996 SC 704 and 1997 SCMR 1224 distinguished.

(e) Words and phrases---

----"Sues"---Connotation.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Gul Zarin Kiani, Advocate Supreme Court for Respondents.

Date of hearing: 29th February, 2000.

2000 S C M R 854

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

RASHID KHAN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.332 and 333 of 1996, decided on 25th February, 2000.

(On appeal from the judgment, dated 7-7-1996 of the High Court of Sindh, Karachi, passed in Criminal Appeals Nos. 101 and 158 of 1994).

(a) Prevention of Corruption Act (II of 1947)---

----S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to examine contentions that the prosecution 'evidence having been disbelieved qua the acquitted co-accused and even qua the accused in respect of the offences punishable under Ss.381 & 411, P.P.C., the same could not be relied upon for conviction under S.5(2) of the Prevention of Corruption Act, 1947; that even if recovery of the cash in question from the residence of accused was accepted, prosecution had to establish that the accused had not been able to reasonably account for the same; and that the cash in question recovered from the house of accused belonged to his brother who had filed a suit for recovery of the same.

(b) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Criminal Procedure Code (V of 1898), S. 516-A---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to examine the contentions, of the petitioner that the money recovered from the house of his brother (accused) belonged to him and evidence to that effect was adduced in the Trial Court by his said brother, and that he had filed a civil suit in the High Court claiming the said amount and in case of his suit being decreed, such decree would be in conflict with the order of forfeiture of the said amount ordered by the Trial Court and not interfered with by the Appellate Court.

(c) Prevention of Corruption Act (II of'1947)---

----S.5(2)---Appraisal of evidence---Complainant's testimony inspired confidence who was not. inimical towards the accused or swayed by any sinister design to implicate him falsely in the case---Contention that the testimony of the complainant having been disbelieved qua the acquitted accused could not be believed in regard to the accused, was misconceived as the acquittal of the said accused was not based on the testimony of the complainant, but on the ground that he had no concern whatsoever with the cash recovered from the house of accused---Even otherwise the maxim "falsus in uno falsus in omnibus" did not hold the field anymore which had been replaced by a more, rational methodology of evaluation of evidence called "sifting grain from the chaff "---Testimony against the accused was amply corroborated by his own admission about recovery of cash from his house which had not only made the recovery undisputed but was also sufficient by itself to sustain conviction for want of a plausible explanation---Material on record did not establish that the cash belonged to the brother of accused---Accused being a public servant drawing a meagre salary had failed to offer a satisfactory explanation for the recovery of a heavy amount of money from his house and he was indubitably guilty of the offence of criminal mi ;conduct within the import of cl. (c) of subsection (1) of S. 5 of the .Prevention of Corruption Act, 1947---Appeal of accused was dismissed accordingly.

Tawaib Khan v. State PLD 1970 SC 13 and Samano v State 1973 SCMR 162 ref.

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

----S.516-A---Prayer of the appellant that the cash recovered from the house of his brother (accused) who was being tried under S.5(2) of the Prevention of Corruption Act, 1947, be returned to him as the same belonged to him, had been rejected by the Trial Court as well as by High Court, whereafter he filed a civil suit in this regard which was pending---Evidence and other material available on record was not enough for holding that the cash in question belonged to the appellant (brother of accused)---Civil suit filed by the appellant could not thwart the disposal of the appeals which were to be decided on their own merits---Appeal was dismissed in circumstances.

Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Nemo for the State.

Date of hearing: 25th February, 2000.

2000SCMR859

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

AMIR HAIDER ---Petitioner

versus

SHAB13IR AHMAD through Legal Heirs and others---Respondents

Civil Petition for Leave to Appeal No.1934-L of 1998, decided on 17th December, 1999.

(On appeal from the judgment and order of the Lahore High Court Lahore, dated 27-7-1999 passed in C.R. No. 2047 of 1986).

Civil Procedure Code (V of 1908)---

----S.115---Revision---Scope---Dispute as to ownership of property----­Judgments of Trial Court and 1st Appellate Court were at variance with each other i.e. suit was dismissed by the former but decreed in appeal by the latter---First Appellate Court had not read the file of the Trial Court and failed to notice important points relating to property in dispute as that property was situated within the municipal limits, that plan for reconstruction was sanctioned as far back as 1957 in favour of defendant in suit, that construction was raised in accordance with sanctioned plan, that property was entered in records of the concerned rating; that property bore municipal number as residential house located in rating area and the house as numbered was recorded as owned by the defendant, which was sufficient to prove that crude attempt had been made by plaintiff in the suit to grab the property of deceased defendant---High Court, in circumstances, had jurisdiction under S.115, C.P.C. to reverse the decision of the 1st Appellate Court after reaching the conclusion that same was the result of misreading of material evidence and also suffered from non-reading of material evidence on record.

Malik Abdus Sattar Chughtai, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 17th December,1999.

2000SCMR866

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary

and Rana Bhagwan Das, JJ

GUL USMAN and 2 others---Appellants

versus

Mst. AHMERO and 11th others---Respondents -

Civil Appeal No. 1165 of 1995, decided on 17th February, 2000.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 21-3-1995 passed in Civil Revision No.216 of 1994).

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.13---Civil Procedure Code (V of 1908), S.47---Constitution of Pakistan (1973), Art. 185(3)---Dismissal of pre-emption suit on ground of shortage of deposit of merely thirty paisas in pre-emption money---Leave to appeal was granted by Supreme Court to consider questions as to whether shortage f deposit of money i.e. thirty paisas in pre-emption money, justified the dismissal of the suit for pre-emption and whether on the strength of the authority of Supreme Court in Allah Bukhsh v. Umar and another 1994 SCMR 1129 the suit brought by the defendants against the plaintiffs was competent in view of bar contained in S.47, C.P.C.

Muzaffar v. Ali Khan 1989 CLC 2342 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit ---Pre-emptors had deposited pre-emption money in compliance with the decree of the Court which was later on found to be thirty paisas short ---Effect---Pre-emptors' in circumstances, could not be said to be defaulters in compliance with the decree of the Court to the extent of thirty paisas---Such a bona fide mistake or lapse in good faith on the, part of pre-emptors deserved serious, earnest and compassionate consideration of the Courts as the pre-emptors were not guilty of contumacious disregard of the Court's order---Supreme Court in the interest of justice and equity ignored anti condoned the mistake having occurred in exceptional circumstances of the case.

Muzaffar v. Ali Khan 1989 CLC 2342; Shah Muhammad Khan v. Allah Diwaya PLD 1961 (W.P.) Lah. 743 and Allah Ditta v. Lal Din 1982 SCMR 642 ref.

(c) Constitution of Pakistan (1973)---

----Art.187---Supreme Court being the highest Court of law was empowered to pass any order, decree and issue any direction for the advancement of complete and substantial justice and procedural technicalities could not restrain Supreme Court in doing complete justice.

(d) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.13---Civil Procedure Code (V of 1908), S.47---Pre-emption suit having attained finality, could not be upset and reversed through a separate suit which was barred by S.47, C.P.C.

Allah Bakhsh v. Umar 1994 SCMR 1129 ref.

Mian Younis Shah, Senior, Advocate Supreme Court and Syed Safdar Hussain Shah, Advocate-on-Record (absent) for Appellants.

K.G. Sabir, Advocate Supreme Court and Jan Muhammad Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 17th February, 2000.

2000 S C M R 870

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Muhammad Bashir

Jehangiri and Nazim Hussain Siddiqui, JJ

PROVINCE OF PUNJAB through Collector, Attock---Petitioner

versus

Engr. JAMIL AHMAD MALIK and others---Respondents

Civil Petitions Nos. 282 to 292 of 1998, decided on 3rd April, 2000. , (On appeal from the judgment dated 10-2-1998 passed by the Lahore High Court, Rawalpindi Bench, in R.F.As. Nos. 286 and 338 to 347 of 1993).

(a) Land Acquisition Act (I of 1894)---

----S.23---Acquisition of land---Determination of compensation---Land Acquisition Collector overlooked the potential value of the land to be used for residential purpose as well as its location in assessing the correct value of the land and fixed its price arbitrarily in disregard of the well-established principles for ascertaining the market value of the land to be acquired but relied on the circular issued by the Provincial Board of Revenue ---Validity--­Law Acquisition Collector erred in relying on the circular of Board of Revenue simpliciter, by overlooking the established principles for determination of market value of the land acquired.

Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others 1993 SCMR 1700 and Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670 ref.

(b) Land Acquisition Act (I of 1894)---

----S.23---Acquisition of land---Determination of compensation---Assessment of future prospects of land acquired---Principles.

Following are the principles for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of section 23:

(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land.

(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.

(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back, may be considered including other factors like potential value etc.

Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692; Abdur Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164; Gunj Khatoon v. Province of Sindh 1987 SCMR 2084; Fazalur Rahman v. Collector PLD 1988 SC 32; Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. 1993 SCMR 1700 and Murad Khan and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 ref.

(c) Land Acquisition Act (I of 1894)---

----S.23---Acquisition of land---Determination of fair compensation--­Criteria for determination of fair compensation elaborated.

Murad Khan and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 quoted.

(d) Land Acquisition Act (I of 1894)---

----S.28 [as amended by S.2, North-West Frontier Province Land Acquisition (Amendment) Ordinance (V of 1983).]---Payment of interest on excess compensation---Court could direct the Collector to pay simple interest on excess compensation at the rate of 6 per cent. per annum.

(e) Land Acquisition Act (I of 1894)---

----S.34---Acquisition of land---Payment of interest---Provision' of S.34, Land Acquisition Act, 1894, when applicable.

Imtiaz Muhammad Khan, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 2 to 10.

Bashir Ahmad Ansari, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos. l l and 14 to 16.

Date of hearing; 3rd April, 2000.

2000 S C M R 879

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, CJ., Muhammad Bashir Jehangiri

and Nazim Hussain Siddiqui, JJ

WAPDA and others---Appellants

versus

KHANIMULLAH and others---Respondents

Civil Appeals Nos. 1258 to 1321 of 1997 and 738 of 1998, decided on 7th April, 2000.

(On appeal from the judgment dated 5-8-1997 passed by the Peshawar High Court, Peshawar, passed in W.Ps. Nos.843 , 865, 854, 911, 895, 910, 887, 848, 846, 894, 914, 862, 874, 845, 873, 847, 877, 844, 913, 904, 876, 882, 906, 857, 901, 907, 878, 917, 916, 903, 883, 893, 885, 858, 891, 855, 890, 849, 889, 869, 860, 879, 884, 912, 915, 875, 867, 908, 864, 872, 866, 881, 905, 900, 909, 902, 853, 859, 880, 871, 896, 888, 892 and 870 of 19961.

(a) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.12(3), Sched. & S.O 1 (b)--­Constitution of Pakistan (1973), Art. 185(3)---Work-charged employees appointed for a special project by employer in different capacities--­Discharge from service of such employees after having worked continuously for a number of years---Validity---Leave to appeal was granted by Supreme Court to consider whether employees who were appointed by employer in connection with a special project, length of the period of their employment by itself could be made the ground for treating them as "permanent employees".

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.2(g), Sched. & S.O.(1)(b)---Industrial Relations Ordinance (XXIII of 1949), S.25-A---Work-charged employees---Nature of employment--­Termination of appointment of such employees---Principles---Employees admittedly having worked for a number of years for a specific project on work-charged basis could not be treated as "permanent employees" ---Mere length of service for which such employees were engaged in the employment would not be a relevant factor in determining the nature of their employment---Appointments of such employees could be terminated on completion of work on the specified project by the competent authority.

The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed.

Law Lexicon by Venkataramaiya quoted.

A workman could not become a "permanent workman" if work for which he came to be employed expected to be finished within nine months but in fact completed after nine months.

It is the nature of work on which a workman was employed that would determine whether the workman was a permanent or temporary employee and not the appointment letter simpliciter.

A 'Permanent Workman' has been defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman: The length of the period of employment by itself has not been made the ground or a test for determining the nature of the work.

In the present case, the employees were not engaged as permanent employees as defined in Standing Order 1(b) vide their appointment letters, they were employed on work-charged basis and their appointments were liable to be terminated at any time without assigning any reason whatsoever. Mere absence of the specified nature of the project for which they were employed, in employment letters was of no consequence in determining their status, in the facts and circumstances of the case.

Mere length of service for which employees were engaged in the employment would not be a relevant factor in determining the nature of their employment.

In the present case the appointment letters expressly mentioned that employees were work-charged employees and the specific purpose for which they were employed had not been mentioned therein.

Nevertheless, under subsection (5) of section 25A of the Industrial Relations Ordinance, 1969 in adjudicating and determining a grievance under subsection (4) thereof, the Labour Court-was required to go into all the facts of the-case and pass such orders as may be just and proper in the circumstances of the case. The words "shall go into all the facts of the case" clearly signify that the Labour Court had full and complete powers to enter even into questions of facts and to arrive at its own conclusions regardless of there being no illegality of procedure in the domestic proceedings. A double check has been provided, one in the form of domestic inquiry to be held by an employer and the other in the form of a judicial determination by the Labour Court itself.

The employees were employed on work-charged basis against a specific project, therefore, on completion of work on the said project, their appointments could be terminated by the competent authority.

Pakistan International Airlines v. Sindh Labour: Court No.5 and others PLD-1980 SC 323: Muhammad Yaqoob v. The Punjab Labour Court No. l and 5 others 1990 SCMR 1539; Deputy Dire9tor, Administration and Coordination, Faisalabad Development Authority and another v. Muhammad Amin and others 1995 SCMR 21, Izhar Amed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Project Director, Ghotki (WAPDA) v. Commissioner Workmen's Compensation and Authority, under the Payment of Wages Act, Sukkur and Jacobabad at Sukkur and others PLD 1992 SC 451; Executive Engineer, Central Civil Division, Pak.P.W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610; Divisional Engineer, Phones, Phones Division, Sukkur and another v. Muhammad Shahid 1999 SCMR 1526 and Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207 ref.

Project Director, Ghotki (WAPDA) v. Commissioner Workmen's Compensation and Authority under the Payment of Wages Act, Sukkur and Jacobabad at Sukkur and others PLD 1992 SC 451; Executive Engineer, Central Civil Division, Pak.P.W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610; Divisional Engineer, Phones, Phones Division, Sukkur and another v. Muhammad Shahid 1999 SCMR 1526 distinguished.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Khushdil Khan, Advocate Supreme Court and Hussain Khan, Advocate-on-Record (absent) for Respondent No.l (in C.As. Nos. 1258 to 1321 of 1997) and for Appellant.

Date of hearing: 4th April, 2000.

2000 S C M R 890

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary

and Rana Bhagwan Das, JJ

CHAIRMAN, PAKISTAN SPACE AND UPPER ATMOSHPERE

RESEARCH COMMISSION (SPARCO), KARACHI and another---Petitioners

versus

AHMAD MUMTAZ MUSTEHSAN and another---Respondents

Civil Petition for Leave to Appeal No. 1437 of 1999, decided on 25th February, 2000.

(On appeal from the judgment, dated 19-7-1999 passed by Federal Service Tribunal in Appeal No. 139(R) of 1999). , Civil service---

----Resignation---Acceptance or rejection of resignation by Company/Competent Authority---Principles.

Tendering of resignation is a right of an employee to put an end to his service and the authority competent to accept the resignation is bound to process the same within the stipulated period of notice. An employee cannot be compelled to serve an organization compulsorily. However, his resignation can be refused to be accepted if any disciplinary action is pending against him or he is guilty of the charges of misconduct and to escape from the criminal liabilities he has tendered the resignation. In the general service laws no authority has been conferred upon an employer to refuse to accept the resignation on account of exigency of service of the employees. As in the present case the employer without explaining the details of the exigencies had refused to accept the resignation of the employee, therefore, the argument that services of the employee were required to be utilized in a project involving national interest could not be entertained in absence of any material. In such-like situation where the services of a skilled person are hired, there is no condition in the appointment letter that until the completion of a particular project the employee could not resign from his service and if the employee accepts such condition then the employer could show hesitation in accepting the resignation whereas in the present case there was no service condition nor any authority had been given to the employer to refuse acceptance of resignation.

M. Javaid Aziz Sandhu, Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record (absent) for Petitioners.

Respondent No. l in person.

Nemo for Respondent No.2.

Date of hearing: 25th February, 2000.

2000SCMR893

[Supreme Court of Pakistan]

Present; Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

PROVINCE OF THE PUNJAB through District Collector, Faisalabad and 2 others---Petitioners

versus

Kh. MUHAMMAD ILYAS---Respondent

Civil Petition for Leave to Appeal No. 157-L of 2000, decided on 22nd February, 2000.

(On appeal from the judgment of Lahore High Court, Lahore, dated 11-11-1999 passed in S. A. O. No. 1,87 of 1996).

(a) Privately-Managed Schools and Colleges (Taking Over) Regulations, 1972 (M.L.R. 118)---

----While the control, management and supervision of the privately-managed colleges and schools was taken over by the Government, properties in which such institutions were housed did not vest in the Government and no compensation had been paid to the previous management as well as to the owners of the properties for such take-over.

Province of Punjab v. Khan Muhammad 1989 SCMR 558 fol.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 13-A---Privately-Managed Schools and Colleges (Taking Over) Regulations, 1972 (M.L.R. 118)---Tenant, a privately-managed school taken over by Government under the Regulation---Default in payment of rent--­Landlord sought eviction of the tenants who were running a taken over school in the premises on ground of default in payment of rent---Landlord who had acquired ownership of the property from its previous owner by virtue of the sale-deed served a statutory notice to the tenants in terms of S.13-A, West Pakistan Urban ' Rent Restriction Ordinance, 1959 and demanded rent of the property---Tenant paid no heed to lawful demand of landlord and did not pay the rent but challenged the ownership of the landlord claiming that the property in question belonged to the Government and there existed no relationship of landlord and tenant between the parties---Validity---While the control, management and supervision of the privately-managed colleges and schools was taken over by the Government, properties in which such institutions were housed did not vest in the Government as no compensation had been paid to the person, management as well as to the owner of the properties for such taking over---Relationship of landlord and tenant, therefore, existed between the previous owner and the property stood transferred in the name of new landlord and relationship of landlord and tenant also came into existence between the parties by operation of law---Tenant having defaulted in payment of rent, they were liable to be ejected---Landlord, in circumstances, was not required to have a declaration of his title from a competent Court of plenary jurisdiction.

Province of Punjab v.. Khan Muhammad 1989 SCMR 558 fol.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064 and Muhammad Hussain v. Muhammad Siddique PLD 1988 SC 731 distinguished.

Muhammad Zama n Bhatti, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd February, 2000'.

2000SCMR897

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, CJ, Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

PAKISTAN LAWYERS' FORUM---Petitioner

versus

General PERVEZ MUSHARAF and others---Respondents

Civil Petition No.50-L of 2000, decided on 28th February, 2000.

(On appeal from the order, dated 9-12-1999 of the Lahore High Court, Lahore, passed in Writ Petition No.20608 of 1999).

Constitution of Pakistan (1973)---

----Art.185(3)---Petition for leave to appeal---High Court, in a Constitutional petition, filed by the petitioner, had adjourned the hearing of his Constitutional petition with direction to await result of similar cases pending before the Supreme Court---Contention of the petitioner was that the rule of propriety on which the impugned order was based was not laid down by the Supreme Court, that refusal to exercise jurisdiction by the High Court amounted to refusing "access of justice" which was a guaranteed fundamental right and that Supreme Court could not as a matter of course entertain a Constitutional petition under Art. 184(3) of the Constitution and allow party to bypass the High Court---Validity---Stay of proceedings could not be equated with abdication of jurisdiction, matter being procedural, High Court, was competent to regulate its own procedure and common procedure was that such-like petitions were stayed by the respective High Courts pending disposal of similar matter-, in the Supreme Court.

Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 fol.

Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975

SC 66 distinguished.

Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 437; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 .SC 66; Farough Ahmed Siddiqi v. The Province of Sindh and others 1994 SCMR 2111; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Mian Muhammad Shahbaz Sharif v. The State 1997 SCMR 1361; Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Tahafaz Dastoor v. Federation of Pakistan PLD 1998 S C 1263 ref.

A.K. Dogar, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents. '

Date of hearing: 28th February, 2000.

2000 S C M R 900

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

ABID KAMAL---Petitioner

versus

MUDDASSAR MUSTAFA and others---Respondents

Civil Miscellaneous Application No.177-L of 1997 in constitutional Petition No. 178-L of 1995, decided on 18th February, 2000.

(On appeal from the judgment, dated 13-12-1995 passed by this Court in Civil Petition No. 175-L of 1995).

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

----S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Petition for leave, Petitioner had consumed some time in pursuing the matter in to appeal--Supreme Court on account of the impression that "application under S.12(2) C. P. C. would be competent before Supreme Court against the final order"---

Plea of the petitioner, therefore, was that permission be accorded by Supreme Court to withdraw the petition with observation from the Court that the Court seized of the matter would sympathetically consider condonation of delay if occurred in approaching the said Court because he had consumed 2 years in the proceedings before Supreme Court---Validity---Application under S.12(2), C.P.C. subject to all just exceptions, would be competent before the Court which had finally decided the appeal---Supreme Court, in circumstances, allowed the contention of the petitioner that the Court seized of the matter, if instituted under S.12(2), C.P.C. should sympathetically consider request if made for condonation of delay in filing of the application.

PLD 1995 SC 564; Khawaja Muhammad Yousuf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 and Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 ref.

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

----S. 12 (2)---Application under S.12(2), C.P..C. subject to all just exceptions will be competent before the Court which had finally decided the appeal.

PLD 1995 SC 564; Khawaja Muhammad Yousuf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas arid others 1999 SCMR 1516 and Secretary, Ministry of Religious Affair's and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR,1171 ref.

Muhammad Akram Sheikh, Advocate Supreme Court for. Petitioner.

Nemo for Respondents.

Date of hearing: 18th February, 2000.

2000 S C M R 903

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

MUHAMMAD SHOAIB ALAM and others---Petitioners

versus

MUHAMMAD IQBAL---Respondent

Civil Petitions for Leave to Appeal Nos.555, 559 and 560 of 2000, decided on 29th February, 2000.

(On appeal from the judgment of Lahore High Court, Lahore, dated 22-1-2000 passed in S.A.O. Nos.31 of 1999, 32 of 1999 arid 33 of 1999).

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

----S.100---Second appeal---Concurrent findings of fact recorded by two Courts below---Interference by High Court---Scope---Ordinarily such findings were not disturbed by High Court in second appeal, but could always be disturbed and reversed on the ground that the decision was based on misreading of evidence and that it was a result of perverse application of evidence or that the conclusions were drawn after ignoring vital piece of evidence on record.

(b) Constitution of Pakistan (1973)---

----Art.185(3)---Petition for leave to appeal---Where findings of High Court were very much consistent with the evidence on record and also in accord with record and also in accord with the principles of law, no interference was warranted with such findings.

Saira Bal v. Anisur Rahman 1989 SCMR 1366; Juma Sher v. Sabz Ali 1997 SCMR 1062 and Agaria Amir Ali v. Abdul Majid 1993 SCMR 67 fol.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Bona fide personal need of landlord---Proof---Statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal was sufficient to prove that such requirement of landlord was bona fide.

F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 fol.

Irshad Hussain v. Ijaz Hussain PLD 1994 SC 326 distinguished.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner (in C.P. Nos.555, 5,59 and 560 of 2000).

Nemo for Respondent.

Date of hearing: 29th February, 2000.

2000 S C M R 907

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Rashid Aziz Khan

and Iftikhar Muhammad Chaudhary, JJ

ABDUL HAQUE INDHAR and others---Petitioners

versus

PROVINCE OF SINDH through Secretary

Forest, Fisheries and Livestock Department, Karachi and 3 others---Respondents

Civil Petitions for Leave to Appeal Nos.68-K and 69-K of 2000, decided on 10th February, 2000.

(On appeal from the judgment, dated 20th January, 2000 passed by High Court of Sindh in Constitutional Petitions Nos.D-879 and D-880 of 1994).

(a) Land Lease Order, 1978 [M.L.O. 'Zone C']---

----No.60, Part 11, paras. 7 & 9---General Clauses Act (X of 1897), S.21--­Grant of Agro-Forestry Cultivation Lease for 5 years through auction--­Lessee, before the commencement of the temporary lease for 5 years, managed to get extended the lease period to 30 years from the then Chief Minister of the Province---Authorities, however, later on, cancelled the lease on the grounds of its being illegal, ab initio, incompetent and without authority---Validity---Lease of land ought to have given by public auction after following the procedure laid down in paras. 7 & 9 of Part II of Land Lease Order, 1978---Competent Authority was not authorised to grant' initially lease for more than a period of three years for agricultural purpose--­Competent Authority including the Chief Minister under the scheme of relevant law had no lawful authority to extend the period up to 30 years, that too, without auction---Authority of Forest Department, which had added the extension clause in the lease, in exercise of jurisdiction under S.21, General Clauses Act, 1897, was competent to rescind the order of extension which was operating in favour of the lessee and principles of locus poentientiae and that of natural justice was not attracted in circumstances.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 distinguished.

PLD 1978 Kar. 807; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning, Officer, N.A. 158, Nuashero Feroze and others 1994 SCMR 1299 ref.

(b) Locus poenitentiae, principle of---

----Concept---Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle -of law that order once passed becomes irrevocable and past and closed transaction---If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

(c) Maxim---

--------“Audi alteram partem"---Applicability---Conditions and exceptions.

The principle of natural justice enshrined in maxim "audi alteram partem" is always deemed to be embedded in the statute and even if there is no such specific or express provisions, it would be deemed to be one of the parts of the State because no adverse action can be taken against a person without providing right of hearing to him. But at the same time this principle cannot be deemed to be of universal nature because before invoking/applying this principle one has to specify that the person against whom action is contemplated to be taken prima facie has a vested right to defend the action and in those cases where the claimant has no basis or entitlement, in his favour he would not be entitled for protection of the principles of natural justice.

Principle of "audi alteram partem" is to be read into the relevant provision if the action is to affect any vested right of a person. If this rider is not placed for applying the principle of "audi alteram partem" then in certain cases where the law demands that action must be taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any legal entitlement. It is high time to ensure that transaction between the individuals vis-a-vis the State are just, fair, open, honest and transparent. Therefore, action of individuals which is not honest and based on mala fides may not be allowed to exist merely for the reason that the principle of natural justice was violated.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Nushero Feroze and others 1994 SCMR 1299 ref.

(d) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court---Scope---Jurisdiction conferred upon High Court under Art. 199 of the Constitution could not be exercised to perpetuate ill-gotten gains.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230; Market Committee, Multan through its Administrator and another v. Muhammad Sabir 1995 SCMR 305 and Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 ref.

Ibrar Hasan, Advocate Supreme Court, S.M. Naeem, Advocate Supreme Court and .Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Petitioners (in C.Ps. Nos.68-K and 69-K of 2000).

Nemo for Respondents (in both Petitions).

Date of hearing: 10th February, 2000.

2000SCMR917

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J

and Kamal Mansur Alam, J

Syed WASIM AHMED ---Petitioner

versus

K.E.S.C. and 3 others---Respondents

Civil Appeal No.464 of 1998, decided on 21st December, 1999.

(On appeal from the judgment of Federal Service Tribunal, dated 28-10-1997 passed in Appeal No. 184-K of 1997).

Service Tribunals Act (LXX of 1973)---

----S.2-A---Scope of application of S.2-A, Service Tribunals Act; 1973--­Appeal having been presented by the appellant before Service Tribunal within one month of the order of rejection of his representation by the Departmental Authority, he was entitled to maintain his appeal before the Service Tribunal.

As a result of insertion of section 2-A in the Service Tribunals Act, 1973 the appellant was deemed to be a civil servant for purposes of availing of remedy available to him under the Act. It could not be disputed that but for the insertion of section 2-A in the Act, the appellant would have been entitled to challenge order of his termination from service in appropriate proceedings before the Court. However, as a result of the amendment brought about in the Service Tribunals Act that remedy had been taken away from the appellant. Had there been any proceedings pending on the date section 2-A was inserted in the Act, the appellant would have been entitled to approach the Service Tribunal on abatement of such proceedings within 90 days of the establishment of appropriate Tribunal. The right .of appeal had been made available to the civil servants both under section 4 as well as under section 6 of the Act. Section 4 of the Act was amended in 1974 by Act XXXI of 1974 which conferred right of appeal to a civil servant aggrieved by an order, whether original or appellate made by the departmental authority in respect of any terms and conditions of his service within 30 days of the communication of said order or within 6 months of the establishment of appropriate Tribunal, whichever was later, to prefer appeal before such Tribunal. In the present case, the departmental appeal filed by the appellant was rejected on 26-5-1997 but before he could file any other proceedings to challenge the original order of termination passed by the departmental authority, the law was amended and, therefore, the appellant was entitled to present his appeal within 6 months from the date the Tribunal was conferred jurisdiction to entertain an appeal from a person aggrieved by the order in respect of terms and conditions of service of a corporation or, organisation controlled or managed by the Government. Since the appeal was presented by the appellant before the Service Tribunal within one month of the order of rejection of his representation by the Departmental Authority, he was entitled to maintain his appeal before the Service Tribunal.

Appellant in person.

A.S. K. Ghoury, Advocate-on-Record for Respondents.

Date of hearing: 21st December, 1999.

2000SCMR919

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Rashid Aziz Khan

and Iftikhar Muhammad Chaudhary, JJ

ABDUL GHAFOOR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.412 of 1994, decided on 7th February, 2000.

(On appeal from the judgment, dated 31-7-1990 passed by Lahore High Court, Lahore in Criminal Appeal No.459 of 1988 and Murder Reference No.78 of 1988).

(a) Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to accused to consider whether in view of the deep-rooted enmity between the parties High Court while appraising the prosecution evidence furnished by the eye-witnesses related to the deceased, had followed the principles of safe administration of justice in criminal cases.

(b) Penal Code (XLV of 1860)---

----S.302---Appraisal of evidence---Related witnesses---Evidence, furnished by interested witnesses related to the victim or deceased cannot be discarded merely due to such relationship---Court, however, in such a situation in the interest of justice seek corroboration from other evidence available on record---Such corroboration may not emanate from an independent witness, but anything in the circumstances which tends to satisfy the Court that the witness has spoken truth, can safely be considered to be the corroborative evidence.

Nazir and others v. The State PLD 1962 SC 269 and Iqbal alias Bhalla and 2 others v. The State 1994 SCMR 1 ref.

(c) Penal Code (XLV of 1860)---

----S.302---Appraisal of evidence---Eye-witnesses though were closely related to the deceased but their evidence being consistent, coherent and trustworthy, was worth consideration which had fully supported the 'prosecution case against the accused---Presence of dead body of the deceased in the field and the recovery of blood-stained , earth therefrom had corroborated the prosecution version---Non-recovery of crime empties from the spot, in the circumstances, was not fatal to the prosecution case--­Defence evidence suggesting a different stay was not supported by any material on record---No case having been made out in favour of accused on merits, delay in filing the time-barred appeal was not condoned in the absence of any cogent reasons---Appeal was dismissed accordingly.

Nazir and others v. The State PLD 1962 SC 269; Din Muhammad v. The Crown 1969 SCMR 777; Ali Khan v. The State PLD 1980 SC 109; Allah Ditta and others v. The State PLD 1970 SC 734; Muhammad Akber v. Muhammad Khan and others PLD 1988 SC 274 and Iqbal alias Bhalla and 2 others v. The State 1994 SCMR 1 ref.

Advocate Supreme Court for Appellants.

Mrs. Anwar Raza, Advocate Supreme Court and Yousaf Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 7th February, 2000.

2000 S C M R 925

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui

and Wajihuddin Ahmed, JJ

ABDUL HAQ---Petitioner

versus

G.M. SNGP LTD., LAHORE, and another---Respondents

Civil Petition No.496-L of 1998, decided on 21st April, 1999.

(On appeal from the judgment of Federal Service Tribunal, dated 16-1-1998 passed in Appeal No.734-L of 1997).

Constitution of Pakistan (1973)--

----Art.212(3)---Petition for leave to appeal---Contention raised by petitioner besides being in the nature of individual grievance and raising no question of law of public importance were duly considered and repelled by Service Tribunal---Order passed by Service Tribunal did not suffer from any legal infirmity so as to justify interference by Supreme Court under Art.212(3) of the Constitution---Petition for leave to appeal against order .of Service Tribunal was dismissed.

Sh. Khizar Hayat, Advocate- Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Saleem Baig, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 21st April, 1999.

2000 S C M R 928

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

MAQSOOD AHMED TOOR and 4 others---Petitioners

versus

FEDERATION OF PAKISTAN through the Secretary to the

Government of Pakistan, Ministry of Housing

and Works, Islamabad and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1142 and 1567 of 1999, decided on 18th February, 2000.

(On appeal from the judgment and order of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 24-5-1999 passed in Writ Petitions Nos. 1427 of 1997 and 1084 of 1999 respectively).

(a) Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Appeal to Supreme Court---Question of jurisdiction of High Court and maintainability of Constitutional petition being of essential importance involving a pure question of law in view of the admitted facts was not pressed into service before the High Court---Such question, held, could lawfully be allowed to be raised before the Supreme Court.

(b) Constitution of Pakistan (1973)---

----Art.. 199(l)(a)----Constitutional petition---Maintainability---"Persons performing functions in connection with affairs of Federation or Province"--­Foundation executing a social welfare scheme on "no profit no loss basis" by virtue of its registration under Companies Ordinance, 1984, does not enjoy the status of a statutory corporation established and controlled by the Federation, nor is it performing any of sovereign functions of the State so as to be declared as a body corporate performing functions in connection with the affairs of the Federation---Constitutional petition is not maintainable against such foundation.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 fol.

(c) Constitution of Pakistan (1973)---

-----Art. 199 (1)(a)----“Person performing functions in connection with affairs of Federation or Province"---Test---Primary test must always be as to whether the functions entrusted to the organisation or person concerned were indeed functions of the State involving some exercise of sovereign or public powers; whether the control of the organisation in a substantial manner was in the hands of Government and whether the bulk of the funds was provided by the State.

Noor Jehan Shah v. Pakistan Defence Officers Housing Authority 1997 MLD 2261 ref.

(d) Civil Servants Act (LXXI of 1973)---

---S. 2(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Maintainability---Civil servants having no right guaranteed under the law or the Constitution in relation to their terms and conditions of service, could not claim allotment of a plot or Government accommodation in a scheme floated under any policy decision of the Government or a statutory corporation which could be enforced in the Constitutional jurisdiction of High Court.

Amin-ur-Rehman Khan v. Pakistan through Secretary, Ministry of Works 1989 SCMR 1948 ref.

S.M.K. Lodhi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Mansoor Ahmed, Deputy Attorney-General for Respondent No. 1.

Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th February, 2000.

2000SCMR934

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Nasir Aslam Zahid and Sh. Riaz Ahmed, JJ

GOVERNMENT OF PAKISTAN through Establishment

Division, Islamabad and others---Petitioners

versus

HAMID AKHTAR NIAZI and others---Respondents

Civil Petitions Nos.276, 279, 316, 355, 498, 499, 958 and 959 of 1999, decided on 13th December, 1999.

(On appeal from the judgment, dated 7-12-1998 passed by the Federal Service Tribunal, Islamabad in Appeal No. 124Q of 1980).

Civil Service of Pakistan (Composition and Cadre) Rules, 1954---

----R.3---Service Tribunals Act (LXX of 1973), S.4---Promotion---Leave to appeal was granted by Supreme Court to examine the pleas that Rules promulgated by the President of Pakistan under S.3, Civil Service of Pakistan (Composition and Cadre) Rules, 1954 being statutory rules could not be altered by an office memorandum- issued by the Establishment Division of Federal Government and Service Tribunal had no jurisdiction to direct promotion of a civil servant in various grades from the date respondent civil servant in the appeal filed before the Tribunal was promoted as same was outside the jurisdiction of Service Tribunal.

Mansoor Ahmed, Deputy Attorney-General and Anwar H. Mir, Advocate-on-Record for Petitioners (in C.P.~No.276 of 1999).

M. Bilal, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No. l (in C. Ps. Nos. 276 and 316 of 1999).

K.M.A. Samdani, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Mehr Khan Malik, Advocate-on-Record (in C.P. No.316 of 1999) for Petitioners (in C.Ps. Nos. 279, 116, 498., 499, 958 and 959 of 1999).

Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record (absent) for Petitioners (in C.P. No. 355 Of 1999).

Date of hearing: 13th December, 1999.

2000SCMR937

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui

and Abdur Rehman Khan, JJ

SANA ULLAH---Appellant

versus

RASHID AHMAD KHOKHAR and 3 others---Respondents

Civil Appeal No. 1145 of 1997, decided on 23rd November, 1998.

(On appeal from the judgment, dated 3-11-1995 of the Lahore High Court, Lahore, passed in Civil Revision No. 1670 of 1995).

(a) Limitation Act (IX of 1908)---

----S.5---Delay of one day in filing appeal---Application for condonation of delay---Order impugned before Court was not sustainable and grounds of condonation of delay also appeared to be reasonable---Delay was condoned.

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

----S.12---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Specific performance of agreement to sell property---Execution of agreements were admitted but each side blamed the other for violation of this term---Points as to which side violated agreement could not be determined in abstract form at the stage of appeal before Supreme Court but could only be resolved after both the parties brought evidence on record in respect of their view-point---Supreme Court, in circumstances, remanded the case to Trial Court indicating the points to be determined after setting all the relevant issues arising from the pleadings of the parties and recording of evidence thereon.

Ch. Muhammad Hasan, Advocate Supreme Court for Appellant.

Nasir Saeed Sheikh, Advocate Supreme Court for Respondents.

Date of hearing: 23rd November, 1998. .

2000SCMR941

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

ABDUL RAHIM and 4 others---Petitioners

versus

Mst. NASIMA FAIZ---Respondent

Civil Petition No. 342-L of 1999, decided on 23rd November, 1999.

(On appeal from the order, dated 22-2-1999 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision'No.3-D of 1999).

Punjab Pre-emption Act (I of 1913)---

----S.8---Constitution of Pakistan (1973), Art.185(3)---Exclusion of areas from the pre-emption ---Leave to appeal was granted by Supreme Court to consider the questions as to whether right of pre-emption was at all available with regard to the suit land as the same vested in a Development Authority and proprietary rights thereof had not been conferred as yet upon the private parties; whether the right to pre-emption was available against colony land under Punjab Pre-emption Act, 1913 as the same stood exempted from pre­emption under S.8 of the said Act; whether Civil Judge III Class was possessed of the pecuniary jurisdiction in the matter and if the answer to this question was in the negative then whether the entire superstructure thereon was not liable to be struck down; whether the High Court had not lost sight of the fact that case had not been tried by a Court of competent jurisdiction, both at the trial and appellate 4tage, that the judgment and decree, passed by the Civil Judge III Class having been reversed, whether suit was not liable to be processed under the Punjab Pre-emption Act, 1913; whether the plaintiff was not required to prove right of pre-emption by entering the witness-box as witness and whether Supreme Court judgment in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 was not attracted to the case.

N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Ch.-Muhammad Abdus Salim, Senior Advocate Supreme Court with Muhammad Aslam Ch., Advocate-on-Record for Petitioners.'

Mian Atta-ur-Rehman, Advocate-on-Record for Respondent.

Date of hearing; 23rd November, 1999,

2000 S C M R 944

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ, Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

IMTIAZ BUTT and others---Appellants

versus

CHAIRMAN, PAKISTAN INTERNATIONAL

AIRLINES CORPORATION, KARACHI---Respondent.

Civil Appeals Nos. 873 and 874 of 1998, decided on 20th December, 1999.

(On appeal from the judgment of Federal Service Tribunal, dated 5-10-1998 in Appeals Nos.536-R and 535-R of 1998).

Service Tribunals Act (LXX of 1973)---

----S.2-A---Appeals filed before the Service Tribunal were within a period of less than one month from the date proceedings were declared abated and therefore, Service Tribunal was not justified in dismissing the appeals as time-barred.

Nemo for Appellants.

Anwar Kamal, Advocate Supreme Court for Respondent.

Date of hearing: 20th December,, 1999.

2000 S C M R 945

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

Messrs FLYING KRAFT PAPER MILS (PVT.) LTD. ---Petitioner

versus

CENTRAL BAORD OF REVENUE and others---Respondents

Civil Petition No. 1262 of 1998, decided on 16th December, 1999.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 14-9-1998 passed in W.P. No.3229 of 1996).

Customs Act (IV of 1969)----

----S.31-A---S.R.O. No.484(1)/92, dated 14-5-1992---Constitution of Pakistan (1973), Art.185(3)---Exemption---Leave to appeal was granted by Supreme Court to examine the scope of S.31-A, Customs Act, 1969 to cater to the legitimate expectation which arises consequent upon taking of decisive steps by juristic person by incurring expenditure and making endeavours to import machinery and set up an industry in pursuance of the exemption granted by S.R.O. and to consider questions to the effect that as many as ten letters of credits had been opened between 15-6-1994 and 18-2-1996 in terms of contract, dated 6-6-1995, that High Court was in error in finding that no formal contract was even signed between the parties; that relief prayed for in the Constitutional petition should have been granted, that action of the Department declining to allow exemption in duty be declared to be without lawful authority and that the consignment in question should 'have been released in terms of S.R.O. 484(1)/92, dated 14-5-1992 subject to furnishing the indemnity bond.

Irfan Qadir, Advocate Supreme Court for Petitioner.

Mansoor Ahmad, Dy. A.-G. (absent) for Respondent No. 1.

A. Karim Malik, Senior Advocate Supreme Court for Respondents Nos. 2 and 3.

Date of hearing: 16th December, 1999.

2000 S C M R 947

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Ch. Muhammad Arif, JJ

BASHIRAN BIBI---Petitioner

versus

FATIMA JAN and 11 others---Respondents

Civil Petition for Leave. to Appeal No. 1015-L of 1998, decided on 21st August, 1999.

(On appeal from the judgment/order of Lahore High Court, Lahore, dated 17-6-1998 passed in Civil Revision No. 1967-D of 1996).

Constitution of Pakistan (1973)---

----Art.185(3)---Board of Revenue, Punjab Notification No.1270-78/ 579-R(L), dated 30-4-1978---Jammu and Kashmir Refugees "Guzara Allowance"---Petitioner claimed to be a separate family and was entitled to receive separate share in the land allotted to her father---Revision petition filed by petitioner in High Court was dismissed with finding that she could inherit her share on the death of her father and opening of his succession from what was left-by him---Petitioner, at the time when temporary Guzara Allowance was granted, was a member of family of her father and she being also successor-in-interest of the head of the family could not take benefit of Notification, dated 30-4-1978 issued by the Board of Revenue, Punjab--­Finding of High Court was not interfered with by Supreme Court---Petition for leave to appeal was dismissed.

Mian Sarfrazul Hasan, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st August, 1998.

2000 S C M R 950

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

CHINA ANNENG CONSTRUCTION CORPORATION -

through Project Manager---Petitioner

versus

K.A. CONSTRUCTION CO. through Attorney---Respondent

Civil Petitions Nos. 1572 and 1573 of 1999, decided on10th November, 1999.

(On appeal from the judgment, dated 2-11-1999 passed by the High Court of Balochistan, Quetta in R.F.As. Nos.2 and 3 of 1998).

Companies Ordinance (XLVII of 1984)---

----Part XIV [Ss. 450 to 460]---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to examine the contentions -that High Court dismissed the appeal, only when an oral objection was taken which was mala fide in that such objection was neither taken by the respondent at the time of service of the appeals on them nor even prior to the appellant furnishing Bank guarantee representing the entire decretal amount; that power of attorney in favour of the signatory on behalf of the Corporation together with the resolution in support thereof as also the copies of the Memorandum and Articles of Association, did constitute due and sufficient compliance with the requirement of law; that Ss. 450 to 460 of the Companies Ordinance, 1984 were not attracted/applicable in the case of Corporation, which had not established any place of business in Pakistan and was executing an international contract awarded pursuant to an Invitation of Tender and that the effect of the documents on record should have been determined after providing an opportunity to produce and prove the same, by way of additional evidence.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684 and Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1959 SC (Pak.) 550 ref.

Bilal A. Khawaja, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 10th November, 1999.

2000 SCMR 953

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J. Sh. Riaz Ahmed and Ch. Muhammad Arif,JJ

MUHAMMAD SHUJAAT KHAN through

Legal Heirs and others---Appellants

versus

Nawab MASHKOOR AHMED KHAN and others---Respondents

Civil Appeals Nos. 1625 and 1626 of 1995, decided on 8th December, 1999.

(On. .appeal from the judgment dated 10-7-1975 passed by Lahore High Court, Lahore, in R.F.A. No.80 of 1983).

Limitation Act (IX of 1908)---

----S.5---Delay---Filing of appeals---Application for condonation of delay--- Mere assertion that delay in filing of the appeals was neither intentional nor deliberate but was on account of the reason that one appellant was an old lady and the other was Pardanashin, held, did not make out a sufficient ground for condonation of delay in filing of appeals--­Application for condonation of delay being vague failed to make out any reason which prevented the appellants from pursuing the matter diligently.

Gopal Jeo Bigraha v. Mahmuda Begum PLD 1968 Dacca 265; Chairman, District Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258; Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79 and Sana Ullah v. Rashid Ahmad and others Civil Appeal No. 1145 of 1997 distinguished.

Khan M. Younis Khan, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record (absent) for Appellants.

Abdul Waheed Khan, Advocate Supreme Court and Ch. M. Aslam, Advocate-on-Record (absent) for Respondent No. 1.

Respondents Nos. 2 and 4: Ex parte.

Date of hearing: 8th December, 1999.

2000 SCMR 957

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

KHUSHI MUHAMMAD and others ---Petitioners

versus

HUSSAIN BUKHSH through Legal Heirs---Respondent

Civil Petition No. 1481-L of 1999, decided on 31st December, 1999.

(On appeal from the judgment, dated 7-7-1999 passed by the Lahore High Court-, Lahore in Civil Revision No. 1841-D of 1984).

Punjab Pre-emption Act (IX of 1991)----

----S.5---Right of pre-emption ---Vendee had acquired an interest in the suit property prior to the sale as a lessee under Pattanama and not a tenant pursuant to any statutory provision---Both the Courts below were in error in misreading the documentary evidence and ignoring the relevant portion of the oral evidence while arriving at the conclusion that the vendee was in possession of the suit land as a tenant---High Court, in revision, was justified in reversing such findings of the Courts below on account of being suffering from misreading and non-reading of material evidence on record.

Ch. Sardar Ali, Advocate Supreme Court with Muhammad Aslam Ch., Advocate-on-Record for Petitioners.

Ch. Khurshid Ahmed, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 31st December, 1999.

2000 SCMR 959

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehrnan Khan and Munir A. Sheikh, JJ

GULZEB HUSSAIN ---Petitioner

versus

SUI NORTHERN GAS PIPELINES LIMITED

and 2 others---Respondents

Civil Petition for Leave to Appeal No.410-L of 1998, decided on 14th

April, 1999. .

(On appeal from the judgment, dated 28-11-1997 of the Federal Service Tribunal passed in Appeal No.674(L) of 1997).

Service Tribunals Act (LXX of 1973)---

----S.2-A---Provision of S.2-A, Service Tribunals Act, 1973 being a law relating to procedure, as such, all. the proceedings pending before any forum other than the Federal Service Tribunal in respect of departmental order made before insertion of S.2-A in Service Tribunals Act, 1973 could no longer continue and the only remedy was to approach the Service Tribunal.

Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 fol.

Ch. Ghulam Qadir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 14th April, 1999.

2000 SCMR 961

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

THE CHIEF ADMINISTRATOR OF AUQAF, PUNJAB---Petitioner

versus

Mst. RAJ BIBI and others---Respondents

Civil Petition No. 1498-1, of 1996, decided on 2nd December, 1999.

(On appeal from the judgment, dated 21-5-1996 passed by the Lahore High Court, Lahore in F.A.O. No.81 of 1985).

Punjab Waqf Properties Ordinance (IV off1979)---

-----S.7---Constitution of Pakistan (1973), Art.185(3)---Controversy as to where the houses in question were located whether the site underneath the houses had been lawfully taken over by the Auqaf Department and whether the Auqaf Department had no authority to assume the control and management of the said houses were still wide open between the parties--­District Judge had also not decided as to whether the land comprising specific Khasra numbers were ever dedicated to the shrine or the same had been Waqf property by the long user thereof---District Judge had simply non-suited the applicant on the ground that since the property belonged to Provincial Government, therefore, applicant had no locus standi or cause of action to file the petition---Real question forming subject-matter of the petition had not been clearly determined by the District Judge--High Court remanded the case to District Judge to determine as to whether the land forming subject-matter of the notification impugned in the application was Waqf or not---Petition for leave to appeal against such order of the High Court was dismissed accordingly.

Raja Dilshad A. Khan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Qadeer Ahmed Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 2nd December, 1999.

2000 S C M R 966

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Muhammad Bashir Jehangin, Nasir Aslam Zahid, Ahdur Rehman Khan and Wajihuddin Ahmed, JJ

ASIF MAHMOOD CHUGHTAI, ADVOCATE and 17 others---Petitioners

versus

GOVERNMENT OF PUNJAB through Chief Secretary and others---Respondents

Constitutional Petitions Nos.71 of 1996, 7 of 1998 and Criminal Original No.9-L of 1998, decided on 6th December, 1999.

(On appeal from the judgment of Lahore High Court, dated . 30-4-1995 passed in Writ Petition No.982 of 1993).

Civil service--

Appointment. -------Candidates having passed written test but failed in interview to secure qualifying marks were rightly declined appointments.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Malik Azam Rasool, Advocate Supreme Court for Respondents.

Tariq Khokhar, Addl. Advocate-General, Punjab for Lahore High Court.

Date of hearing: 6th December, 1999.

2000 S C M' R 971, [Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MUHAMMAD MUNIR and others---Petitioner

versus

DEPUTY SETTLEMENT COMMISSIONER and others---Respondents

Civil Petition No. 1100-L of 1998, decided on 13th December, 1999.

(On appeal from the judgment and order of the Lahore High Court, dated 6-7-1998 passed in W.P. No.2-R of 1985).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider the contentions of the petitioners that they had obtained the shops in question. strictly in accordance with the law on the subject and that initial order dealing with as many as 11 shops as one item at a paltry surn was duly noticed by the Competent Authority and wrong done to the petitioners Was remedied; that private respondents were not entitled to lay claim to the said shops transferred to the petitioners; that as necessary parties had not been impleaded, in the proceedings of Constitutional petition, same was liable to be dismissed and that as High Court had allowed time to the counsel of the petitioner to obtain documents from the Settlement Department and in the event of their refusal to do the needful, the record was to be summoned but nothing seemed to have happened thereafter with the result that the impugned judgment/order of the High Court could not be equated with a proper or lawful order to advance the cause of justice.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court instructed by Tanvir Ahmed Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 13th December, 1999.

2000 S C M R 974

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sheikh Riaz Ahmed and Ch. Muhammad Arif JJ

SAMAR GUL and others---Appellants

versus

MOHABAT KHAN and others---Respondents

Civil Appeal No. 117 of 1995, decided on 8th December, 1999.

(On appeal from the judgment and decree, dated 8-6-1994 passed by the Peshawar High Court, Peshawar in Civil Revision No. 87 of 1987).

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

----S.115---Revision---Scope---If concurrent findings of the Courts below were the result of misreading of evidence on the record, it became the duty of the High Court/revisional forum tb set the wrong right in accord with its jurisdiction under S.115, C.P.C.---If, however, the issues struck in a given case were found to have been resolved by bringing to bear the oral as well as documentary evidence on such findings by both the 'trial Court and the Appellate Court concurrently, then the revisional jurisdiction of High Court would not be attracted.

(b) Constitution of Pakistan (1973)---

----Art.185---Appeal to Supreme Court---Findings of Trial Court that suit was beyond time having not been challenged through cross-objections before the 1st Appellate Court, defendants in the suit could not be permitted to fill in the lacunae in their cause at appeal stage before the Supreme Court.

Muhammad Zahoor Qureshi Azad, Advocate Supreme Court/Advocate-on-Record for Appellants.

Saeed Bag, Advocate Supreme Court and Nur Ahmed Khan, Advocate-on-Record (absent) for Respondents Nos. 1 to 7.

Respondents Nos.8--46: Ex parse.

Date of hearing: 8th December, 1999.

2000 S C M R 989

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Mst. WAZIR BEGUM and others---Petitioners

versus

MEMBER, BOARD OF REVENUE/CHEIF SETTLEMENT

COMMISSIONER and others---Respondents

Civil Petitions Nos. 381-L and .438-L of 1997, decided on 22nd November, 1999.

(On appeal from the judgment of Lahore High Court, Lahore, dated 16-4-1996 passed in I.C.As. Nos.321 and 322 of 1994).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)___

----S.3(1)(b)---Law Reforms Ordinance (XII of 1972), Ss.3 & 4--­Constitution of Pakistan (1973), Art.185(3)---Intra-Court Appeal--­Maintainability---Condition---No appeal, revision or review was provided against order of Revenue Authorities under S.3(1)(b) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---High Court dismissed Intra-Court Appeal on the ground that appeal was not maintainable--­Validity---Provisions of appeal, revision or review having not been provided in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, order of the dismissal of Intra-Court Appeal could not be upheld---Petition for leave to appeal was converted into appeal by Supreme Court and the case was remanded to the High Court for disposing of the Intra-Court Appeal in accordance with law.

Jari Ullah Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Khaliq Ansari, Advocate Supreme Court and Ch. M. Aslam, Advocate-on-Record for Respondent No. 1.

Muhammad Ghani, Advocate Supreme Court and. Mahmoodul Islam, Advocate-on-Record for Respondents Nos.2 to 7. .

22nd November, 1999.

2000 S C M R 991

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

RIAZ-UL-HAQ---Petitioner

versus

MUHAMMAD ASHIQ JORAH, JUDICIAL MAGISTRATE, PIND DADAN KHAN and 2 others---Respondents

Civil Petition for Leave to Appeal No.1944-L of 1999, decided on 2nd

December, 1999.

(On appeal against the order, dated 28-10-1999 of the Lahore High Curt, Lahore in I.C.A. No.581 of 1999).

Penal Code (XLV of 1860)---

----Ss.420, 468 & 471---Alleged transactions had given rise to the institution of criminal as well as civil proceedings and both were pending---Ordinarily criminal proceedings were stayed till the conclusion of the civil proceedings but in view of peculiar circumstances of the case Court directed that trial in criminal charges in the case shall proceed, but the final judgment should not be announced till the conclusion of the civil proceedings.

Muhammad Akbar v. The State and another PLD 1968 SC 281 ref.

Saleem A. Rehman, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Shahid Haniid, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 2nd December, 1999. .

2000 S C M R 993

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed

and Ch.. Muhammad Arif, JJ

MUHAMAMAD AFZAL and another---Petitioners

versus

MUNSHI KHAN and 11th others---Respondents

Civil Petition for Leave to Appeal No. 1855-L of 1999, decided on 28th December, 1999.

(On appeal against the judgment, dated 19-10-1999 of the Lahore High Court, Multan Bench, Multan in Writ Petition No. 1695 of 1994).

Colonization of Government Lands (Punjab) Act (V of 1912)----

:S.19-..Constitution of Pakistan (1973), Art.l85(3)...Ex post facto sanction for alienation of land under S-19, Colonization of Government Lands (Punjab) Act, 1912---Such sanction was drafted by Board of Revenue and subsequently same was withdrawn---High Court in exercise of Constitutional jurisdiction set aside the order of Board of Revenue, whereby the sanction was withdrawn---Leave to appeal was granted by Supreme Court to consider whether Member (Colonies) in Board of Revenue was competent to grant ex post facto sanction for alienation of land under S.19 of Colonization of Government Lands (Punjab) Act, 1912 could the order canceling the sanction be interfered with by High Court in exercise of its Constitutional jurisdiction, what was the effect of condition governing alienation of land in conveyance deed issued in favour of original allottee, and whether sanction under S.19 of Colonization of Government Lands (Punjab) Act, 1912, was necessary to alienate the land; could Additional Commissioner (Revenue) distribute suit land equally between the concerned parties what was effect of the consent decree, which was obtained when no sanction under S.19 of Colonization of Government Lands (Punjab) Act, 1912, held the field, particularly so when the Provincial Government was not a party in suit and could Member, Board of Revenue grant ex post facto sanction under S.19 of Colonization of Government Lands (Punjab) Act, 1912.

Saeed-ur-Rehman Farrukh, Advocate .Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th December, 1999.

2000 S C M R 996

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

COLLECTOR OF CENTRAL EXCISE, LAHORE and others---Petitioners ..

versus

Messrs RIAZ BOTTLERS (PVT.) LTD. and another---Respondents

Civil Petition No. 1781-L of 1999, decided on 23rd November, 1999.

(On appeal from the judgment of Lahore High Court, Lahore, dated 15-9-1999 passed in. Writ Petition 15188/99).

Central Excises Act (I of 1944)---

----Ss.35-B & 36-C---Constitution of Pakistan (1973), Art. 185(3)---Fixation of retail price and its determination for purpose of recovery of taxes--­Question of fact---Failure to exhaust statutory remedies before filing Constitutional petition---Effect---Respondent instead of availing statutory remedies filed Constitutional petition in the High Court and the same was allowed---Contention raised by the petitioner was that the respondent invoked jurisdiction of High Court under Art. 199 of Constitution for seeking decision on question of fact without exhausting statutory remedies available under the Central Excises Act, 1944 and that the order passed by Collector of Central Excise, the subject-matter of the Constitutional petition, was appealable under S.35-B of Central Excises Act, 1944, before Appellate Tribunal and if the respondent even then felt dissatisfied he could approach the High Court under S.36-C of Central Excises Act, 1944---Leave to appeal was granted by Supreme Court to consider contentions raised by petitioner as the same required examination.

M. A. Karim Malik, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd November, 1999,

2000 SCMR 998

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Syed ASIF MAJEED and 5 others---Petitioners

versus

A.D.C.(C)/ASC(L), LAHORE and 15 others---Respondents

Civil Petition for Leave to Appeal No.887-L of 1997, decided on 23rd

November, 1999. -

(On appeal against the order, dated 8-5-1997 of the Lahore High Court, Lahore in Writ Petition No. 128-R of 1995).

(a) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Lathes---Allotment of disputed Khata was made on 25-1-1970 and petitioner invoked the Constitutional jurisdiction after about quarter of century to challenge the same---Validity---High Court had rightly declined to interfere on the ground of laches.

(b) Constitution of Pakistan (1973)---

----Art, 199---Constitutional petition---Maintainability---Factual controversy --- Entire controversy revolved around questions of fact and needed elaborate inquiry including recording of evidence ---Effect--­Resolving of factual controversy could not be undertaken in exercise of Constitutional jurisdiction.

(c) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Lathes, explanation of---Allotment of land was challenged by petitioners in. Constitutional petition, about quarter of century after the allotment---Reasons given by petitioners before High Court for the delay was their remaining abroad, therefore, they could not know as to development of the facts with regard to the allotment---Petitioners explained that they had recently come to know of such development--­Validity---Such explanation did not constitute a plausible explanation to explain lathes.

(d) Constitution of Pakistan (1973)---

---Art.199---Constitutional petition---Assailing allotment of land---Failure to place on record certified copies of disputed Revenue Record---Handwritten copies sent by counsel of petitioners were placed on record---High Court had rightly discarded such copies from consideration and dismissed the Constitutional petition.

Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd November, 1999.

2000 S C M R 1000

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

AKBAR and 2 others---Petitioners

versus

ABDUL GHAFOOR and 3 others---Respondents

Civil Petition No. 1940-L of 1999, decided on 1st December, 1999.

(On appeal from the judgment, dated 16-11-1999 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No..230 of 1997).

Civil Procedure Code (V of 1908)---

----O.XXXIX, R;.1, 2 & S.151---Application for grant of temporary injunction---Non-disclosure of the attending facts and circumstances in relation to an earlier suit relating to the same subject-matter as also claiming the very relief which had been prayed for in the fresh suit---Effect---High Court was justified in refusing to reverse the judgment/order of the Lower Appellate Court wherein the relief was refused.

Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court with Mahmood A. Qure$hi, Advocate-on-Record for Petitioners.

Nemo for Respondents. .

Date of hearing: 1st December, 1999.

2000 S C M R 1002

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MEMBER, BOARD OF REVENUE WITH THE POWERS OF

CHIEF SETTLEMENT COMMISSIONER (SETTLEMENT WING), PARIDKOT HOUSE, LAHORE---Petitioner

versus

Pirzada ABDUL KHALIQ---Respondent

Civil Petition for Leave to Appeal No. 1217-L of 1998, decided on 15th

December, 1999.

(On appeal from the judgment/order, dated 12-6-1998 passed by the Lahore High Court, Lahore in Writ Petition No.71-R of 1998).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of (1975)--

----S.2---Constitution of Pakistan (1973), Art. 185(3)---Point raised for the first time before Supreme Court---Allotment of land to displaced persons after repeal of the evacuee laws---High Court passed judgment on the basis of statement given by Law Officer representing the petitioner---Point as to whether claim of the respondent fell within the ambit of pending proceedings was not .agitated before High Court---Such point could not be allowed to be raised for the first time in Supreme Court---Leave to appeal was refused.

Ch. Mushtaq Masood, Advocate Supreme Court with Sh. Masood Akhtar, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 15th December, 1999.

2000 S C M R 1004

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch: Muhammad Arif, JJ

ASGHAR ALI ---Petitioner

versus

ADMINISTRATOR; TOWN COMMITTE, PIR MAHAL, DISTRICT TOBA TEK SINGH and another---Respondents

Civil Petition NQ. 1338-L of 1997, decided on 21st December, 1999.

(On appeal from the judgment, dated 14-5-1997 passed by Lahore High Court, Lahore in Writ Petition No.955 of 1997).

Constitution of Pakistan (1973)----

----Art.185(3)---Petition for leave to appeal-Petitioner approached the High n Court in Constitutional jurisdiction for his appointment in Town Committee---Constitutional petition was dismissed by High Court on the ground that post had been abolished by the Committee---Supreme Court- on perusal of report filed by Committee declined to interfere with the order of High Court---Leave to appeal was refused.

Ch. Ali Muhammad, Advocate Supreme, Court for Petitioner.

Respondent No.1 in person.

Asghar Mir Baloch, Advocate Supreme Court and M. Yasin, Senior Clerk, Office of D.C., T .T. Singh for Respondent No.2.

Date of hearing: 21st December, 1999.

2000 S C M R 1006

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

Raja MUHAMMAD ASLAM---Petitioner

versus

Raja MUHAMMAD SARWAR and others---Respondents

Civil Petition No. 1630-L of 1997, decided on 14th December, 1999.

(On appeal from the judgment/order, dated 30-9-1997 passed by the Lahore High Court, Lahore, in Writ Petition No. 19778 of 1996).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.10---Constitution of Pakistan (1973), Art. 185(3)---Horse Breeding Scheme---Re-allotment of tenancy---Dispute between two sons of deceased allottee---District Remount Officer recommended the name of respondent for grant of tenancy---Land in dispute was allotted in the name of the respondent and the conclusion was accepted by all the forums including High Court--­High Court had rightly observed that choice of Collector based on recommendations of District Remount Officer could not be demonstrated to be either arbitrary, fanciful or capricious---Leave to appeal was refused.

Subedar Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 ref.

Mirza Masoodur Rehman, Advocate Supreme Court for Petitioner.

Ch. Imdad Ali, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 14th December, 1999.

2000 S C M R 1008

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz

Ahmed and Ch. Muhammad Arif, JJ

GHULAM RASOOL---Petitioner

versus

BASHIR AHMAD and others---Respondents

Civil Petition No. 1768-L of 1999, decided on 23rd November, 1999.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 11-10-1999 passed in Regular First Appeal No. l of 1988).

Constitution of Pakistan (1973)---

----Art. 185(3)---Question of fact---Concurrent findings of two Courts below---Question agitated by petitioner was purely a question of fact which had been concurrently found by the two Courts below against the petitioner---Neither any misreading of evidence was found by the Courts' below nor non-consideration of any material piece of evidence on record was noted---Leave to appeal was refused.

Sh. Naveed Shehryar, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing; 23rd November, 1999,

2000 S C M R 1010

(Supreme Court of Pakistan]

Present; Saiduzzaman Siddiqui, CJ, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

Messrs JAMES CONSTRUCTION COMPANY (PVT.) LIMITED, LAHORE through Executive Director and others---Petitioners

versus

PROVINCE OF THE PUNJAB through Secretary to the Government of the Punjab (Communication and Works) Department, Punjab, Lahore and others---Respondents

Civil Petitions Nos.893-L and 1059-L of 1999, decided on 24th November, 1999.

(On appeal from the common judgment, dated 3-5-1998 passed by the Lahore High Court, Lahore in Civil Revision No. 1915 of 1998).

Arbitration Act (X of 1940)---

----S.20---Stamp Act (11 of 1899), Ss. 12 & 36---Registration Act (XVI of 1908), Ss. 14 & 49---Constitution of Pakistan (1973), Art.185(3)---Award through the intervention of Court---Liability. of stamp duty ---Registration--­Leave to appeal was granted by Supreme Court to examine the contentions that award having come about through the intervention of the Court, same was not liable to stamp duty in terms of S.12, Stamp Act, 1899; that award having been admitted in evidence the result was that under S.36, Stamp Act, 1899 its admission could not be challenged in the suit on the allegation that the same was deficiently stamped; that award coming into existence without the intervention of the Court was compulsorily registrable under S.14, Registration Act, 1908 otherwise same would be an invalid document without creating any right notwithstanding amendment in S.49, Registration Act, 1908 and that there was no authoritative pronouncement by Supreme Court of Pakistan on .the points---Respondent (counsel for the Provincial Government) by not controverting the stand taken by the petitioner contended that case of the Provincial Government to the effect that no person or Authority could be permitted to thrive on his/its ignorance of law certainly revolved around the resolution of the controversy one way or the other

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 and Darshan Singh v. Messrs Forward India Finance (Pvt.) Ltd., New Dehli and others AIR 1984 Delhi 140 ref.

Ghulam Haider Al-Ghazali, Addl. A.-G., Punjab with Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Raja Abdul Razzaq, Advocate-on-Record for Respondents.

Date of hearing: 24th November, 1999.

2000SCMR1013

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MUHAMMAD NASIR MEHMUD and others---Petitioners

versus

Mst. RASHIDAN BIBI---Respondent

Civil Petition for Leave to Appeal No. 1144-L of 1998, decided on 14th December, 1999.

(On appeal from the judgment/order, dated 19-2-1998 passed by the Lahore High Court, Lahore in Civil Revision No.724 of 1992).

Civil Procedure Code (V of 1908)--

----S.115---Constitution of Pakistan (1973), Art.185(3)---Provisional jurisdiction of High Court---Finding of fact---Judgments at variance--­Finding on a question of fact reached in the first appeal on basis of evidence on record was not open to be reversed in revision even if contrary view was possible on the same evidence---Appellate Court had properly appreciated the evidence on record and rightly recorded finding of .fact in favour of respondent---Leave to appeal was refused.

Sh. Abdul Aziz, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent.

Date of hearing: 14th December, 1999.

2000SCMR1017

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Mir NABI BAKHSH KHAN KHOSO---Petitioner

versus

BRANCH MANAGER, NATIONAL BANK OF PAKISTAN, JHATPAT

(DERA ALLAH YAR) BRANCH and 3 others---Respondents

Civil Petition for Leave to Appeal No.1710 of 1999, decided on 15th November, 1999.

(On appeal against the order, dated 11-11-1999 of the High Court of Balochistan, Quetta in C.P. No. 1035 of 1999).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Writ of prohibition---Dispute between parties was regarding notice for recovery of Bank loan issued by the Bank---Petitioner being guarantor in the loan was aggrieved by the notice and approached the High Court for issuance of writ in the nature of prohibition---High Court while dismissing the Constitutional Petition filed by the petitioner had rightly held that writ of prohibition could not be issued because no adverse action had been taken by the Bank against the petitioners except issuance of notices---Stand taken by the petitioner in his reply as well as the representation, which he sent in reply to the notices contained questions which were to be decided by Bank officials---Issuance of writ of prohibition, therefore, was premature, because no adverse action had been taken against the petitioner---Leave to appeal was refused in circumstances.

Muhammad Tufail v. Abdul Ghafoor and another PLD 1998 SC 201 ref.

M. Aslam Chishti, Senior Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 151h November, 1999.

2000SCMR1019

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

GHULAM AHMAD BUTT--Petitioner

versus

MUHAMMAD ILYAS BUTT through Legal Heirs---Respondent

Civil Petition for Leave to Appeal No. 1985-L of 1999, decided on 28th December, 1999.

(On appeal from the judgment of the Lahore High Court, dated 5-11-1999 passed in S.A.O. No. 144 of 1999).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant on the ground of default in monthly rent and bona fide personal need of landlord---Tenant's appeal against the ejectment was dismissed by the Appellate Forum as also his Constitutional petition by High Court--­Concurrent findings of fact had been recorded by the forums below---No misreading or non-reading of evidence available on record was pointed out=-­Substantial justice having been done by the forums below leave to appeal was refused in circumstances.

Sh. Khalil-ur-Rehman, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 28th December, 1999.

2000 S C M R 1021

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Mst. HAJRAN BIBI and another----Petitioners

versus

Mst. MARYAM BIBI and another---Respondents

Civil Petitions Nos.27-L and 28-L of 1999, decided on 22nd November, 1999.

(On appeal from the order, dated 28-10-1998 passed by the Lahore High Court, Lahore in Civil Revisions Nos.680 of 1991 and 679 of 1991).

(a) Muhammadan Law---

-----Gift---Validity---Donor who had no male issue and was absolute owner of the property, in order to provide security to his wife during his lifetime orally gifted the land to his wife and brother-in-law (brother of wife)--­Mutations were attested in presence of the parties duly identified by Lambardar---Patwari had entered the mutations on the statement of the donor---Delivery of possession of land was also incorporated in the mutation which was admitted by the donor---Validity---Oral gift being permissible sunder Muhammadan Law, donor had validly transferred the property to donees through mutations and gifts made by him were perfectly in accordance with law.

(b) West Pakistan Land Revenue Act (XVII of 1967)----

----S.42(7)---Land Records Manual, R.74(1)---Oral gift ---Mutation--­Sanction of---Announcement of gift, acceptance and delivery of possession was complete---Non-presence of donees---Effect.

Rashid Murtaza Qureshi, Advocate Supreme Court with S. Abul Aasim Jafri,. Advocate-on-Record for Petitioners (in both Petitions).

Malik Noor Muhammad Awan, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents (in both Petitions).

Date of hearing: 22nd November, 1999.

2000 S C M .R 1025

[Supreme Court of Pakistan)

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

LAHORE HIGH COURT, LAHORE through Registrar---Petitioner

versus

K.M SOHEL, ADDITIONAL DISTRICT AND SESSIONS

JUDGE and others---Respondents

Civil Petitions Nos.983-L to 989-L of 1999, decided on 21st December, 1999.

(On appeal. from the judgment, dated 21-6-1999 passed by the Punjab Subordinate Judiciary Service Tribunal in the Lahore High Court, Lahore in Appeals Nos.2 of 1998, 3 of 1998, 4 of 1998, 2. of 1999, 3 of, 1999, 4 of 1999 and '5 of 1999).

Constitution of Pakistan (1973)----

----Art.212(3)---Recording of adverse remarks in Annual Confidential Report (A.C.R.) of Subordinate Judicial Officer---Such adverse remarks were recorded in absence of the officer and without affording any opportunity of hearing---Leave to appeal was granted by Supreme Court to consider; whether the adverse remarks recorded beyond the time schedule prescribed by the Government through instructions for recording A.C.Rs. had lost their efficacy in' view of law laid down by Supreme Court; whether the instructions issued by the Government for recording of A.C.Rs. could be varied by High Court keeping in view the exigencies of service of persons of the Subordinate Judiciary to advance the principle of independence of Judiciary; whether Judiciary Service Tribunal was right in holding that affected Judicial Officers should have been afforded a personal hearing in support of their representations and consideration of their representations in absentia by Administrative Committee of the High Court did not conform to the principle of audi alterem partem; and whether the judgment of Service Tribunal was in deviation of law laid down by Supreme Court.

Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587; Kh. Saeedul Hassan, Ex. ­Additional District and Sessions Judge v. Government of the Punjab through the Chief Secretary, Lahore 1994 PLC (C.S.) 113; F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of -N.-W.F.P. and 5 others 1994 SCMR 722 and Shaukat Javed Farooqi, Under Secretary, Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141 ref.

Malik M. Azam Rasool, Advocate .Supreme Court and Rao Muhammad Yusuf, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st December, 1999.

2000 S C M R 1028

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

GOVERNMENT OF BALOCHISTAN, PUBLIC HEALTH ENGINEERING DEPARTMENT through Secretary, (Administrative Head) Project Director, Akra Kour Dam Project, Balochistan, Quetta ---Petitioner

versus

MUHAMMAD 19RAHIM --- Respondent

Civil Petition for Leave to Appeal No.204-Q of 1999, decided on 8th November, 1999.

(On appeal against the judgment/order, dated 30-11-1998 of the High Court of Balochistan, Quetta in R.S.A. No. l of 1998).

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

----S.96---Appeal---Failure to file ,application for condonation of delay--­Non-compliance of. order of Court---Effect---Appeal filed before Lower Appellate Court was time-barred and was not accompanied by application for condonation of delay---Lower Appellate Court directed the appellant to affix court-fee but the order was not complied with despite number of opportunities were provided to the appellant---Appeal before Lower Appellate Court was incompetent and was rightly dismissed as barred by time in circumstances.

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

----S.100---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.185(3)---Second appeal ---Condonation of delay---Delay caused due to negligence of certain Government officials---Effect---Petitioner's second appeal before High Court was barred by one and half years and such delay was attributed to negligence of certain officials---Delay . was not satisfactorily explained for neither details of the negligence on the part of the officials had been disclosed nor it was stated that the officials responsible for negligence had been proceeded against---High Court had rightly dismissed the application seeking condonation of delay as no sufficient cause had been shown to explain the delay---Government being at par with other litigants no preferential treatment could be accorded to it in computing the limitation--­Petitioner had also failed to point out any illegality in the judgment by ­Lower Appellate Court--_-Leave to appeal was refused in circumstances.

Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 8th November, 1999.

2000 S C M R 1030

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI through Chairman and another---Petitioners

versus

SEHR AZMAT and another---Respondents

Civil Petition No. 1750 of 1999, decided on 27th December, 1999.

(On appeal from the judgment dated 29-9-1999 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W.P. No.2016 of 1999).

Educational institution---

---- Allegation of using unfair means by the candidates in the examination--­Principles of natural justice---Non-compliance of---Effect---Penalty of being debarred from four consecutive examinations was imposed on the candidates---Validity---Candidates were neither provided an opportunity of hearing before being debarred nor there was any material available with the Disciplinary Committee of the Education Board to make such an order---Complainant had not stuck to his position of being a genuine complainant/informer regarding the use of unfair means by the candidates---Disciplinary Committee had not even offered the candidates to make statement in defence of the allegations levelled against -them by the Board---Effect---Proceedings before the Disciplinary Committee, though could not be equated with proceedings before a Court/Tribunal requiring examination and cross-examination of witnesses and where strict adherence to the law of evidence was insisted upon yet that did not mean that the Board was possessed of the power or authority to take any action against persons similarly placed as the candidates with affording an opportunity to defend themselves---Board, in circumstances, could not take any action against the candidates without complying with the principles of natural justice.

Ahmad and 3 others v. Vice-Chancellor, University of Engineering and Technology and another PLD 1981 SC 464 and Zafarullah v. Board of Intermediate and Secondary Education, Lahore and others PLD 1981 Lah. 244 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court.and M.A. Zaidi, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 27th December, 1999.

2000 S C M R 1035

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD TUFAIL and 3 others---Petitioners

versus

GHULAM FARID and 4 others---Respondents

Civil Petition for Leave to Appeal No. 1894-L of 1999, decided on 2nd December, 1999.

(On appeal against the order, dated 5-10-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur in Writ Petition No.968 of 1996).

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

----Ss.151, 152 & 153---Rectification of clerical error and amendment/correction in plaint after pronouncement of judgment---Dispute regarding name of village in which suit property was situated---Fact that incorrect name of the village had been written in plaint and the same was mentioned in the decree was discovered after the Trial Court had passed the decrees---Lower Court refused to allow such rectification whereas High Court in Constitutional jurisdiction allowed the amendment/correction of the plaint as of the decree---Validity---High Court rightly placed reliance upon Ss. 151, 152 & 153, C.P.C. under which correction of such clerical error was permissible---High Court had rightly exercised Constitutional jurisdiction in setting aside orders passed by the Courts below and by allowing rectification of mistake.

Sh. Zahoorul Haq, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents. .

Date of hearing: 2nd December, 1999.

2000 S C M R 1038

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Munir A. Sheikh and Rashid Aziz Khan, JJ

BASHIR BEGUM---Appellant

versus

SAFDAR ALI and another---Respondents

Criminal Appeal No.60 of 1995, decided on 28th February, 2000.

(On appeal from the judgment, dated 11-10-1992 in Criminal Appeal No.243 of 1991 and Murder Reference No.219 of 1991 of the Lahore High Court, Lahore), (a) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to the complainant to consider further the grounds upon which High Court had founded the acquittal of accused.

(b) Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal---Out of six accused named in the F.I.R. some were placed in Col. No.2 of the challan, some were acquitted by the Trial Court and one of them i.e., the present accused, although convicted by the Trial Court had been acquitted by the High Court---Parties admittedly had previous ill­-feelings and the injured eye-witnesses were related to the deceased---Intrinsic and probative value of the ocular account stood eroded by its rejection to some extent by the Investigating Agency and to some extent by the Trial Court by acquitting the five accused in the case---Such type of evidence could not be safely relied upon without corroboration from an independent source in view of its interested nature and other indicated flaws therein--­Accused had been rightly given the benefit of doubt by the High Court and no valid justification had been shown for interference by Supreme Court---Appeal against acquittal of accused was dismissed accordingly.

(c) Criminal trial--

---- Benefit of doubt---Benefit of doubt is to be given as of right to the - accused in a criminal case.

Aitzaz Ahsan, Advocate Supreme Court for Appellant. Hamid Khan, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 28th February, 2000.

2000 S C M R 1044

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

TARIQ MEHMOOD---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 2 others---Respondents

Civil Petition No.799 of 1999, decided on 10th November, 1999.

(On appeal from the judgment, dated 1-2-1999 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1862 of 1998).

Punjab Service Tribunals Act (IX of 1974)--

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service of civil servant, a police constable, on the ground of absence from duty without permission---Service Tribunal, while rejecting the appeal of civil servant had observed that Deputy Inspector-General of Police hats noted that civil servant in his service record had earned as many as 55 bad entries against only one good entry; that he was also dismissed on this very charge in the year 1992 but taking a lenient view, he was reinstated; that the D. I.-G. and I.-G. dismissed his appeal and revision observing that his service record was totally disappointing; that order in the case of civil servant was passed on 26-I1-1996 and instead of filing the appeal before Service Tribunal within a period of 30 days, the appeal was filed on 19-10-1998 which was grossly time-barred---Validity---Civil servant was himself to blame for not resorting to the remedy of appeal before Service Tribunal within time--­Beyond pleading that his absence was neither intentional nor deliberate, no serious effort whatsoever was made to explain each day's delay---Overview of service record of civil servant by the D.I.-G. and the I.-G.P. had .not been shown to be without basis---No substantial question of law whatsoever had been made out---Petition for leave to appeal against order of Service Tribunal was dismissed.

Ch. Muhammad Akram, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th November, 1999

2000 S C M R 1046

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Irshad Hasan Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid and Ch. Muhammad Arif, JJ

Mian MUHAMAMD NAWAZ SHARIF and others---Petitioners

versus

MUHAMMAD HABIB WAHAB AL-KHAIRI and others---Respondents

Civil Petitions Nos.690-L, 691-L of 1994 and 1277 of 1997, decided on 1st November, 1999.

(On appeal from the judgments of Lahore High Court, dated 30-5-1994 passed in W.Ps. Nos.435, 455 and 359 of 1993, respectively).

(a) Constitution of Pakistan (1973)--

----Arts. 185(3) & 199---Suo motu jurisdiction of High Court under Art. 199 of the Constitution---High Court took suo motu notice of irregular allotment of certain residential plots and mismanagement of Federal Baitul Mal funds by the then Prime Minister of the country and the Chief Ministers of the Provinces---Suo motu proceedings were converted into Constitutional petitions---Decision of High Court was assailed before Division Bench in Intra-Court Appeals and it was found by the Division Bench that suo motu jurisdiction by the High Court Judge under Art.199 of the Constitution was not available to the High Court (Single Judge), therefore, ,order passed by Single Judge in exercise of suo motu jurisdiction under Art. 199 of the Constitution was without jurisdiction and consequently the entire-proceedings were quashed---Besides suo motu proceedings, there were other private individuals who had challenged action of the Government in so far the allotment of lands was concerned---High Court in Intra-Court Appeal observed that those Constitutional petitions could not have been decided without hearing the petitioners 'as well as other parties who were arrayed in those petitions as respondents---While quashing the orders passed by Single Judge of High Court in exercise of suo motu jurisdiction under Art. 199 of the Constitution, Divisional Bench of High Court directed that the Constitutional petition filed by individuals should be dealt with in accordance with law and disposed of after hearing the parties concerned ---Validity--­Supreme Court declined interference with the order.passed in Intra-Court Appeal by the Division Bench of High Court---Leave to appeal was refused accordingly.

(b) Constitution of Pakistan (1973)---

---Arts.185(3) & 199---Disposal of Constitutional petition by High Court without hearing the parties concerned---Irregular allotments of residential plots by Government---Such allotments were challenged before High Court in Constitutional petition---Single Judge of High Court issued notices to the respondents to show cause and explain the irregularities in allotment of the plots---Single Judge of High Court without hearing the respondents disposed of the petition---Division Bench of the High Court in Intra-Court Appeals was justified in remanding the case to Single Judge for decision after hearing the parties in accordance with law---No case for interference with the judgment of Division Bench of High Court passed in Intra-Court Appeal was made out---Leave to appeal was refused by Supreme Court.

Ch. Muhammad Farooq, Senior Advocate Supreme Court for Petitioner (in C.Ps. Nos.690-L and 691-L of 1994).

Nemo for Respondents. (in C.Ps. Nos. 690-L and 691-L of 1994).

Habib Wahab-ul-Khairi, Advocate Supreme Court for Petitioner (in C.P. No. 1277 of

1.997).

Mansoor Ahmed, Deputy Attorney-General, Ghulam Hyder Al­Ghazali, Additional Advocate-General, Punjab for Respondents. (in C.P. No. 1277 of 1997)..

Date of hearing: 1st November, 1999.

2000 S C M R 1051

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

Mst. SAKINA BIBI---Petitioner

versus

MUHAMMAD NAWAZ and 3 others---Respondents

Civil Petition for Leave to Appeal No.237-L of 1999, decided on 24th November, 1999.

(On appeal against the judgment, dated 7-12-1998 of the Lahore High Court, Lahore in C.R. No.979 of 1998).

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

-----O.XXII, R.4---Death of son of the defendants---Effect of judgment on legal heirs of the deceased defendant---Where the deceased defendant failed to file written statement or did not opt to contest the suit, judgment pronounced against the deceased would have the same force and effect as if it had been pronounced before his death.

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

----O.XXII, R.4---Constitution of Pakistan (1973), Art.185(3)---Failure to join legal proceedings by one of the legal heirs of deceased defendant--­Petitioners who was one of the legal heirs of the deceased defendants and did not join the proceedings at the time of execution of the decree, filed objection petition which was dismissed by the Executing Court---Appeal and revision against said order of the Executing Court were also dismissed by Lower Appellate Court as well as High Court respectively ---Validity--­Where the petitioner had not come forward to be impleaded as a party to the proceedings, provisions of O.XXII, R.4, C.P.C. was fully attracted---If none of the legal heirs had come forward or his reply was not brought on record, the Court would proceed in the suit and pronounce judgment---Leave to appeal was refused.

Ch. Ghulam Rasool Warraich, Advocate Supreme Court and Rana M.A. Qadri, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 24th November, 1999.

2000 S C M R 1053

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

NAZU KHAN---Petitioner

versus

KARAM HUSSAIN KHAN through Legal Heirs---Respondent

Civil Petition for Leave to Appeal No. 1309-L of 1998, decided on 16th December, 1999.

(On appeal from the judgment/order, dated 30-6-1998 passed by the Lahore High Court, Lahore in R.S.A. No.754 of 1977).

Punjab Pre-emption Act (I of 1913)---

----S.30(1)---Suit for possession---Limitation, 'starting point---Period of limitation was to start from the date of attestation of mutation and not from the date when vendee entered into possession of the land.

Ch. Muhammad Hassan, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioner.

M.A. Qureslii, Advocate-on-Record for Respondent.

Date of hearing: 16th December, 1999.

2000 S C M R 1055

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed I and -Ch. Muhammad Arif, JJ

INAYATULLAH KHAN and 7 others---petitioners

versus

Mirza MUHAMMAD ANWAR BEG---Respondent

Civil Petition for Leave to Appeal No.330-L of 1999, decided on 30th December, 1999.

(On appeal against the judgment dated 23-10-1998 of the Lahore High Court, Lahore in R.S.A. No. 164 of 1987)

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art. 185(3)---Specific performance of agreement to sell---Concurrent findings by the Courts below---Crediting of amount in the Bank account of vendor after stipulated period ---Effect---Vendee remained ready and willing to perform his part of contract and did - take steps for performance of obligation by remitting amounts from time to time and also sent notices calling upon the vendors to perform their part of contract---High Court had rightly found that crediting the account of vendors with amount after the stipulated period, did not affect inasmuch as the cheque had been given before the stipulated period and obviously some time was to be taken during the process of the Bank for debit and credit of the account---Concurrent findings arrived at by the Courts below and upheld by High Court were not interfered with--­Leave to appeal was refused.

Hafeez Ahmed, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioners.

Ch. Khurshid Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 30th December, 1999.

2000SCMR1058

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

LALOO and another---Petitioners

versus

GHULAMAN---Respondent

Civil Petition for Leave to Appeal No. 1821-L of 1999, decided on 23rd November, 1999.

(On appeal against the judgment dated 1-10-1999 of the Lahore. High Court, Multan Bench, Multan in C.R. No. 23.9-D of 1998).

(a) Transfer of Property Act (IV of 1882)---

----S.54---Qanun-e-Shahadat (l0~of 1984), Arts. 117, 118, 119 & 120---Oral sale made by an old lady---Proof---Onus to prove---Oral sale executed by old lady having been denied, onus shifted upon the other side.

(b) Limitation Act (IX of 1908)---

----Art. 120---Sale transaction---Limitation---Scope---Sale transaction could be challenged within six years of sale of land, which of course, was the date of knowledge thereof under provisions of Art. 120 of Limitation Act, 1908.

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

----O.XIV, R.5---Framing of additional issue---Assailing of judgment on such score---Validity---Where throughout the proceedings, no request was made for framing of an additional issue, judgment could not be challenged on such score.

Mehr Din v. Dr. Bashir Ahmed Khan and 2 others 1995 SCMR 1 rel.

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

----S.42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration without. consequential relief of possession---Maintainability---Suit land was mortgaged and respondent mortgagor filed suit for declaration without consequential relief of possession---Trial Court decreed the suit whereas appeal and revision filed by the petitioner were dismissed by Lower Appellate Court and High Court respectively---Petitioner raised plea of maintainability of the suit for not having claimed possession as consequential relief-=-Validity---Steps would be taken by the respondent, mortgagor for redemption of the mortgaged land by invoking jurisdiction of Assistant Commissioner under West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964---Leave to appeal was refused.

Ch. Muhammad Arshad Ramay, Advocate Supreme Court and M.A. Qadri; Advocate-on-Record for Petitioners. Nemo for Respondent.

Date of hearing: 23rd November, 1999.

2000 S C M R 1061

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

ABDUL RASHID and another---Petitioners

versus

MUHAMMAD RAMZAN and 4 others---Respondents

Civil Petition for Leave to Appeal No.881-L of 1999, decided on 30th December, 1999.

(On appeal against the judgment dated 10-5-1999 of the Lahore High Court, Lahore in C.R. No. 1790 of 1989).

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Concurrent finding of fact---Jurisdiction of one Civil Court to nullify decree passed by another Civil Court-- -Remedy by way of application under S.12(2), C.P.C.--­Scope---Dispute as to an agreement relied upon by the petitioner, who fraudulently obtained a decree from a Court at place "GA"----Respondent filed a suit at place "GT" where the property subject-matter of the suit was situated and the parties were residing---Suit was decreed concurrently by the Courts below and the earlier decree was set aside---Validity---High Court had rightly arrived at the conclusion that it was a case of patent fraud as the agreement relied upon by the petitioner had not seen the light of the day and the same had not been produced anywhere even in the Court at place "GA"--­Trial Court as well as Lower Appellate Court gave concurrent findings as to the patent fraud having been committed---Conclusion arrived at by the Courts below were not open to exception---Leave to appeal was refused.

Rafiq Javed Butt, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 30th December, 1999.

2000 S C M R 1063

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ., Sh. Riaz Ahmed and Ch. ~Muhammad Arif, JJ

ABDUS SALAM---Petitioner

versus

SIDDIQAN and another---Respondents

Civil Review Petition No. 15-L of 1993, decided on 22nd November, 1999.

(On. review from the judgment of this Court, dated 24-11-1992, passed in C. A. 606 of 1990).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R. l---Review of judgment by Supreme Court-­-Inheritance of a claimant displaced person---High Court dismissed Constitutional petitions filed by both the parties with observations that the inheritance of the claimant would be decided by Rehabilitation Authorities--­Appeal filed against said order of the High Court was partly allowed and disposed of in accordance with statement of the counsel of appellant---Held, there was hardly any scope for seeking review of the order passed by Supreme Court, wherein the Court recorded that the respondents, who were appellants before it, had given up their objections with regard to the validity of the remand order which remained intact and was to be implemented in same terms as found by High Court in its judgment---No case for review of judgment of Supreme Court was made out---Petition was dismissed accordingly.

M. Ismail Qureshi, Senior Advocate Supreme Court and Mian Saeedur Rehman Farrukh, Senior Advocate Supreme Court and S.A. -Aasim Jafri, Advocate-on-Record for Petitioner.

Jariullah Khan, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 22nd November, 1999.

2000 S C M R 1068

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

LAHORE HIGH COURT, LAHORE through Registrar---Petitioner

versus

Mian MUHAMMAD YOUNAS, CIVIL JUDGE 1ST CLASS, FORTABBAS, DISTRICT BAHAWALNAGAR---Respondent

Civil Petitions Nos. 569-L and 570-L of 1999, decided on 21st December, 1999.

(On appeal from the judgments dated 5-3-1999 passed by the Punjab Subordinate Judiciary Service Tribunal in the Lahore High Court, Lahore in Appeals Nos.7/97 and 8/97).

Punjab Subordinate Judiciary Service Tribunal§ Ordinance (II of 1991)---

----S.8---Constitution of Pakistan (1973), Art. 212(3)---Recording of adverse remarks in Annual Confidential Report (A.C.R.) of judicial officer--­Subordinate Judiciary Service Tribunal set aside the remarks recorded in the A.C.R. of the officer---Validity---Leave to appeal was granted by Supreme Court to consider whether it was open to the Tribunal to accept appeal of the officer relating to adverse remarks recorded by Inspection Judge of High Court/Countersigning Officer in the facts and circumstances of the case; whether judgment of Tribunal was in conflict with guidelines laid down by Supreme Court regarding recording of A.C.Rs. or was in conformity with the decisions of Supreme Court and whether decision rendered by Administrative Committee of the High Court comprising of seven Judges including Chief Justice was liable to interference by the Tribunal comprising of three Judges of the same Court.

Inspector-General of Police, Punjab, Lahore and 2 others v. Rana Altaf Majid 1994 SCMR 1348; Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749; Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Chief Secretary, Government of Punjab, Lahore and 2' others v. Muhammad Saeed Zafar 1999 SCMR 1587 and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256 ref.

Malik M. Azim Rasool, Advocate Supreme Court and Rao Muhammad Yusuf Advocate-on-Record for Petitioner.

Mian Fazal Mehmood, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 21st December, 1999.

2000 S C MR 1070'

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

UNIVERSITY OF THE PUNJAB-through Vice-Chancellor, Lahore and another----Petitioners

versus

MUHAMMAD SHAFIQUE and 8 others----Respondents

Civil Petition for Leave to Appeal No. 1305-L of 1999, decided on 22nd November, 1999.

(On appeal against the judgment, dated 3-6-1999 of the Lahore High Court, Lahore in W. P. No. 16882 of 1997).

Medical Council Ordinance (XXXII of 1962)---

----S.33---Pakistan Medical and Dental Council Regulations, 1965, Regln.23(b)---Constitution of Pakistan (1973), Art. 185(3)---Educational institution---Re-evaluation of answer books of candidate---Candidate dissatisfied with result of M.B.,B.S. First Professional Examination declared in March, 1997 invoked Constitutional jurisdiction of High Court for re­evaluation of his answer script of papers---Powers of Vice-Chancellor of the University under Regln. 23(b) of Pakistan Medical and Dental Council Regulations, 1965, to re-evaluate had been deleted and the same was approved by Syndicate on 26-4-1997---High Court, while allowing the Constitutional petition of the candidate found that deletion would not affect merits of the case of the candidate inasmuch as the deletion would be treated to have prospective effect and could not have any retrospective operation being subordinate legislation---Validity---Leave to appeal was granted by Supreme Court to consider legal effect of the deletion of Regln. 23(b) of Pakistan Medical and Dental Council Regulations, 1965 on first professional examination held in March, 1997, result of which was declared after issuance of notification, dated 26-4-1997.

Ch. Muhammad Farooq, Senior Advocate Supreme Court and Rana Maqbool Ahmed Qadri, Advocate-on-Record for Petitioners.

Respondent No. l in person.

Date of hearing: 22nd November, 1999.

2000 S C M R 1072

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

Mirza MUHAMMAD ZULFIQAR and others---Petitioners

versus

THE STATE and others---Respondents

Criminal Petitions for Leave to Appeal No.509 and 592-L of 1999, decided on 13th December, 1999.

(On appeal from the judgment/order, dated 8-9-1999 and 5-11-1999, of the Lahore High Court, Lahore, passed in Criminal Miscellaneous Nos.4561-B of,1999 and 4701-B of 1999, respectively).

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.420/468/471/409/218---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Bail---Anti-Corruption Establishment had shown haste in arresting the accused who were trapped when they appeared in response to. a notice to join the inquiry---Accused were yet to be confronted with the material collected by the Anti-Corruption Establishment against them, but without providing a reasonable opportunity of meeting the charge they were arrested---Assertion made on behalf of accused that they were not directly concerned with the account matters needed consideration---Petitions for leave to appeal were converted into appeals which were allowed and the accused were admitted to bail accordingly.

Sardar Mashkoor Ahmed, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioner (in Cr.P. No.509-L of 1999).

Muhammad Afzal Sandhu, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioner (in Cr.P. No.592-L of 1999).

Aziz Ahmed Chughtai, Advocate Supreme Court for the State.

Date of hearing: 13th December, 1999.

2000 S C M R 1074

[Supreme Court of Pakistan

Present: Sh. Riaz Ahmed arid Ch. Muhammad Arif, JJ

BASHIR AHMED ---Petitioner

versus

AMJAD ALI and 5 others---Respondents

Criminal Petition for Leave to Appeal No.475-L of 1999, decided on 1st December, 1999.

(On appeal. against the order, dated 3-6-1999 of the Lahore High Court, Lahore in Criminal Miscellaneous No.2546-B of 1999).

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.337-F(i)/337-F(iii)/337 H(ii)/448/148/149---Constitution of Pakistan (1973), Art.185(3)--. Cancellation of bail---Allegations of theft and abduction after making preparation having not been substantiated in course of investigation, Ss.365 & 382, P.P.C. had been deleted from the F.I.R. by the Investigating Officer---Injured witness had only received a blunt weapon injury and not any fire-arm injury despite the allegation that five accused armed with fire­arms had resorted to indiscriminate firing at the time of occurrence---High Court in such circumstances had rightly found the case against accused being one of further inquiry---Discretion exercised by High Court was in consonance with the law laid down by the superior Courts to govern the grant of bail---Leave to appeal was accordingly declined by Supreme Court to the complainant.

Hasnat Ahmed Khan, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 1st December, 1999.

2000 S C M R 1076

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Rashid Aziz Khan and Iftikhar Muhammad Chaudhary, JJ

SAID MUHAMMAD KHAN and others ---Appellants.'-

versus

THE STATE---Respondent

Criminal Appeal No.50 of 1995, decided on 10th March, 2000.

(On appeal from the judgment, dated 29-8-1993 of the Peshawar High Court in W.P. No.479 of 1993). .

Criminal Procedure Code (V of 1898)---

----S.382-B---Penal Code (XLV of 1860), Ss.302 & 307---Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (I of 1975), S:3---Provincially Administered Tribal Areas (Nifaz-e-Nizam-e­Shariah) Regulation (II of 1994), S.11---Constitution of Pakistan (1973), Art.247(3)---Availability of benefit of 5.382-B, Cr.P.C. to the accused, determination of---Contention was that Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation No.1 of 1975 having been declared violative of the Constitution by Supreme Court by its judgment reported as PLD 1995 SC 281, S. 382-B, Cr.P.C. was available for the advantage of the accused---Validity---Contention had no force, firstly because said point was not argued before the Original, Appellate or Revisional Forum constituted under the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation No.1 of 1975 and the same could not be legally permitted to be raised for the first time at such a late stage; secondly, the amendment in the Code of Criminal Procedure by which S.382-B was added had not been made applicable to the Provincially Administered Tribal Areas as envisaged by Art. 247(3) of the Constitution, thirdly, Supreme Court in its judgment delivered on 12-2-1.994 reported as PLD 1995 SC 281 had declared that the same would not affect the cases both criminal and civil which had since been disposed of by the Jirga constituted under the said Regulation ---Jirga, in the present case had submitted its award on 27-1-1991 and even the Revisional Court which was the final Court in the hierarchy under the Regulation had given decision in the case on 10-2-1992 concluding the same finally before the date of said decision by the Supreme Court and as such the matter in question was a past and closed transaction--­Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994 (N.-W.F.P. Regulation No. II of 1994) noticed on 14-11-1994 had by its S.11 repealed wi6, effect from 12-2-1994 the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation No. I of 1975 which was the date on which Supreme Court had given its judgment---Section 11 (d) of Regulation II of 1994 had laid down that the repeal of Regulation I of 1975 and Regulation No.II of 1975 would not affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage---Benefit of S.382-B, Cr.P.C., therefore, could not be extended to the accused in circumstances.

Muhammad Irshad and others v. Assistant Commissioner, Swat and others PLD 1990 Pesh. 51 and PLD 1995 SC 281 ref.

Sh. Muhammad Naeem, Advocate Supreme Court and M.A. Qureshi (absent) for Appellants.

Rasheedul Haq Qazi, Additional Advocate-General, N.-W.F.P. for the State.

Ch. Naseer Ahmed, Advocate. Supreme Court and M.A. Zaidi, Advocate-on-Record for the Complainant.

Date of hearing: 14th February, 2000.

2000 S C M R 1080

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

KIFAYATULLAH BANGASH---Petitioner

versus

UMAR GUL----Respondent

Civil Petition No. 1023 of 1999, decided on 12th November, 1999

(On appeal from the judgment, dated 19-4-1999 passed by the Peshawar High Court, Peshawar in F.A.O. No.261 of 1998).

Cantonments Rent Restriction Act (XI of 1963)---

----S.17---Ejectment of tenant was sought on the ground of reconstruction of the premises---Landlord had obtained the requisite sanction for reconstruction from.the Cantonment Board and approved site plan was on record---Tenant contested the application of landlord by submitting written statement after which issues were framed and evidence of the landlord was taken by the Rent Controller---Tenant, despite various opportunities and warnings failed to produce his evidence---Effect---Evidence available on the record was sufficient to prove the bona fides of the landlord for the reconstruction of the premises---Tenant had wilfully avoided to set up his defence before Rent Controller---Rent Controller, in closing evidence of tenant and directing his eviction was justified in circumstances.

Abdul Karim Khan Kundi, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate-on-Record for Petitioner.

Salim Dil Khan, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 12th November, 1999.

2000 S C M R 1083

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD ISHAQ---Petitioner

versus

ABDUL GHANI and 3 others---Respondents

Civil Petition for Leave to Appeal No.1808-L of 1999, decided on 11th November, 1999.

(On appeal against the order, dated 5-10-1999 of the Lahore High Court, Lahore in C.R. No.715 of 1983).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)----

----S.10---Temporary lease---Rights of lessee---Scope---Temporary' lease could be cancelled at any time by Revenue Authorities because lease had not conferred any right or title on the lessee to claim its proprietary rights.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)----

----S.10---Grow More Food Scheme---Proprietary rights of allottees---Grow

More Food Scheme was a scheme of permanent nature and was distinguishable from lease on temporary cultivation basis---Regardless of date of termination of lease, - in view of policy laid down by Board, of Revenue, allottees of Grow More Food Scheme -were eligible to obtain proprietary rights.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss.10 & 36---Constitution of Pakistan (1973), Art. 185(3)---Allotment of land under Grow More Food Scheme---Transfer of proprietary right---Such transfer of right was assailed by the petitioner in civil suit---Trial Court dismissed the suit for lack of jurisdiction in colony matters---Lower Appellate Court and High Court dismissed appeal and revision respectively filed by the petitioner---Validity---Civil Court had no jurisdiction in the matter to adjudicate upon the rights of the parties in view of clear ouster of jurisdiction clause embodied in S.36 of Colonization of Government Lands (Punjab) Act, 1912---Order of restoring allotment in favour of respondent was not open to exception and could not have been challenged in Civil Court because to deal with such matter was the exclusive function of Revenue Authorities under the provisions of Colonization of Government Lands (Punjab) Act, 1912---Leave to appeal was refused.

Amjad Hussain Syed, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th November, 1999.

2000 S C M R 1086

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Wajihuddin Ahmed, JJ

NADEEM BUTT---Petitioner

versus

SPECIAL COURT CONSTITUTED UNDER ANTI-TERRORISM

ACT, 1997 (PRESIDED BY SARDAR MASHKOOR AHMED), CAMP AT DHARAMPURA, LAHORE and another---Respondents

Civil Petition No.513-L of 1998, decided on 13th April, 1999.

(On appeal from the judgment of the Lahore High Court .dated 9-3-1998 passed in W.P. No. 2885 of 1998).

Anti-Terrorism Act (XXVII of 1997)---

----S. \ 23---Jurisdiction of Special Court---Transfer of case from Special Court to a regular Court---Jurisdiction to decide whether a particular case did or did not fall within purview of its jurisdiction lay with the Presiding Judge of Anti-Terrorist Court under the provision of S.23 of Anti-Terrorism Act, 1997---Leave to appeal was refused.

Pakistan Tele-Communication Corporation and another v. Riaz Ahmad and 6 others PLD 1996 SC 222; Ghulam Mustafa Jatoi v. Returning Officer 1994 SCMR 1299 and PLD Mehram Ali's case PLD 1998 SC 1445 ref.

N.A. Butt, Advocate Supreme Court for Petitioner. Nemo for Respondents.

Date of hearing: 13th April, 1999. . .

2000 S C M R 1089

[Supreme Court of Pakistan]

Present: Ajmal, Mtaa, C. J,, Mamoon Kazi

and Ch. Muhammad Arif, JJ

JOINT EXECUTIVE DIRECTOR and others---Appellants

versus

TARIQ AZIZ PIRACHA and others---Respondents

Civil Appeal No.449 of 1997, decided on 28th May, 1999..

(On appeal from the judgment of the Federal Service Tribunal dated 30-7-1996 passed in Appeal No.24-R of 1996).

(a) Civil Servants Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Appeal to Service Tribunal---Misconduct---Substitution of penalty of dismissal from service with that of compulsory retirement by Service Tribunal on appeal--­Validity ---Leave to appeal was granted by Supreme Court to examine the question as to whether Service Tribunal. by substituting the penalty of compulsory retirement had acted within the jurisdiction vesting in it under the law.

(b) Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Misconduct--­Dismissal from service---Substitution of penalty by Service Tribunal in appeal--=Civil servant while on duty had picked up a quarrel with his brother---Senior Officials, who were attracted by commotion caused by the civil servant tried to defuse the situation, but civil servant allegedly insulted the Senior Officials in presence of a large crowd of persons---Civil servant replied the show-cause notice indicating that he had only a quarrel with his brother when the said Senior Officials intervened and admitted the possibility of having done something to annoy them as he did not like involvement of strangers in his family affairs---Effect---When a person was emotionally charged, he would not fully visualize the consequences of his act---Finding of Service Tribunal that even if the civil servant had misbehaved with high officials at the time of quarrel, such mis-behaviour was not intentional, was supported by material on record---Service Tribunal, in circumstances, by substituting the penalty of dismissal from service with that of compulsory retirement . had not exercised its jurisdiction either arbitrarily or capriciously---Supreme Court declined interference in appeal.

Water and Power Development Authority v. Shan Elahi 1998 SCMR 1890; General Manager (Operation), WAPDA v. Javaid Aziz Qureshi 1998 SCMR 2553; Aijaz Nabi Abbasi - v. WAPDA 1992 SCMR 774; WAPDA v. Zahoor Ahmed 1994 SCMR 960; WAPDA v. Shah Amroz 1986 SCMR 840; WAPDA v. Abdul Sattar .1990 SCMR 934; Postmaster General v . Muhammad Zorab 1996 SCMR 280 and WAPDA v. Fida Muhammad Khan 1996 SCMR 639 ref.

M.A. Siddiqui, Advocate Supreme Court acrd Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

M. Zaman Bhatti, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 28th May, 1999.

2000 S C M R 1092

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

ANJUM QISAR BUKHARI and 10 others---Petitioners

versus

CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL

and others---Respondents

Civil Petitions Nos. 1510-L to 1521-L and 1395-L to 1397-L of .1999, decided on 23rd November, 1999.

(On appeal from the judgment of Lahore High Court, Lahore, dated 16-6-1999 passed in Customs Appeals Nos. 36-S to 50-S of 1999).

Customs Act (IV of 1969)---

----Ss. 194-A & 196---Constitution of Pakistan (1973), Art. 185(3)---Rate of import duty on vehicles---Making of observations by Appellate Tribunal and High Court on merits of case while remanding the same for ascertaining the seating capacity of vehicles imported by petitioners---Appellate Tribunal as well as High Court remanded the case to Deputy Collector of Customs for ascertaining seating capacity of the vehicles but at the same time also made observations on the merits of the case which almost decided the controversy---Effect---High Court was not justified for recording categorical conclusion. with regard to - classification of vehicles imported by the petitioner, as the finding had almost foreclosed the question which was remanded by Collector (Appeals) to Deputy Collector of Customs for determination in light of letter of Board of Revenue to Collector Customs--­Petition for leave to appeal was converted into appeal, orders of High Court as well as that of the Appellate Tribunal were set aside---Case was remanded to Deputy Collector of Customs in circumstances.

Syed Ahmad Saeed Kirmani, Advocate Supreme Court and Raja Abdul Razzaque, Advocate-on-Record for Petitioners.

A. Karim Malik, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Respondent No.3. (in all Case).

Date of hearing: 23rd November, 1999.

2000 S C M R 1095

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD ASLAM---Petitioner

versus.

CHIEF ENGINEER, IRRIGATION and others---Respondents

Civil Petitions Nos.871-L and 926-L of 1998, decided on 2nd December, 1999.

(On appeal from the judgment dated 17-4-1998 passed by the Lahore High Court, Lahore in W.Ps. Nos. 16267 of 1996 and 7101 of 1995).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Counsel of petitioners in a number of Constitutional petitions before High Count had conceded to accept the offer of Law Officer appearing on behalf of respondent-Government--­Facility extended to persons similarly placed as the petitioners in the presence of their respective counsel was accepted by all concerned, without any demur and High Court disposed of the Constitutional petitions of the petitioners, with directions as offered and accepted by the counsel of parties--­Petitioners could not take a somersault by a petition for leave to appeal to Supreme Court to change the entire complexion of the concession having been made in all the connected cases by making a direct reference to the proceedings in a particular Constitutional. petition---Plea of the petitioners that respondent-Authorities had made no efforts to do the needful in the matter was repelled with observation that facility to be made available could come about only if the proposed arrangements were furnished strictly in accordance with the observations made by the High Court---Petition for leave to appeal was dismissed in circumstances.

Ch. Muhammad Abdus Saleem, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner, Nemo for Respondents.

Date of hearing: 2nd December, 1999.

2000 S C M R 1097

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

THE STATE/DISTRICT MAGISTRATE, LAHORE---Petitioner

versus

HAMZA SHAHBAZ SHARIF and others---Respondents

Civil Petition No. 679-L of 1999, decided on 31st December, 1999.

(On appeal from the order dated 9-12-1999 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.1862-H/39). -

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan (1973), Art. 185(3)---Detention under S.3, West Pakistan Maintenance of Public Order Ordinance, 1960---High Court , directed Government for production of detained persons in exercise of powers under S.491, Cr.P.C.---Leave to appeal was granted by Supreme Court to consider, whether High Court lacked jurisdiction to order for production of detained persons when an alternate and adequate remedy of filing a representation to Provincial Home Secretary against the order of District Magistrate, was available to respondents; and whether High Court while passing order for production of the detained persons failed to appreciate the law laid down by Supreme Court.

Abdul Qadir v. Lahore Commercial Bank Ltd. and 7 others 1980 SCMR 280; Mst. Aisha v. Manzoor Hussain and others PLD 1985 SC 436; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 3$3; Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others PLD 1973 Kar. 344; Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140 and Syeda Shamim Akhtar v. The -Government of Pakistan and 3 others 1996 PCr.LJ 326 ref.

Maqbool Elahi Malik, Advocate-General, Punjab and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 31st December, 1999.

2000SCMR1100

[Supreme Court of Pakistan]

Present: Raja 4frasiab Khan, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

BASHIR AHMED and 3 others---Petitioners

versus

RAZIA BIBI --- Respondent

Civil Petition for Leave to Appeal No. 1558-L of 1998, decided on 31st December, 1999.

(On appeal against the order dated 17-7-1998 of the Lahore High Court, Lahore in C.R. No. 2855/94).

Constitution of Pakistan (1973)---

----Art.185(3)---Inheritance---Concurrent findings of fact---Respondent was excluded from inheritance of her grandmother on account of respondent's mother being a predeceased daughter---Trial Court decreed the suit and judgment was affirmed by Lower Appellate Court---High Court while dismissing revision filed by the petitioners, had rightly repelled the contention raised on behalf of the petitioners, as the documents with regard to the relationship were admitted in evidence without any objection taken by them---Documents produced by respondents established direct relationship and the same was further proved by the testimony of two witnesses, who were from the motherhood of the predecessor of the parties and had special means of knowledge to depose as to the relationship---Witnesses produced by the petitioners on the other hand were totally strangers to the family and therefore their evidence was rightly discarded by the Courts below---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 31st December, 1999.

2000 S C M R 1102

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

REHMAT JEHAN BEGUM and 9 others---Petitioners

versus

ABDUR RASHID and 2 others---Respondents

Civil Petitions Nos. 1918-L and 1919-L of 1999, decided on 2nd December, 1999.

(On appeal from the judgment dated 20-10-1999 passed by the Lahore High Court, Lahore in Civil Revisions Nos.862 and 863 of 1995).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Leave to appeal was granted by Supreme Court where attending circumstances of the case were akin to those of the cases in which leave had been granted by Supreme Court.

Muhammad Yousaf v. Naseer Ahmed 1996 SCMR 1406; Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105 and Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177 ref.

Khaleeq Ahmad Ansari, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Reccord for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd December, 1999.

2000 S C M R 1103

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

AZIZAN BIBI---Petitioner

versus

NISAR BEGUM---Respondent

Civil Petition No. 1899-L of 1999, decided on 30th November, 1999.

(On appeal from the judgment dated 7-10-1999 passed by the Lahore High Court in Civil Revision No. 1186 of 1991).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Constitution of Pakistan (1973), Art. 185(3)---Transfer of shop--­Petitioner was not a party to the proceedings in a Constitutional petition relating to transfer of a shop wherein High Court had rendered the decision and remanded the case for fresh decision after hearing the parties---Such decision of High Court could not be relied upon for the decision of the controversy involved in the suit by the petitioner as neither the petitioner was a party to the same nor was the shop, the subject-matter of the said lis, was in his possession---Petition for leave to appeal. was dismissed in circumstances.

Sh. Abdul Qayyum, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 30th November, 1999.

2000SCMR1106

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

SHAHID KAMAL---Petitioner

versus

STATE and others---Respondents

Civil Petition for Leave to Appeal No.899-L of. 1998, decided on 29th November, 1999.

(On appeal from the judgment/order dated 31-3-1998 passed by the Punjab Service Tribunal, Lahore in Appeal. No.492/92).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Civil servant absented without leave and provided medical certificate for his period of t absence---Civil servant was allegedly arrested during the period---Civil servant was dismissed from service after departmental inquiry---Plea raised by civil servant for his presence at Karachi during his illness and death of father-in-­law of his brother---Civil servant failed to produce death certificate as demanded by Service Tribunal---Service Tribunal found that charge of absence without leave stood proved against the civil servant, but converted punishment of dismissal into compulsory retirement; =-Validity---No legal question requiring interpretation by Supreme Court arose so as to warrant interference---Leave to appeal was refused.

Ch. Muhammad Abdullah, Advocate Supreme Court and Rana M.A. Qadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th November, 1999.

2000SCMR1108

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

KISHWAR ALAM and others---Petitioners

versus

MEDICAL SUPERINTENDENT and others---Respondents

Civil Petitions Nos.1345-L 1383-L, 1441-L to 1445-L, 1543-L, 1552-L, 1559-L, 1616-L, 1662-L to 1671-L, 1699-L, 1700-L to 1706-L, 1745-L and 1746-L of 1999, decided on 26th November, 1999.

Constitution of Pakistan (1973)---

----Art.212(3)---Recalling of leave granting order orally pronounced--­Another Bench of Supreme Court had declined leave against order of Service Tribunal in similar circumstances on merits---Such fact was not brought to the notice of Supreme Court either by the counsel for petitioners or by Additional Advocate-General---Effect---Supreme Court recalled the leave granting order orally pronounced and directed that the cases might be fixed for re-hearing before the Court according to roster.

Malik Abdus Sattar Chaughtai, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.Ps. Nos.1662-L, 1663-L, 1664-L, 1665-L, 1666-L, 1667-L, 1668-L, 1669-L, 1670-L, 1671-L, 1699-L, 1700-L, 1701-L, 1702-L, 1703-L, 1704-L, 1705-L and 1706-L of 1999).

Malik Abdus Sattar Chaughtai, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.P. Nos.1662-L to 1671-L of 1999).

Ch. Ghulam Qadir, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in C.Ps. Nos.1543-L and 1552-L of 1999).

Farooq Zaman Qureshi, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner (in C.P. No. 1559-L of 1999).

Irshad Ahmed Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in C.P. No.1616-L of 1999).

Ghulam Haider Al-Ghazali, Addl. A.-G., A.H. Masud, Advocate Supreme Court with M. Yousaf Khan, Advocate-on-Record for Respondents (in all Cases).

Date of hearing: 26th November, 1999.

2000SCMR1110

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

ABDUL HALEEM CHAUDHRY---Appellant

versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, IRRIGATION

AND POWER DEPARTMENT, LAHORE---Respondents

Civil Appeal No. 1781 of 1996, decided on 8th November, 1999.

(On appeal from the judgment dated 21-7-1996 passed by the Punjab Service Tribunal, Lahore in Appeal No.686 of 1996).

Punjab Service Tribunals Act (IX of 1974)---

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Correction of age of civil servant recorded in his service book---Civil servant approached the High Court under Art. 199 of the Constitution for his remedy but his petition was dismissed on the ground that since change of date of birth was to affect date of retirement, same was a condition of service end High Court . had no jurisdiction and civil . servant ought to have moved the Service Tribunal---Service Tribunal, in appeal of the civil servant made observation in its judgment to the effect that Tribunal could not proceed in the matter unless Supreme Court directed the Tribunal to. do so---Validity---Such observation of the Service Tribunal was wide off the mark and tantamounted to refuse to exercise jurisdiction vested in it under S.4, Punjab Service Tribunals Act, 1974---Supreme Court remitted back the matter to Service Tribunal for fresh decision on merits uninfluenced by any observation made by the High Court in relation to the case.

Malik Muhammad Azam Rasool, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record (absent) for Appellant.

Respondent: Ex parte.

Date of hearing: 8th November, 1999.

2000 S C M R 1112

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

BASHIR AHMED and 6 others---Petitioners

versus

ALLAH JAWAI and others---Respondents, Civil Petition for Leave to Appeal No.2183-L of 1999, decided on 31st December, 1999.

(On appeal against the judgment dated 15-11-1999 of the Lahore High Court, Lahore in C.R. No. 1275 of 1999).

Constitution of Pakistan (1973)---

----Art. 185(3)---Re-agitating a plea in second round of litigation, which was not proved in the first round of litigation---Concurrent findings of fact by the Courts below---Petitioners failed to prove fraud and misrepresentation in the earlier as well as in the subsequent round of litigation---Petitioners could not re-agitate the plea which they ought to have proved in the first round of litigation---Judgments delivered by Courts below being in accordance with law and no case having been made out for interference by Supreme Court, leave to appeal was refused.

Rana Abdul Majid, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 31st December, 1999.

2000 S C M R 1114

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

KHAWAR MEHMOOD---Petitioner

versus

Sh. MUHAMMAD ASLAM---Respondent

Civil Petition No. 1722 of 1999, decided on 18th November, 1999.

(On appeal from the order dated 2-11-1999 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in F.A.O. No.41 of 1990).

Constitution of Pakistan (1973)---

----Art. 185(3)---Refusal of High Court to extend stay order, already granted in pending appeal---Absence of counsel---Appeal had been pending in High Court since 1990---Petitioner/appellant had engaged three counsel but the matter was lingering---High Court finally on 2-11-1999 refused to adjourn the case as none of counsel of the petitioner/appellant were present and stay against operation of order under appeal was vacated ---Validity--­Petitioner/appellant was himself to blame for not putting forward his case in relation to alleged failure on the part of his outside counsel to appear in High Court on 2-11-1999--=Case had been pending in High Court for last about a decade and petitioner/appellant might make an appropriate move for expeditious early disposal of the matter by High Court--=Leave to appeal was refused.

Sardar Muhammad Ghazi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 18th November, 1999.

2000 S C M R 1117

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

AKHTAR HUSSAIN ---Petitioner

versus

COMMISSIONER, LAHORE DIVISION and another---Respondents

Civil Petition No. 1546-L of 1999, decided on 26th November, 1999.

(On appeal , from the judgment of Punjab Service Tribunal, dated 12-8-1999, passed in Appeal No.481 of 1999).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Grant of leave---Scope-.-Civil servant at the time of appointment suppressed the fact that he was already a dismissed civil servant---Grant of leave was discretionary with Supreme Court and leave under Art. 212 of the Constitution was to be granted only in cases where question of law of public importance arose---Case of civil servant was one of individual grievance and no question of law of public importance arose in the case---Conduct of civil servant in suppressing a material fact at the time of seeking fresh employment in Government disentitled him to seek discretionary relief from the Court---Leave to appeal was refused.

Muhammad Amjad v. Chief Engineer, WAPDA and others 1998 PSC 337 distinguished.

Hafiz Tariq Nasim, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th November, 1999,

2000SCMR1119

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD AFZAL CHADHAR --- Petitioner

versus

THE ZONAL CHIEF, UNITED BANK LIMITED, ZONAL

OFFICE, JHANG and 2 others---Respondents

Civil Petition No.496-L of 1999, decided on 30th November, 1999.

(On appeal from the judgment, dated 8-2-1999 passed by the Lahore High Court in Writ- Petition No..15668 of 1998).

Service Tribunals Act (LXX of 1973)----

----S.2-A---Provision of S.2-A, Service Tribunals Act, 1973 enforced w.e.f. 10-6-1997 being related to procedure would apply to all pending cases.

Divisional Engineer Phones, phones Division Sukkur and another V. Muhammad Shahid and others 1999 PLC (C.S.) 1208 Adnan Afzal v. Captain Sher Afzal PLD 1969 SC 187 and United Bank Limited through President v. Shamim Ahmad Khan and 41 others 1999 PLC (C.S.) 1032 ref.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner. Mian Muhammad Saleem, Advocate Supreme Court for Respondents.

Date of hearing: 30th November, 1999.

2000 S C M R 1122

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

PROVINCE OF PUNJAB through Secretary, Irrigation and Power Department, Lahore and another---Petitioners

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE through

Chairman and another---Respondents

Civil Petitions Nos. 1560-L to 1562-L and 1567-L to 1574-L of 1999, decided November, 1999.

(On appeal from the judgment, dated 13-4-1999 passed by Lahore High Court in Writ Petitions Nos. 19431, 19422, 19428, 19421, 19423 to f9427, 19429 and 1.9430 of 1996).

Industrial Relations Ordinance (XXIII of 1969)-,-

----S.25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4)(c)---Constitution of Pakistan (1973), Art. 185(3)---Work-charged employees---Grievance petition---Maintainability---Respondents being work-charged employees of Irrigation -Department were reinstated in service by Labour Appellate Tribunal--­Contention raised by the petitioner was that the respondents being work ­charged employees could not be ordered to be reinstated in service--­Petitioner further contended that the grievance petitions filed by the respondents were not maintainable in view of S.1(4)(c) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Validity---Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioner as the same required consideration.

Muhammad Anwar Ghuman, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents

Date of hearing: 24th November, 1999.

2000 S C M R 1124

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD SHAFI---Petitioner

versus

ABDUL GHANI through Legal Heirs

and others---Respondents

Civil Petition No. 1505-L of 1999, decided on 31st December, 1999.

(On appeal from the judgment, dated 30-6-1999 passed by the Lahore High Court, Lahore in Civil Revision No. 1476 of 1984).

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

----O.XLI, R.23---Constitution of Pakistan (1973), Art.185(3)---Remanding of case to Trial Court---Factual controversy between the parties---High Court had rightly remanded the case to the Trial Court to proceed to frame and decide the issues as indicated by the High Court in its order---Petitioners failed to point out any error committed by High Court in remanding the case---Leave to appeal was refused.

Ch. Ata Ullah, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 31st December, 1999.

2000 S C M R 1126

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

Mst. SAKINA BIBI---Petitioner

versus

NAZAR and others---Respondents

Civil Petition No.920-L of 1999, decided on 26th November, 1999.

(On appeal from the judgment and decree dated 6-5-1999 passed by the Lahore High Court, Lahore in RSA No.908 of 1978).

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

----S.100---Second appeal---Faith---Determination---First Appellate Court had found as a fact that deceased was not a Shia by faith and evidence produced to the contrary did not come up to the legal standards---Resolution of the question about the faith of a person by First Appellate Court, in circumstances, could not be interfered with under S. 100, C.P.C. in the absence of any misreading or disregard of material evidence on the file.

(b) Muhammadan Law--

----Faith---Determination---Plea was that deceased was a Shia Muslim--­Registration of subscription though had been maintained by the Shia Sect in the village but that was not produced by the party claiming that deceased was Shia which would adversely affect their claims---Claim that deceased was holding "Hazari" of Hazarat Abbas was not substantiated by any witness--­Fact that Jenaza of the deceased was led by a Sunni Muslim though Shia Muslim was available to lead the Jenaza was inexplicable---Finding of the First Appellate Court that deceased was a Sunni Muslim was unexceptionable in circumstances.

(c) Civil Procedure Code (V bf 1908)---

----S.100---Second appeal---Respondent had neither raised the plea that appeal was beyond time nor took such stand in its memorandum of second appeal---High Court was justified to disallow to raise the point of limitation in second appeal.

(d) Limitation---

----Second appeal---Respondent had neither raised the plea that appeal was beyond time nor took such stand in its memorandum of second appeal---High Court was justified to disallow to raise the point of limitation in second appeal.

Ahmed Raza Khan Qasuri, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th November, 1999.

2000SCMR 1135

[Supreme Court of Pakistan]

Present: Irshad Hassan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

SHAHID HUSSAIN ---Petitioner

versus

MUHAMMAD AKRAM---Respondent

Civil Petition for Leave to Appeal No.2108-L of 1999, heard on 21st December, 1999. .

(On appeal from the judgment/order of the Lahore High Court, Multan Bench, dated 25-10-1999 passed in C.R. 622 of 1996).

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

----O.XVII, Rr. 1 & 3---Failure to produce evidence on final date---Closure of evidence---Trial Court; held, had rightly closed the evidence and the order was unexceptionable, in circumstances.

Siddique Gohar v.. Fazal Rehman PLD 1987 Pesh. 24 ref.

(b) Limitation Act (IX of 1908)----

----S.5---Constitution of Pakistan (1973), Art. 185(3)---Appeal dismissed as time-barred ---Condonation of delay---High Court while dismissing revision petition filed by petitioner had found that the petitioner applied for copy of order dated 20-6-1992 on 13-9-1992; copy was delivered to him on the very date but appeal was filed on 1-12-1994 and no explanation whatsoever, for condoning the inordinate delay of more than two years was forthcoming---Order of High Court being right, leave was refused in circumstances.

Rana Abdul Rahim Khan, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 21st December, 1999.

2000SCMR1137

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Muhammad Bashir Jehangiri, Sh. Ijaz Nisar Abdur Rehman Khan, Sh. Riaz Ahmed, Ch. Muhammad Arif, Munir A. Sheikh, Rashid Aziz Khan, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhary, Qazi Muhammad Farooq and Rana Bhagwan Das, JJ

Syed ZAFAR ALI SHAH and others---Petitioner

versus

General PERVEZ MUSHARRAF, CHIEF EXECUTIVE OF

PAKISTAN and others---Respondents

Constitutional Petitions Nos. 62, 63, 53, 57, 66, 64 of 1999 and 3 of 2000, decided on 12th May, 2000.

(Constitution petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973).

(a) Constitution of Pakistan (1973)---

----Art. 2A---Independence of Judiciary---Extent---Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquility, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the superior Courts and it is, therefore, of utmost importance that the Judiciary was independent and no restraints were placed on its performance and operation,--Interpretation of Constitution by superior Courts---Scope and extent.

Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquility, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the superior Courts. It is, therefore, of utmost importance that the judiciary is independent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior Courts exist., they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to adnunister justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system.

(b) Constitution of Pakistan (1973)---

----Arts. 184 & 199---Judicial review by superior Courts---Powers and scope.

Superior Courts have the right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of Supreme Court. Under the mandate of the Constitution, the Courts exercise their jurisdiction as conferred upon them by the Constitution or the law. Therefore, so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the superior Courts to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system.

(c) Interpretation of statutes--

---- Provision seeking to oust the jurisdiction of Supreme Court--­-Interpretation---Power of superior Courts---Scope---Superior Courts have right to interpret the Constitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if -that particular provision is a provision seeking to oust the jurisdiction of Supreme Court.

(d) Constitution of Pakistan (1973)---

----Art. 178---Provisional Constitution Order (1 of 1999), Preamble---Oath of Office of (Judges) Order (1 of 2000), Art.3---Oath of office by Judges of Supreme Court under Provisional Constitution Order, 1999 and Oath of Office of (Judges) Order, 2000---Object and beneficial effects necessitating such oath highlighted.

Fresh oath under Oath of Office (Judges) Order No. l of 2000, does not in any way preclude the Judges of Supreme Court from examining the questions raised in the Constitutional petitions under Article 184(3) of the Constitution of Pakistan (1973), which have to be decided in accordance with their conscience and law so as to resolve the grave crises and avoid disaster by preventing imposition of IMartial Law for which the Constitution does not provide any remedy.

New oath of Office was taken by the Judges of Supreme Court under PCO No. l of 1999 read with Oath of Office (Judges) Order No. l of 2000 with a view to reiterating the well-established principle that the first and the foremost duty of the Judges of the superior Courts is to save the judicial organ of the State. This was exactly what was done. By virtue of PCO No.l of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed Forces through an extra­-Constitutional measure, involves the violation of "some of the rights" protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance. A duty is cast upon the Superior Judiciary to offer some recompense for those rights which were purportedly violated in view of the promulgation of PCO T:,). 1 of 1999. This could be achieved only by taking the Oath and not by declining to do so and thereby becoming a party to the closure of the Courts, which would not have solved any problem whatsoever but would have resulted in chaos, anarchy and disruption of peaceful life. Independence of judiciary does not mean that Judges should quit their jobs and become instrumental in the closure of the Courts. Indeed, the latter course would have been the most detestable thing to happen. Independence of judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience. This Court, while performing its role as "the beneficial expression of a laudable political realism", had three options open to it in relation to the situation arising out of the military take-over on twelfth day of October, 1999, firstly, - it could tender resignation en bloc, which most certainly could be equated with sanctifying (a) chaos/anarchy and (b) denial of access to justice to every citizen of Pakistan wherever he may be; secondly, a complete surrender to the regime by dismissing Constitutional petitions for lack of jurisdiction in view of the purported ouster of its jurisdiction under PCO No., l of 1999 and thirdly, acceptance of the situation as it is, in an attempt to save what "institutional values remained to be saved". Supreme Court, after conscious deliberations and in an endeavour to defend and preserve the national independence, the security and stability of Pakistan, sovereignty and honour of the country and to safeguard the interest of the community as a whole, decided to maintain and uphold the independence of judiciary, which, in its turn, would protect the State fabric and guarantee human rights/Fundamental Rights. It took the Oath under PCO No. l of 1999 so as to secure the enforcement of law, extend help to the law enforcing agencies for maintenance of public order and with a view to restoring democratic institutions, achieving their stability and guaranteeing Constitutional rights to the people of Pakistan.

Oath of Office prescribed under Articles 178 and 194 of the Constitution for the Judges of the superior Courts contains a specific provision that a Judge shall abide by the Code of Conduct issued by the Supreme Judicial Council. Same is the position with regard to the provisions regarding Oath of Office (Judges) Order No.1 of 2000. The precise provisions in the Oath of Office (Judges) Order, 2000 are that a Judge, to whom oath is administered, shall abide by the provisions of Proclamation of Emergency of Fourteenth day of October, 1999, PCO 1 of 1999, as amended, and the Code of Conduct issued by the Supreme Judicial Council. But there is specific omission of words, "to preserve and defend the Constitution". Adherence to the Code of Conduct has not been subjected to any pre-conditions and there can be no deviation from it by a Judge who takes oath either under the Constitution or PCO No.1 of 1999 or Oath of Office (Judges) Order 1 of 2000. One of the requirements of the Code of Conduct is that the oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation. Thus, the new Oath merely indicates that the Superior Judiciary, like the rest of the country, had accepted the fact that on 12th October, 1999, a radical transformation took place.

(e) Provisional Constitution Order (1 of 1999)--

----Preamble---Effect of Provisional Constitution Order, 1999 on the Constitution of Pakistan (1973).

By virtue of PCO No.1 of 1999, the Constitution has not lost its effect in its entirety although its observance as a whole has been interrupted for a transitional period. The activity launched by the Armed Forces through an extra-Constitutional measure, involves the violation of "some of the rights" protected by the Constitution, which still holds the field but some of its provisions have been held in abeyance.

Independence' of judiciary means that the contentious matters, of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience.

(f) Constitution of Pakistan (1973)-

---,Art. 2A---Indenendence of Judiciary means that the contentious matters of whatever magnitude they may be, should be decided/resolved by the Judges of the superior Courts according to their conscience.

(g) Provisional Constitution Order (1 of 1999)--

----Preamble---Oath of Office (Judges) Order (1 of 2000), Preamble--­Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973) before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Maintainability---Notwithstanding anything contained in the Proclamation of Emergency dated 14-10-1999, the Provisional Constitution Order, 1999 [as amended] and the Oath of Office (Judges) Order, 2000, all of which purportedly restrained' Supreme Court from calling in question or permitting to call in question the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right to examine validity of said instruments---Principles---Constitutional petitions before Supreme Court under Art. 184(3) of Constitution of Pakistan (1973) are therefore, maintainable.

Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No.1 of 1999, as amended and the Oath of Office (Judges) Order No. l of 2000, all of which purportedly restrained Supreme Court from calling in question or permitting to call in question the validity of any of the provisions thereof, Supreme Court, in the exercise of its inherent powers of judicial review, has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy, also suggests that Supreme Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the Constitutional petitions. In the exercise of its right to interpret the law, Supreme Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the - jurisdiction of the Courts has been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution petitions under Article 184(3) of the Constitution are, therefore, maintainable.

(h) Provisional Constitution Order (1 of 1999)--

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973),Art.184(3)---Constitutional petition . before Supreme Court under Art. 184(3) of Constitution of Pakistan (1973) calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated, 14-10-1999---State necessity, doctrine of, and salus populi suprema lex, principle of---Applicability---Extra-Constitutional step of taking over the affairs of the country by the Armed Forces---Validity---Supreme Court, while recording in detail the factors for action by Armed Forces validated the same on the basis of the doctrine of State necessity and the principle of salus poptili suprema-lex for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revival of economy before restoration of democratic institutions under the Constitution, in that Constitution offered no solution to the prevailing crisis.

National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a Province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic process in the country, which may cause instability, impair the economic growth and resultantly prove detrimental to the general well-being of the people. However, where the representatives of the people, who are responsible for running the affairs of the State are themselves accused of massive corruption and corrupt practices and in the public as well as private sectors are benefiting therefrom and resist establishing good governance; where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practised by diversified strata including politicians, Parliamentarians, public officials and ordinary citizens and that a number of Parliamentarians and members of the Provincial Assemblies mis-declared their assets before Election Commission and Tax Authorities; where there was no political and economic stability and bank loan defaults were rampant and that as per report of Governor, State Bank of Pakistan Rs.356 billion are payable by the batik defaulters up to 12-10-1999, having no accountability. and transparency; where economic stability in Pakistan was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population; where Pakistan has a debt burden, which equals the country's entire national income; where all the institutions of the State were being systematically destroyed and the economy was in a state of collapse due to self-serving policies of the previous Government, which had threatened the existence, security, economic life, financial stability and credit of Pakistan; where a situation had arisen under which the democratic institutions were not functioning in accordance with the provisions of the Constitution, inasmuch as, the Senate and the National and Provincial Assemblies were closely associated with the former Prime Minister and there was no real democracy because the country was, by and large, under one man rule; where an attempt was .made to politicize the Army, destabilize it and create dissension within its ranks and where the judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous speeches by some of the members of the previous ruling party inside and outside the Parliament and no Reference was made to the Chief Election Commissioner for their disqualification as members of the Parliament under Article 63(2) of the Constitution; where the disparaging remarks against the judiciary crossed all limits with the rendering judgment by this Court in the case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, declaring the establishment of Military Courts as ultra vires of the Constitution, which resulted into a slanderous campaign against the judiciary launched by the former Prime Minister registering his helplessness in the face of the Judiciary not allowing him the establishment of Military Courts as a mode of speedy justice; where the image of the judiciary was tarnished under a well­-conceived design; where the telephones of the Judges of the superior Courts and other personalities were tapped in spite of the law laid down by this Court in the case of Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388, that tapping of telephones and eaves-dropping was immoral, illegal and unconstitutional; where storming of the Supreme Court was resorted to allegedly by some of the leaders and activists of the Pakistan Muslim League which ultimately led to the issuance of contempt notices against them/contemners by the Full Bench of Supreme Court in a pending appeal; where Mian Nawaz Sharif's Constitutional and moral authority stood completely eroded and where situation, was somewhat similar and analogous to the situation that was prevalent in July, 1977, the extra-Constitutional step of taking over the affairs of the country by the Armed Forces for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revive the economy before restoration of democratic institutions under the Constitution, is validated, in that, the Constitution offered no solution to the present crisis.

Probably, the situation could have been avoided if Article 58(2)(b) of the Constitution (1973) had been in the field, which maintained parliamentary form of Government and had provided checks and balances between the powers of the President and the Prime Minister to let the system run without any let or hindrance to forestall the situation in which Martial Law can be imposed. With the repeal of Article 58(2)(b) of the Constitution, there was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, Constitutional deviation made by the Chief of the Army Staff, for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra-Constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the community that order be preserved. Legal recognition/legitimacy can be accorded to the present regime also on the principle that the Government should be by the consent of the governed, whether voters or not. Here there is an implied consent of the governed i.e. the people of Pakistan in general including politicians/parliamentarians, etc. to the army take-over, in that, no protests worth the name or agitations have been launched against the army take-over and/or its continuance. The Court can take judicial notice of the fact that the people of Pakistan have generally welcomed the army take-over due to their avowed intention to initiate the process of across the board and transparent accountability against those, alleged of corruption in every walk of life, of abuse of national wealth and of not taking appropriate measures for stabilizing the economy and democratic institutions. Another principle, which is attracted is that since an extra-Constitutional action has been taken by General Pervez Musharraf wielding effective political power, it is open to the Court to steer a middle course so as to ensure that the framework of the pre-existing Order survives but the Constitutional deviation therefrom be justified on the principle of necessity, rendering lawful what would otherwise be unlawful. However, prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives, which necessitated the military take-over and Proclamation of Emergency as spelt out from the speeches of the Chief Executive, dated 13th and 17th October, 1999. The acceptance of the above principles do not imply abdication from judicial review in the transient suspension of the previous legal order.

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 ref.

(i) Provisional Constitution Order (1 of 1999)--

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Constitution of Pakistan (1973), Arts.184(3) & 199--­Constitutional petition before Supreme Court under Art.184(3), Constitution of Pakistan (1973)---Extra-Constitutional step of taking over the affairs of Pakistan by the Armed Forces---Validity---Powers of superior Courts--­Scope and extent---Situation in the country having arisen for which the Constitution had provided no solution and the intervention by the Armed Forces through an extra-constitutional measure having become inevitable, Supreme Court validated the measures taken by Armed Forces including all past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts which tended to advance or promote the good of the people on the basis of State necessity and the principle of salus populi suprema lex as embodied in Begum Nusrat Bhutto's case reported as PLD 1977 SC 657---Chief Executive of Pakistan having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as indicated by the Supreme Court---Superior .Courts, however, continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity---Powers of superior Courts under Art. 199 of the Constitution of Pakistan (1973), thus, remained available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or Authority acting on his behalf---Courts were not merely to determine whether there existed any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any Authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the touchstone of State necessity but orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts---Rule laid down by Supreme Court for validation of action of Armed Forces on 12-10-1999 detailed.

Following is the verbatim text of rule laid down by Supreme Court while validating the action of Armed Forces of Pakistan on 12th October, 1999:

"We accordingly hold as under:--

1. On 12th October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra-Constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi suprema lex as embodied in Begum Nusrat Bhutto's case. The doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists including Hugo Grotius, Chitty and de Smith and some superior Courts from foreign jurisdiction to fill a political vacuum and bridge the gap.

2. Sufficient corroborative and confirmatory material has been produced by the Federal Government in support of the intervention by the Armed Forces through extra-Constitutional measure. The material consisting of newspaper clippings, writings, etc. in support of the impugned intervention is relevant and has been taken into consideration as admissible material on the basis of which a person of ordinary prudence would conclude that the matters and events narrated therein did occur. The findings recorded herein are confined to the controversies involved in these cases alone.

.3 All past and closed transactions, as well as such executive actions as were required for the orderly running of the State and all acts, which tended to advance or promote the good of the people are also validated.

1. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity.

2. That the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath under the Oath of Office (Judges) Order No. 1 of 2000, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. I of 1999 and other legislative instruments issued by the Chief Executive from time to time.

6.(i) That Chairman, Joint Chiefs of Staff Committee and Chief .of Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he had been described as Chief Executive, having validly assumed power by means of an extra­-Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:--

(a) All acts or legislative measures, which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) All acts which tended to advance or promote the good of the people;

(c) All acts required to be done for the ordinary orderly running of the State; and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

(ii) , That Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was controlled by sub-clauses (b), (c) and (d) in the same clause.

(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of Government blended with Islamic provisions.

(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.

(v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice;

(vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf.

(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

1. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was proclaimed by way of an extra­-Constitutional step' as a follow up of the Army take-over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field.

2. That the validity of the National Accountability Bureau Ordinance, 1999 will be examined separately in appropriate proceedings at appropriate stage.

3. That the cases of learned former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, cannot be re-opened being hit by the doctrine of past and closed transaction.

4. That the Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law.

5. That the Judges of the superior Courts are also subject to accountability in accordance with the methodology laid down in Article 209 of the Constitution.

6. General Pervez Musharraf, Chief of the Army Staff and Chairman Joint Chiefs of Staff Committee is a holder of Constitutional post. His purported arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect.

7. That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order.

8. This is ,not a case where old legal order has been completely suppressed or destroyed, but merely a case of Constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives.

14: That the current electoral rolls are outdated. Fresh elections cannot be held without updating the electoral rolls. The learned Attorney-General states that as per report of the Chief Election Commissioner this process will take two years. Obviously, after preparation of the electoral rolls some time is required for delimitation of constituencies and disposal of objections, etc.

1. That we take judicial notice of the fact that ex=Senator Mr. Sartaj Aziz moved a Constitution Petition No. 15 of 1996, seeking a mandamus to the concerned authorities for preparation of fresh electoral rolls as, according to Mr. Khalid Anwar, through whom, the above, petition was filed, the position to the contrary was tantamount to perpetuating disenfranchisement of millions of people of Pakistan in violation of Articles 17 and 19 of the Constitution. Even MQM also resorted to a similar Constitution Petition bearing No.53 of 1996 seeking the same relief. However, for reasons best known to the petitioners in both the petitions, the same were not pursued any further.

2. That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above, three years' period is allowed to the Chief Executive with effect from the date of the Army take­over i.e. 12th October, 1999 for achieving his declared objectives.

3. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.

4. That this Court has jurisdiction to review/re-examine the continuation of the Proclamation of Emergency dated 12th October, 1999 at any stage if the circumstances so warrant as held by this Court in the case of. Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57."

(j) State necessity, doctrine of---

----Doctrine of State necessity is recognised not only in Islam and other religions of the world but also accepted by the eminent international jurists to fill a political vacuum and bridge the gap.

(k) Maxim:

----Salus populi suprema lex--:-Applicability.

(l) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 . [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Effect of said enactments was that Constitution of Pakistan (1973) still remained the supreme law of the land subject to the condition that certain parts thereof had been held in abeyance on account of State necessity.

(m) Constitution of Pakistan (1973)---

----Arts. 175 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973); Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Judges of superior Courts under Oath of Office (Judges) Order, 2000---Effect---Powers of superior Courts---Superior Courts continued to function under the Constitution of Pakistan (1973)---Mere fact that the Judges of the superior Courts had taken a new oath under the Oath of Office (Judges) Order, 2000 did not in any manner derogate from the said position, as the Courts had been originally established under the Constitution of Pakistan (1973) and had continued their functions in spite of the Proclamation of Emergency by the Chief Executive of Pakistan and Provisional Constitution Order, 1999 and other legislative instruments issued by the Chief Executive from time to time.

(n) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of. Emergency by Chief Executive of Pakistan dated 14-10-1999---Powers of Chief Executive of Pakistan---Scope and extent--­Judicial review of powers of the Chief Executive of Pakistan by superior Courts---Scope---Chief Executive of Pakistan having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as indicated by Supreme Court---Superior Courts, however, continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity---Powers of superior Courts under Art. 199 of the Constitution of Pakistan (1973), thus, remained available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf---Courts were not merely to determine whether there existed any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any Authority or person acting on his behalf, and his declared objectives as spelt out from his speeches dated 13th and 17th October, 1999, on the touchstone of State necessity but orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

The Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he had been described as Chief Executive, having' validly assumed power by means of an extra-­Constitutional step, in the interest of the State and for the welfare of the people, was entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:--

(a) All acts or legislative measures which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) All acts which tended to advance or promote the good of the people;

(c) All acts required to be done for the ordinary orderly running of the State; and

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

(ii) That Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6), sub-clause (i) (a) (ibid) was controlled by sub-clauses (b), (c) and (d) in the same clause. .

(iii) That no amendment shall be made in the salient features of the Constitution Le. independence of judiciary, federalism, parliamentary form of Government blended with Islamic provisions, (iv) That Fundamental Rights provided in Part 11, Chapter I of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.

(v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice;

(vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf.

(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared actives as spelt out from his speeches, dated-13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts.

(o) Provisional Constitution Order (I of 1999)--

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Validation of Proclamation of Emergency dated 14-10-1999 in continuation of Emergency proclaimed on 28-5-1998---Proclamation of Emergency dated 28th May, 1998 issued under Art.232(1) of Constitution of Pakistan (1973) and Proclamation of Emergency dated 14-10-1999 issued by Chief Executive by way of an extra-constitutional step as a follow up of the Army take-over stood validated notwithstanding the continuance of the Emergency proclaimed on 28th May, 1998 still held the field.

(p) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Past and closed transaction, doctrine of---Applicability---Cases of former Chief Justice and Judges of Supreme Court who had not taken oath under the Oath of Office (Judges) Order, 2000 and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, could not be reopened being hit by the doctrine of past and closed transaction.

(q) Constitution of Pakistan (1973)---

----Arts. 209 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Arts.184(3) & 209--­Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as -amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Accountability, process of---Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law---Judges of superior Courts were subject to accountability only in accordance with the methodology laid down in Art.209 of the Constitution of Pakistan (1973).

(r) Constitution of Pakistan (1973)---

----Arts. 243 & 184(3)---Command of Armed Forces---Removal of Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee--­Procedure---Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee being a holder of constitutional post, his arbitrary, removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect.

(s) Provisional Constitution Order (1 of 1999)--

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Validity of extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces by Supreme Court---Effect---Order of Supreme Court validating the extra-constitutional step of taking over the affairs of the country by the Armed Forces and rules laid down in the said order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and orders/laws promulgated by the Chief Executive of Pakistan or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to the present order of validation by the Supreme Court.

(t) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated- 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces---Effect---Effect of action of Armed Forces was not that legal order in the country had been completely suppressed or destroyed, but it was merely a Constitutional deviation for a transitional period so as to enable the Chief Executive of Pakistan to achieve his declared objectives.

(u) Constitution of Pakistan (1973)---

Arts. 224 & 184(3)---Provisional Constitution Order (1 of 1999), Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Arts.184(3) & 222--­Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Elections---Time frame---Current electoral rolls being outdated, fresh elections could not be held without updating the electoral rolls and after preparation of the electoral rolls some time was required for delimitation of constituencies and disposal of objections etc.---Supreme Court, after having regard to all the relevant factors involved allowed three years' period to the Chief Executive of Pakistan with effect from the date of the Army take-over i.e. 12-10-1999 for achieving his declared objectives-­Chief Executive of Pakistan shall appoint a date, not later than 90 days before the expiry of three years, for holding a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.

(v) Provisional Constitution Order (1 of 1999)---

----Preamble---Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Oath of Office (Judges) Order (1 of 2000), Preamble--­Constitution of Pakistan (1973), Preamble and Art.184(3)---Constitutional petition under Art.184(3) of the Constitution of Pakistan (1973), before Supreme Court calling in question the validity of Provisional Constitution Order, 1999 [as amended], Oath of Office (Judges) Order, 2000 and Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999---Jurisdiction to review/re-examine of Supreme Court the continuation of Proclamation of Emergency dated 12-10-1999---Scope--­Supreme Court having validated the extra-Constitutional step of taking-over the affairs of the country by the Armed Forces subject to rules laid down in the validating order had jurisdiction to review/re-examine the continuation of Proclamation of Emergency dated 12-10-1999 at any stage if the circumstances so warrant.

Sardar Farooq Ahmed Khan Leghari v: Federation of Pakistan PLD

1999 SC 57 ref. `

Ch. Muhammad Farooq, Senior Advocate Supreme Court and S Abul Aasim Jafri, Advocate-on-Record for Petitioner . (in C. P. No. 62 of 1999)

Khlid Anwar, Senior Advocate Supreme Court, M. Rafique Supreme Court,, Umar Bandial, Advocate Supreme Court, Ms. Saadia Abbasi, Advocate and S. Abul Aasim Jafri, Advocate-on­-Record for Petitioners (in C.P. No. 63 of 1999).

Habibul Wahabul Khairi, Advocate Supreme Court for Petitioner (in C.P. No. 53 of 1999).

Petitioner in person (in C. P. No. 57 of 1999).

Fazal Illahi Siddiqui, Advocate Supreme Court for Petitioner (in C.P, No. 3 of 2000).

Petitioner in person (in C.P. No. 66 of 1999). Petitioner in person (in C.P. No. 64 of 1999).

Aziz A. Munshi, Attorney-General for Pakistan, Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Tanvir Bashir Ansari, Deputy Attorney-General, Mansur Ahmad, Deputy Attorney-General, S.A Mannan, Advocate Supreme Court, Sh. Maqbool Ahmad, Advocate Supreme Court, Ch. Bashir Ahmad, Advocate Supreme Court, Ch. Fazle Hussain, Advocate­on-Record, Mehr Khan Malik Advocate-on-Record and Waqar Rana, Advocate for Respondent (Federation):

M. Ashraf Khan Tanoli, Advocate-General, Balochistan, M. Younis Khan Tanoli, Advocate-General, N.-W.F.P., 'Maqbool Itlahi Malik, Advocate-General, Punjab; Nasim Sabir, Additional Advocate-General, Punjab, Tariq Mahmood Khokhar, Additional Advocate-General, Punjab, Rao M. Yousuf Khan, Advocate-on-Record, Raja Qureshi, Advocate-­General, Sindh, Abdul Haleem Pirzada, President Supreme Court Bar Association, Kadir Bakhsh Bhutto, Vice-Chairman, Pakistan Bar Council and Dr. Farooq Hassan for President, Lahore High Court Bar Association (on Court's Notice).

S.M.Zafar, Senior Advocate Supreme Court assisted by Syed Ali Zafar, Advocate Supreme Court, Haider Zaman Qureshi and Raja Zafar Khalid, Advocates: Amicus curiae.

Dates of hearing: 1st November, 6th December, 1999; 31st January, 1st to 3rd March; 6th to 10th, 13th, 14th, 22nd, 24th March; 1st to 5th and 8th to 12th May, 2000.

2000SCMR1166

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rashid Aziz Khan, JJ

Mst. PROMILLA and others---Petitioners

versus

SAFEER ALAM and others ---Respondents

Criminal Petition for Special Leave to Appeal No. 265 of 1999 and 5 of 2000, decided on 29th February, 2000.

(On appeals from the judgment dated 7-12-1999 of Lahore High Court, Rawalpindi Bench, passed in Criminal Appeal No. 17 of 1996 and Murder Reference No.238 of 1996).

(a) Penal Code (XLV of 1860)---

----S.302(c)---Constitution of Pakistan (1973), Art. 185(3)---Rifle of the accused being loaded had belied his plea that he had taken it to scare the complainant party and the same had been rightly disbelieved by the High Court-=-Complainant party had gone to the house of accused to lodge their protest which led to an altercation between the parties and the accused being infuriated had fired upon the deceased---No enmity existed between the parties and the accused had no prior intention to cause an injury to the complainant party---Dialogues then exchanged by the parties were not disclosed and what preceded immediately before the actual occurrence had remained shrouded in mystery---Offence of Qatl-i-Amd having not been made out, accused had been rightly convicted under S. 302(c), P.P.C.--­Sentence of 14 years' R.I awarded to accused by High Court having been served out by him, death sentence for the same offence could not be now awarded to him---Even otherwise, sentence of 14 years' R.I. awarded to accused was appropriate under the circumstances---Leave to appeal was declined by Supreme Court accordingly.

Shaheb Ali v. The State PLD 1970 SC 447; Muhammad Rafiq v. The State 1971 SCMR 378; Ghulam Muhammad v. The State 1972 SCMR 393; Ameer Umar v. The State 1976 SCMR 338; Muhammad Jamal v. The State 1997 SCMR 1595 and Muhammad Shafique and others v. Akhtar shah and others 1997 SCMR 1964 ref.

(b) Penal Code (XLV of 1860)---

----S.302---Sentence, assessment of---Assessment of appropriate sentence primarily is the function of Trial Court and the Court acting in appeal or revision and Supreme Court as a rule will be slow in interfering with such sentence unless the same is shown to be illegal or contrary to the principles laid down by Supreme Court.

Shaheb Ali v. The State PLD 1970 SC 447; Muhammad Rafiq v. The State 1971 SCMR 378; Ghulam Muhammad v. The State 1972 SCMR 393; Ameer Umar v. The State 1976 SCMR 338; Muhammad Jamal v. The State 1997 SCMR 1595 and Muhammad Shafique and others v. Akhtar Shah and others. 1997 SCMR 1964 ref.

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Cr.P.S.L.A. No.265 of 1999).

Malik Muhammad Nawaz Khan and Ch. Akhtar Ali, Advocate-on-­Record for Respondent No.1 (in Cr.P.S.L.A. No. 265 of 1999) and for Petitioner (in Cr.P.S.L.A. No.5 of 2000).

Date of hearing; 29th February, 2000.

2000 S C M. R 1172

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Rana Bhagwan Das,,JJ

PROVINCE OF PUNJAB through Chief Secretary , and 5 others---Petitioners

versus

Malik IBRAHIM AND SONS and another---Respondents

Civil Petition for Leave to Appeal No.1013-L of 1999, decided on 30th March, 2000.

(On appeal from the judgment of Lahore High Court Lahore, dated 17-2-1999 passed in R. F. A. No. 149 of 1994). '

(a) Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Questions of fact and law having not been raised before Trial Court, appellant was estopped from raising such mixed questions of fact and law before Supreme Court at such belated stage.

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

----S 42---Partnership Act (IX of 1932), S. 69---Suit . for recovery--­Competence---Non-registration of partnership---Effect---Plaintiff in the suit was a partnership concern---Defendants in their written statement had not raised the issue as to lack of registration of plaintiff's partnership firm under Partnership Act, 1932---Effect---Plaintiffs were not obliged to submit a certificate of registration or to make any statement on such aspect notwithstanding an averment in an earlier Constitutional petition---Recovery suit filed in the name of firm was not incompetent for alleged lack of registration of firm as there was no occasion for plaintiffs to establish registration of the firm or to rebut the allegation of its non-registration.

Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550 and Province of Sindh v. -Royal Contractors 1996 CLC 1205 distinguished.

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

----O.XIV, R.1 (5) & O.XVIII, R.2---Pleadings---Issues---Parties are not entitled to set up a case or to lead evidence on issues which do not arise from their ~ pleadings---Parties are legally bound by their pleadings and thus evidence must be restricted to the points in controversy stricto senso.

Iftikhar Hussain Khan of Mamdot .v. Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 and Province of Sindh v. Royal-Contractors 1996 CLC 1205 distinguished.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court--Scope---High Court, ordinarily does not embark upon a detailed inquiry into question of fact arising out of contractual obligations between the parties.

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

----S.11---Res judicata, principles of---Conditions to be complied with to attract principles of res judicata enumerated.

In order to attract the principles of res judicata following five conditions must be complied with:--

(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

(2) The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim.

(3) The parties as aforesaid must have litigated under the same title in the former suit.

(4) The Court which decided the former suit must have been a Court competent to try the' subsequent suit in which such issue is subsequently raised.

(5) The matter directly and substantially in issue in the subsequent suit and finally decided by the Court in the first suit.

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

----S.11---Constitution of Pakistan (1973), Art. 199---Res judicata, principles of---Applicability---Scope---Contractual obligation--­Constitutional petition in the earlier round of litigation tended to indicate that the petitioner had essentially impugned the decisions laying down different yardsticks for the payment of bills in the petition whereas in the subsequent suit a definite amount on account of the services rendered and goods supplied as per the terms and conditions of the contract complaining breach of the agreement---Subsequent suit filed before the Civil Court could not have been filed before the High Court as the said High Court did not try suits of civil nature on original side while disputed questions of fact could not be inquired into in the exercise of Constitutional jurisdiction---Matter in both the proceedings being distinct and different, principle of res judicata was also not attracted for the reason that subsequent suit could not be competently heard and decided by the concerned High Court---Civil Court being a Court of general and ultimate jurisdiction to try all suits of civil nature excepting suits of which their cognizance was either expressly or impliedly barred, claim of plaintiff/petitioner to file suit was neither barred by law nor hit by the provisions of S. 11, C.P.C. in circumstances.

Abdul Majid v. Abdul Ghafoor Khan PLD 1982 SC 146 and Asif Jab Siddiqi v. Government of Sindh PLD 1983 SC 46 distinguished.

M. Mohyuddin Qazi, Advocate Supreme Court and Ch. Tanvir Ahmad, Advocate-on-Record for Petitioners.

Jehangir A. Jhoja, Advocate Supreme Court and Ch. Mehdi Khan Meht b, Advocate-on-Record (absent) for Respondents. , Date of hearing: 30th March, 2000.

2000SCMR1179

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ

RASHAD NAZIR---Petitioner

versus

THE STATE and 3 others---Respondents

Civil Petition for Leave to Appeal No. 1038 of 1999, decided on 13th July, 1999.

(On appeal against the order dated 7-6-1999 of the Lahore High Court, Rawalpindi Bench in W. P. No. 1306 of 1999).

Penal Code (XLV of 1860)---

----S. 342/365/506/452---Constitution of Pakistan (1973), Art. 185(3)--­Alleged victim, who was sui juris, had stated that she- had entered into contract of marriage with the man of her own free will but against the wishes of her parents.---Parents of alleged victim in retaliation had- got a case registered under 5.342/365/506/452, P.P.C. against the man and his relatives---Alleged victim filed Constitutional petition before High Court alleging that she had not been abducted and the allegations in the F.I.R. against her husband and his mother and others were baseless because she had on her own and without coercion entered into contract of marriage with the man---High Court ordered that during the pendency of Constitutional petition filed by the alleged victim, she be lodged in Darul Aman---Leave to appeal was granted by Supreme Court to consider as to whether a sui juris could be directed to live in Darul Aman against her wishes---Supreme Court directed that no further action shall be taken in pursuance of the F.I.R._ registered against the man and her relatives and suspended the operation of its, orders whereby direction was given that girl be sent to the house of her parents in case of reconciliation and also the order whereby it was observed by Supreme Court that in case reconciliation took place, the F.I.R. should be cancelled.

Kh. Muhammad Farooq, Advocate Supreme Court for Petitioner.

Raja Muhammad Bashir, Advocate Supreme Court for Respondent No.3.

Ashtar Ausaf Ali, A.-G. for the State.

Date of hearing: 13th July, 1999.

2000SCMR1181

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

RIAZ AHMED and others---Petitioners

versus

GOVERNMENT OF PAKISTAN and others---Respondents

Civil Petition for Leave to Appeal No.696-K of 1999, decided on 15th March, 2000:

(On appeal from the judgment of Sindh High Court dated 4-11-1999 passed in C.P. No.1724/99).

Licence and licensee---

---- Notice to vending stall holders, at railway station from the Railways Authorities intimating that public auction of the vending stalls was to be held on a specified date---Validity of notice---Status of the vending stall holders was no better than licensees as admittedly there was no agreement of tenancy between any of the stall holders and the Authority----1f the Authority in the larger interest had decided to do away with the practice of renewal of existing licences in favour of stall holders, no lawful exception could be taken to the course of action adopted by the Authority---Existing stall holders had no vested right of holding perpetual licence to carry on their business without the participation of any one else---Such licences, in law were always revocable after reasonable notice and in due process of law.

Shaukat Hayat v: Government of Pakistan through Pakistan Railways PLD 1997 SC 342 fol.

Khawaja Sharful Islam, Advocate for Petitioner. Nemo for Respondents.

Date of hearing: 15th March, 2000.

2000 S C M R 1183

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

MUHAMMAD YOUSAF MA LIK---Petitioner

versus

WATER & POWER DEVELOPMENT AUTHORITY through

Chairman, WAPDA---Respondent

Civil Petition for Leave to Appeal No. 1193-L ,of 1997, decided on 22th December, 1999.

(On appeal from the judgment/order of Federal Service Tribunal, Lahore dated 17-6-1997 passed in Appeal No. 92 (L) of 1997).

Constitution of Pakistan (1973)---

----Art. 212(3)=--Terms and conditions of service---Dispute was with regard to payment of increase in house rent to .civil servant by WAPDA---Service Tribunal found that the increase would be applicable after expiry of existing lease deed---Supreme Court directed WAPDA to pay enhanced rent to the - petitioner from the date on which the payment of such increase in the rent became due within three weeks under intimation to the' Registrar of the Court.

Petitioner in person.

Muhammad Sharif, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents Nos. l and 2.

2000 S C M R 1184

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD HASSAN and another---Appellants

versus

EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF

PAKISTAN---Respondent

Civil Appeal No. 732 of 1994, decided on 29th October, 1999.

(On appeal from the judgment dated 10-11-1992 passed by the Lahore High Court, Lahore in Settlement Appeal No. 43 of 1968).

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S.10(2)---Constitution of Pakistan (1973), Art. 185(3)---Contention of the petitioners was that since P.T.D. in respect of the suit property was issued in their favour prior to June, 1968, transfer order was validated by virtue of S.10(2) of the Evacuee Trust Properties (Management and-Disposal) Act, 1975 and that the Evacuee Trust Board was entitled to receive the price of the suit house and that though the High Court had referred to S. 10 (2) of the Act but instead of directing the Evacuee Trust Board to act in terms of S.10(2) of the Act, had directed the petitioner to approach the Evacuee Trust Board---Leave to appeal was granted by Supreme Court to consider as to whether the direction of High Court to the petitioner to approach the Evacuee Trust Board was warranted by S.10(2) of the Act or the High Court should have passed, the order for the payment of price by the Settlement Department to the Evacuee Trust Board.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S.4(2)---Certain portion of the evacuee trust property (an educational institution) had been rented out by the Institution even to private persons from whom the said institution had been charging the rent---Taxation Department, on account of the reason that the institution was deriving financial benefits/income had assessed the property for the purpose of property tax---Such facts, held, would not detract from the validity of general declaration made under S.4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 that such a property nevertheless would not form part of compensation pool on account of its having been attached to educational institution.

Muhammad Hussain Awan, Advocate Supreme Court and S. Abul Aasim Jaferi, Advocate.-on-Record (absent) for Appellants.

Ch. Fazal-i-Hussain, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate-on-Record (absent) Tor Respondent No. 1. .

Respondents Nos.2 to 18: Ex parte.

Date of hearing: 29th October, 1999.

2000 S C M R 1190

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed and

Ch. Muhammad Arif, JJ

EJAZ HUSSAIN ---Petitioner

versus

BASHIR AHMAD and others---Respondents

Civil Petition for Leave to Appeal No. 1902-L of 1999, decided on 28th December, 1999.

(On appeal from the judgment/order of the Lahore High Court dated 16-11-1999 passed in C.R. 1795 of 1999).

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

----S. 47---Objection to execution of decree---Question to be determined by Executing Court---Dispute was with regard to demarcation of Khasra number---Suit filed by predecessor-in-interest of respondent was decreed and the same attained finality---Petitioner filed two suits which were dismissed and then application under S. 47, C.P.C. was filed before the Executing Court on the ground of demarcation of disputed Khasra number---All the three Courts below dismissed the application of the petitioner ---Validity--­Application of the petitioner was misconceived for record showed that two earlier suits on same cause had been dismissed and application under S.47, C.P.C. was not tenable in the eyes of law---Demarcation of Khasra number being not within the purview of S.47, C.P.C. Courts below had rightly dismissed the application of the petitioner as the same was misconceived.

(b) Civil Procedure Code (Y of 1908)---

----Ss. 11 & 47---PrinAple of res judicata---Litigation between the parties was concluded by the Competent Court---Petitioner filed application under S.47, C.P.C. before Executing Court involving the same matter---Earlier litigation between the parties having concluded by competent Court after hearing the parties, principles of res judicata were attracted to the case.

-Sh. Khalil-ur-Rehman, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th December, 1999.

2000 S C M R 1192

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

PROVINCE OF PUNJAB through Secretary Food, Government of Punjab, Lahore and others--Petitioner's

versus

IBRAR FLOUR MILLS (PVT.) LTD. through

Chief Executive---Respondent

Civil Petition for Leave to Appeal No.856-L of 1998, decided on 30th November, 1999.

(On appeal from the judgment/order dated 25-11-1997 passed by the Lahore High Court, Lahore in I.C.A. No. 10 of 1997).

Constitution of Pakistan (1973)---

----Art. 185(3)---Deduction or recovery of wheat quota of flour Mill already consumed---Provincial Government was restrained by High Court from deducting or recovering such quota already consumed from the Mill--­Validity---Transaction which was past and closed, could not. have been re­opened after consumption of special quota of wheat issued to the Mill--­Leave to appeal was refused in circumstances.

Muhammad Sharif Butt, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent:

Date of hearing: 30th November, 1999.

2000 S C M R 1194

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

THE PROVINCE OF PUNJAB through Secretary, Health

Department, Lahore and others---Appellants

versus

Dr, ROOHI MANZOOR KHAN and others---Respondents.

Civil Appeals Nos.9 and 69 of 1999, decided on 17th November, 1999.

(On appeal from the 'judgment dated 27-2-1998 of the Punjab Service Tribunal, Lahore; passed in Appeal No.384 of 1996).

Civil service---

----Promotion---Eligibility---Equivalence of foreign qualifications with local qualifications---Civil servant was senior to the rival civil servant and held a foreign degree while the rival civil servant was holding local degree--­Department constituted an Equivalence Committee to determine the equivalence of foreign qualifications and said Committee opined that degree from foreign University was not equivalent to that of local University but was comparatively inferior to the local degree---Validity---Civil servant being eligible to be considered for promotion in accordance with the current discipline in vogue which had the support of law and/or rules on the subject---Alleged non-recognition of the foreign qualifications of civil servant, in the absence of any direction emanating from Government/Selection Board in that behalf, could not be equated with the exclusion from the normal process of promotion.

Ghulam Haider Al-Ghazali, Additional Advocate-General with Rao Muhammad Yousaf Khan, Advocate-on-Record for Petitioners (in C.A. No.9 of 1999).

Mian Fazle Mehmood Fazli, Senior Advocate Supreme Court with Mehmoodul Islam, Advocate-on-Record for Respondent No. l (in C.A. No.9 of 1999).

Respondent No.2: Ex parte (in C.A. No.9 of 1999).

K.M.A. Samdani, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in C.A. No.69 of 1999).

Hafiz Tariq Nasim, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No. l (in C. A. No. 69 of 1999).

Respondents Nos.2 and 3: Ex part (in C.A. No. 69 of 1999).

Date of hearing: 17th November, 1999.

2000 S C M R 1197

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C: J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

Mian ABDUL RAHIM SETHI and others---Appellants

versus

FEDERATION OF PAKISTAN through Minister of

Defence and another---Respondents

Civil Appeals Nos. 375 to 377, 379 and 887-L of 1993; decided on 7th December, 1999.

(On appeal from the judgment of Lahore High Court, Lahore dated 5-12-1992, passed in R.F.As. Nos.99, 95, 94, 96 and 101 of 1989 respectively).

Limitation Act (IX of 1908)---

----S.5---Constitution of Pakistan (1973), Art. 185---Time-barred appeal--­Condonation of delay---Application for condonation of delay contained grounds of general nature without giving explanation for delay of each day which was sought to be condoned in filing the appeal---Appellant relied on medical certificate according to which the appellant had undergone open heart surgery but the appellant had not disclosed as to what happened between the period from the date of operation till filing of the appeal in Supreme Court---No ground for condonation of delay having been made out, appeal was dismissed as time-barred, in circumstances.

Khawaja M. Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants.

Respondent: Ex parte.

Manzoor Ahmed, Deputy Attorney-General (on Court's Notice).

Date of hearing: 7th December, 1999.

2000 S C M R 1200

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

QAMAR-UD-DIN KHAN---Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment

Division, Islamabad---Respondent

Civil Petition for Leave to Appeal No. 1815-L of 1999, decided on 2nd December, 1999.

(On appeal against the order dated 25-1-1999 of the Federal Service Tribunal, Islamabad in Appeal No. 261(L) of 1998). -

Government Servants (Efficiency and Discipline) Rules, 1973---

----R.4---Constitution of Pakistan (1973), Art. 212(3)-=-Dismissal from service on charge of misconduct and corruption---Leave to appeal was granted by Supreme Court to consider question that out of 30 years of service, civil servant having remained suspended for more than six and half years and remained posted for nearly seven years finding of charge of corruption needed re-appraisal; that whether civil servant was politically victimized; that whether inquiry in the case was impartial; and whether sufficient evidence existed on record to connect the civil servant with charges framed against him.

Dr. A. Basit, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd December, 1999.

2000 S C M R 1202

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

AHMED YAR QADRI, ADVOCATE and others---Petitioners

versus

MUHAMMAD ANWAR JOYA---Respondent

Civil Petition No.924-L of 1998, decided on 2nd December, 1999.

(On appeal from the judgment dated 19-3-1998 passed by the Lahore High Court, Lahore in Civil Revision No.525-D of 1992).

Civil Procedure Code (V of 1908)---

----S.115---Revision---Sale-deed---Trial Court, by taking into consideration the circumstances and entire evidence on record had found that sale-deed in question was nullity in 'law and was without any lawful authority and the same was incorporative against the rights of the petitioners---First Appellate Court, on appeal, ignored the evidence on record, failed to consider the reasons recorded by Trial Court and by misreading the evidence, banking upon inadmissible and irrelevant considerations and on illegal assumption, reversed the findings of Trial Court---Validity---Findings recorded by First Appellate Court, suffered from perversity of reasoning and being contrary to law, could not sustain---High Court, in circumstances, was possessed of the requisite jurisdiction to reverse the judgment of Lower Appellate Court in exercise of its jurisdiction under S.115, C.P.C.

Sardar Shaukat Ali, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Petitioners.

Rana Abdul Majeed, Advocate Supreme Court and Abul Aasim Jafri, Advocate-on-Record for Respondent.

Date of hering: 2nd December, 1999

2000 S C M R 1206

[Supreme Court of Pakistan]

Present: Ajmal Mian, CJ., MunawarAhmed Mirza

and Ch. Muhammad Arif, JJ

AHMAD YAR and others---Appellants

versus

MUHAMMAD ARSHAD and others---Respondents

Civil Petitions Nos. 1837-L to 1844-L of 1998, decided on 5th January, 1999.

(On appeal from the judgment dated 23-9-1998 of the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.98-D/98/BWP, 99-D/98/BWP, 107-D/98/BWP, 108-D/BWP, 109-D/98/BWP, 110­D/98/BWP, 126-D/98/BWP and 127-D/98/BWP).

Limitation Act (IX of 1908)---

----Art. 142---Constitution of Pakistan (1973), Art. 185(3)---Adverse possession, plea of---Concurrent findings of Courts below---Dispute with regard to possession of suit property---Petitioners had no title in the property and were having possession only on the basis of adverse possession--­Validity---All the three Courts below had found that respondents were owners of the suit property and concurrent findings seemed to be in accordance with law---Petitioners did not even suggest in cross-examination to the respondents witnesses that the respondents were not owners of the suit property---High Court had rightly pointed out in the order that petitioners had been raising inconsistent pleas ---Petitioners had no title whatsoever to the suit property---Petitioners having been inducted by respondents could not have raised the plea of adverse possession---Order of High Court being in consonance with law, leave to appeal was refused.

1995 CLC 403.; 1995 CLC 136 and 1991 SCMR 2063 ref.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respond.

Date of hearing: 5th January, 1999.

2000 S C M R 1209

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Kamal Mansur Alam, JJ

KHALID GHOURI---Petitioner

versus

Mrs. TAZEEN CHOUDHRY---Respondent

Civil Petition No.302-K of 1999, decided on 16th August, 1999.

(On appeal from the judgment dated 5-3-1999 of the High Court of Sindh, Karachi in F.R.A. No.392 of 1991).

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

----Ss. 10(1) & 15---Constitution of Pakistan (1973), Art. 185 (3)---Rent, payment of---Tenant had not acquiesced in the periodic payments of accumulated rents for several months---Both the Courts below had ordered the ejectment of the tenant---No agreement for deviation from or non­observance of the mode prescribed by law for ensuring prompt payment of monthly rent could be presumed merely by reason of occasional waiver of default by landlord or acceptance of accumulated rent by him---Any deviation, to be effective,. should be by any mutual agreement, voluntarily, and conscientiously entered into---No exception could be taken to . the judgment of High Court---Leave to appeal was refused.

Taher Ali and 2 others v. Sh. Miran BuR Karam Bux and another 1989 SCMR 403; Muhammad Rafique Chaudhry v. Abdul Hamid and 3 others 1988 SCMR 1385; Abdul Aziz v. Abdul Ghani 1986 SCMR 1857; Alima Ahmad v. Amir Ali PLD 1984 SC 32 and Pragma Leather Industries v. Sadia Sajjad PLD 1996 SC 724 ref.

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

----S.10(1)---Payment of rent in absence of any date fixed by mutual agreement between landlord and tenant---Object of provision of S.10(1) of Sindh Rented Premises Ordinance, 1979---Such provision providing for regular payment of rent to landlord was in consideration of restrictions placed on the rights of the landlord to deal with his property and, therefore, should be strictly construed in favour of landlord.

Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400 ref.

N.C. Motiani, Advocate-on-Record for Petitioner Nemo for Respondent.

Date of hearing: 16th August, 1999.

2000SCMR1216

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

Syed ZAHID HUSSAIN and another----Appellants

versus

UNITED BANK LIMITED and others---Respondents

Civil Appeals Nos. 869 and 870 of 1999, decided on 20th December, 1999.

(On appeal from the judgment dated 24-9-1998 passed by Federal Service Tribunal in Appeal No. 204(P) and 205(P) of 1998).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art.212(3)---Delay in filing appeal before Service Tribunal---Application for condonation of delay not decided by Service Tribunal---Effect---Petitions of the employees under S.25-A, Industrial Relations Ordinance, 1969 were dismissed by Labour Court after insertion of S.2-A of Service Tribunals Act, 1973---Appeals before Service Tribunal were filed with delay---Application for condonation of delay was not considered by Service Tribunal while dismissing said appeals---Validity---Order of Service Tribunal was set aside by Supreme Court and cases were remanded for decision on the applications for condonation of delay.

Syed Aftab Ahmad v. K.E.S.C. 1999 SCMR 197 and Muhammad Afzal v. K.E.S.C. 1999 SCMR 92 ref.

Khalid Khan, Advocate Supreme Court for Appellants. Rai M. Nawaz Kharal, Advocate Supreme Court for Respondents.

Date of hearing: 20th December, 1999.

2000SCMR1218

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Wajihuddin Ahmed, JJ.

NOUBAHAR---Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 93-K of 1999, decided on 22nd December, 1999.

(On appeal from the judgment of the High Court of Sindh dated 10-9-1999 passed in Cr.A. No.5/93).

Customs Act (IV of 1969)---

----S. 156(1)(8)---Constitution of Pakistan (1973), Art.185(3)---Prosecution evidence had no material contradictions---Witnesses no doubt were Customs officials, but non-examination of any independent witness by the prosecution was not fatal to its case as the accused had been caught at the spot--­Prosecution witnesses had fully supported the prosecution case---Courts below had already been lenient in awarding sentence to the accused--­Conviction and sentence of accused were upheld in circumstances and his petition for leave to appeal was dismissed accordingly.

Umer Farooq Khan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 22nd December, 1999.

2000SCMR1219

[Supreme Court of Pakistan]

Present: Wajihuddin Ahmed and Kamal Masur Alam, JJ

STATE through Director, F.I.A. SBP Circle, Karachi---Petitioner

versus

Dr. MUHAMMAD USMAN FAROOQUI---Respondent.

Criminal Petition No. 61-K of 1999, decided on 4th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan (1973), Art. 185(3)---Cancellation of bail---Petition for leave to appeal was barred by 290 days---Not only a period of ten months of said delay had remained totally unexplained but the explanation for the remaining period was also wholly insufficient---Since huge public revenue was involved in the matter inquiry was directed to be held to find out the cause behind the relevant omissions and the circumstances leading to the cause of delay in filing the petition on behalf of the State---Impugned order of High Court granting bail to accused might not only be erroneous but rather illegal and notice was consequently issued to the accused for contesting the petition for leave to appeal.

Akhlaq Ahmad Siddiqui, Advocate Supreme Court/Advocate-on-­Record for the State.

Nemo for Respondent.

Date of hearing: 4th January, 2000

2000 S C M R 1221

[Supreme Court of Pakistan]

Present: Wajihuddin Ahmed and Kamal Mansur Alam, JJ

Miss RIZWANA ANDALEEB---Petitioner

versus

PRINCIPAL, CHANDKA MEDICAL COLLEGE, LARKANA

and another---Respondents

Civil Review Petition No. 35-K of 1999 in Civil Petition No.485-K of 1999, decided on 4th January, 2000.

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review--­Educational institution---Candidate was not considered for admission in previous session due to late issuance of domicile/permanent resident certificate to the candidate---Such plea was neither agitated in High Court, nor the same was mentioned in petition for leave to appeal before Supreme Court---Candidate was unable to place a copy of earlier admission form or rejection order---Effect---Review in Supreme Court was not a further appeal and scope of review was extremely limited---Supreme Court refused to alter the decision already rendered---Review petition was dismissed in circumstances.

Muhammad Muzaffar-ul-Haque, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th January, 2000

2000 S C M R 1222

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J., Nasir Aslam Zahid

and Mamoon Kazi, JJ

ALI YOUSUF and another----Petitioners

versus

CHAIRMAN OF ACADEMIC COUNCIL AND PRINCIPAL, DOW

MEDICAL COLLEGE, KARACHI and others---Respondents

Civil Petitions Nos. 619-K and 646-K of 1999, decided on 30th December, 1999.

(On appeal from the judgment of High Court of Sindh, dated 22-9-1999 passed in C.Ps. Nos. D-50 and 80/99 respectively).

(a) Educational institution---

---- Failure of medical student to pass first professional M.B.,B.S. Examination in four attempts---Contention by student was that she had fallen sick, but despite her illness she appeared in the examination and failed to qualify the same---Validity---Right to seek admission in an educational institution and to continue studies therein was always subject to the rules of discipline prescribed by the institution, and therefore, a student who intended to pursue his studies in the institution was bound by such rules---Rule of passing first professional M.B.,B.S. Examination in four attempts did not infringe upon right of a student to pursue his studies in medical college on the contrary it ensured arrest of falling standards of education in the institutions and there was no arbitrariness and unreasonableness in the rule.

Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 rel.

(b) Educational institution---

---- Studies in medical college---Qualifying examination under interim order passed by High Court---Validity---Interim order allowing the candidate to appear in the examination was subject to the condition that the candidate might appear at his own risk and subject to final decision of the case on merits---Where High Court dismissed the petition on merits, qualifying the examination under interim orders was of no avail to the candidate in circumstances.

(c) Constitution of Pakistan (1973)---

----Art. 185(3)---Educational institution---Studies in medical college--­Failure to clear first professional M.B.,B.S. Examination in four chances--­Missing of one chance due to illness of the candidate and it was circumstance beyond his control---Validity--Candidate did not inform College Authorities about his illness which prevented him in appearing the examination--­Medical Certificate of illness was produced by the candidate after about one year when he was issued notice for his expulsion from the college---There was no occasion for the College Authorities to have examined the contention of the candidate---Division Bench of High Court had rightly come to the conclusion that the candidate was not entitled to any further chance in view of the provisions contained in the prospectus of the college which governed continuation of studies of the candidate in the college---No case for interference with the judgment of High Court .was made out---Leave to appeal was refused.

Asim Siddqui v. Principal, Ayub Medical College, Abbottabad PLD 1992 Pesh. 52 distinguished.

Zubair Ishtiaq Qureshi v. Chairman, Academic Council and Principal of Sindh Medical College 1993 CLC 1675 ref.

Samiuddin Sami, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Petitioner (in C.P. No. 619-K of 1999).

Petitioner in person (in C.P. No. 646-K of 1999).

Munir-ur-Rehman, Additional Advocate-General for Sindh Government/Colleges (in C.P. No. 646-K of 1999).

Mehmood-ul-Hassan for P.M.D.C. (in C.P. No. 646-K of 1999).

Dr. Abdul Aziz Memon, SO for the Secretary Health (in C.P. No.646-K of 1999)..

Date of hearing: 30th December, 1999.

2000 S C M R 1227

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Munir A. Sheikh, JJ

KHAN MUHAMMAD and others---Petitioners

versus

Mst. ZAINAB BIBI through Legal Heirs and others---Respondents

Civil Petition for Leave to Appeal No. 489-L of 1997, decided on 24th August, 1998.

(On appeal from the order dated 21-10-1996 of the Lahore High Courr, Lahore passed in C.R. No. 2580/1995). '

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185(3)---Revision dismissed for non-prosecution---Failure to file application for condonation of delay---High Court refused to restore revision petition as the same was time-barred and no application for condonation of delay was filed---Validity---Order of High Court did not suffer from any illegality---Counsel for the petitioner conceded that no such application was filed alongwith the application seeking restoration of main petition---Leave to anneal was refused in circumstances.

Zahid Hussain Khan, Advocate Supreme Court for Petitioners.

S. Abul Aasim Jafri, Advocate-on-Record for Respondent No. 1.

Date of hearing; 24th August, 1998.

2000 S C M R 1228

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Munir A. Sheikh, JJ

KHIZAR through Legal Heirs and another---Petitioners

versus

ALLAH DITTA and 4 others---Respondents

Civil Petition for Leave to Appeal No. 1176-L of 1998, decided on 2nd December, 1998.

(On appeal from the. judgment of Lahore High Court, Lahore passed in R.S.A. No. 205 of 1978 dated 17-7-1998).

Punjab Pre-emption Act (I of 1913)---

----S. 30---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Limitation---Trial Court decreed suit and appeals before both Lower Appellate Court and High Court were dismissed---Contention by the petitioner was that Courts below failed to advert to the question of limitation and suit should have been dismissed on that question---Validity---Question of limitation, though was agitated in grounds of appeal but it appeared that the question was conceded at the time of arguing the appeal as the same stood so in the appellate judgment---The ground of limitation had been urged again in memorandum of second appeal, but it was nowhere stated that the petition had not conceded the ground of limitation and mention -of concession had been wrongly made in the judgment of Lower Appellate Court---Factum of making of concession had not been challenged in petition for leave to appeal before Supreme Court---Suit having been filed within one year of attestation of mutation was within time and such finding recorded by Trial Court that the suit was within time was maintained by both the Appellate Courts below was well-founded---Leave to appeal was refused in circumstances.

Zahid Hussain Khan, Advocate Supreme Court, Malik Allah Yar Khan; Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Mian Muhamamd Ilyas, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 2nd December, 1998.

2000 S C M R 1230

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ: Mamoon Kazi and Kamal Mansur Alain, JJ

HASSAN ABBAS ---Petitioner

versus

SINDH LABOUR APPELLATE TRIBUNAL, KARACHI

and 2 others---Respondents

Civil Petition No. 94-K of 1999,-decided on 15th July, 1999.

(On appeal from the judgment of High Court of Sindh, dated 6-11-1998 passed in Constitutional Petition No. D-761 of 1998).

Industrial Relations Ordinance (XXIIII of 1969)---

----S. 25-A---Constitution of Pakistan (1973), Art.185 (3)---Temporary employment---Termination of service---Grievance petition---Concurrent findings of fact by both the Courts below---Contention by petitioner was that his services were terminated without notice before period for employment was completed---Validity---Both the Courts below came to the conclusion concurrently that there was evidence on record that notice of termination of service of the petitioner was duly served on him and the same was supported by postal receipts produced before the Courts below =-Findings of fact were in accord with the evidence on record and the petitioner had not been able to demonstrate that said findings suffered from any misreading or non. consideration of any material piece of evidence ,on record---No case for interference with order of High Court was made out----Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 15th July, 1999.

2000 S C M R 1232

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J: Muhammad Bashir Jehagiri

and Nazim Hussain Siddiqui, JJ

AKRAM ZAHOOR and others---Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos. 1524 to 1529, 1576 to 1697, 1713, 1714, 1719 to 1721, 1776 and 1519 of 1999, decided on 11th March, 2000.

(On appeal from a common judgment dated 23-8-1999 of the Federal Service Tribunal, Islamabad passed in Appeal No. 792-L of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss2-A & 6---Constitution of Pakistan (1973), Art.212(3)---Bank employees---Termination of services under Retrenchment Scheme of employees of various categories of . the Bank---Service Tribunal had dismissed appeal of employees against termination of their services on grounds of limitation as well as on merits---Validity---Parties by consent agreed before Supreme Court that cases be remanded to the Bank for disposal to. the extent that adjustment of loans obtained by the employees from Bank shall be made strictly in accordance with the respective loan agreements executed, between each of the employees and the Bank and grant of pensionary benefits shall be availed to the employees who were found entitled in accordance with the Service Rules of the Bank in force at the time of termination of their services---Supreme Court, while converting the petition into appeal and while maintaining the order of termination of employees directed that if the ,employees were aggrieved with the decisions that may be rendered by the Bank pursuant to remand order, they shall be at liberty to approach the appropriate Service Tribunal afresh for resolution of the disputes arising out of the consent order highlighted in the judgment of Supreme Court, alone, after availing the departmental remedies in accordance with law.

United Bank Limited through President v. Shahmin Ahmed Khan and 41 others PLD 1999 SC 990 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.P. Nos. 1524 to 1529, 1576 to 1659, 1719 to 1721 and 1776 of 1999).

Petitioners in person (in C.Ps. Nos. 1713, 1714 and 1519 of 1999).

M. Akram Sheikh, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1660 to 1697 of 1999).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondent-Bank.

Date of hearing 11th April, 2000

2000SCMR1236

[Supreme Court of Pakistan]

Present: Wajihuddin Ahmed and Kamal Mansur Alam, JJ

GOVERNMENT OF SINDH through Deputy Commissioner, Hyderabad and others---Petitioners

versus

Munshi MUHAMMAD EIDEN QURESHI---Respondent

Civil Petition No. 528-K of 1999, decided on 4th January, 2000.

Supreme Court Rules, 1980---

----O.XXXIII, R.6---Constitution of Pakistan (1973), Art.185(3)--­Limitation, question of---Inherent power---Petition filed by Government in Supreme Court was sixty days beyond time---Explanation of delay at departmental level was ambiguous and it was not stated as to at what level, by which officer, and what period was, spent in processing the matter leading, ultimately, to filing of petition sixty days beyond time---Effect--­Delay caused at departmental level of Government was placed on no higher plane than delay suffered by ordinary litigant---Supreme Court directed the Government to submit a proper statement in the Court indicating all the relevant details.

Munir-ur-Rahman, Additional Advocate-General for Petitioners.

Nemo for Respondent.

Date of hearing: 4th January, 2000.

2000 S C M R 1237

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Marrioon Kazi and Kamal Mansur Alam, JJ

PROVINCE OF SINDH through Chief Secretary, Government of Sindh---Petitioner

versus

AHSANULLAH---Respondent

Civil. Petition for Leave to Appeal No. 155-K of 1999, decided on 26th July, 1999.

(On appeal from the judgment/order, dated 27-11-1998, of the Sindh Service Tribunal at Karachi, in Appeal. No. 30 of 1998).

Constitution of Pakistan (1973)---

----Art.212(3)---Keeping in civil servant without posting---Service Tribunal allowed appeal of civil servant with finding that in case an officer was not given any posting the loss caused to Government would be recovered from personal pocket of the posting and transferring Authority---Validity---Service Tribunal was not justified to give such observation in the judgment---Petition for leave to appeal was converted into appeal and such portion of judgment of Service Tribunal was ordered to be deleted by Supreme Court.

Ainuddin, Additional Advocate-General with Wajahat Niaz, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 26th July, 1999.

2000 S C M R 1239

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Manwon Kazi and

Kamal Mansur Alain, JJ

REHANA JAMAL and others---Petitioners r

versus

MUHAMMAD ASIM---Respondent

Civil Petition No. 84-K of 1999, decided on 13th July, 1999.

(On appeal from the judgment of the High Court of Sindh, dated 4-11-1998 passed in F.R.A. No.126/95).

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

----S. 15---Constitution of Pakistan (1973), Art.185(3)---Default by tenant and plea of bona fide personal use of landlady---Suppression of facts by landlady with regard to other properties owned by her ---Ejectment petition was dismissed by both the Courts below---Contention raised by landlady was that High Court was in error while holding that tenant was not liable to be ejected on the ground of default and that of her personal bona fide need--­Evidence of landlady was disbelieved on the ground that landlady had suppressed material facts in regard to other properties owned by her---Leave to appeal was granted to consider contentions raised by the landlady in circumstances.

Syed Haider Ali Pirzada, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

2000 S C M R 1241

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Wajihuddin Ahmed, JJ

GOVERNMENT OF SINDH---Petitioner

versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Review Petitions Nos. 37-K to 43-K of 1999, heard on 22nd December, 1999.

(a) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court---Order of Supreme Court had not been implemented by Government even after lapse of six months---Officials concerned prima facie appeared to be guilty of contempt of Court for having failed to implement the order of Supreme Court.

(b) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Limitation Act (IX of 1908), S.5---Review---Time-barred---Condonation of delay was sought on the ground that due to financial problems Government could not file review application in time---Despite lapse of six months Government failed to implement order of Supreme Court---Effect---Delay was not condoned---Petition was time-barred and also no ground for review was made out from the application---Review application was dismissed in circumstances.

Munir-ur-Rehman, Additional Advocate-General and Miss Wajahat Niaz, Advocate-on-Record for Petitioner.

Respondents in person.

Date of hearing: 22nd December, 1999

2000 S C M R 1242

[Supreme Court of Pakistan]

Present: Wajihuddin Ahmed and Kamal Mansur Alam, JJ

Messrs COSMIC ENTERPRISES---Petitioner

versus

SALMA KHATOON KIZILBASH---Respondent

Civil Petition No.5-K of 2000, decided on 6th January, 2000.

Sindh Rented Premises Ordinance (XVB of 1979)---

----S. 15---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art. .185 (3)---Bona fide personal need of landlady--­Principle of res judicata---Divergence of opinion between findings of Rent Controller and High Court---Effect---Previous litigation between the parties existed and in the face of a decision on merits as regards the litigation a question of res judicata legitimately arose---Divergence of opinion between Rent Controller and High Court, not on the question -of res judicata but on merits---Leave to appeal was granted by Supreme Court to consider whether present set of proceedings were hit by res judicata and whether projected need of the landlady was bona fide.

A. Aziz Khan, Advocate Supreme Court for Petitioner. K.A. Wahab, Advocate-on-Record for Respondent.

Date of hearing: 6th January, 2000.

2000 S C M R 1244

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Mamoon Kazi and Kamal Mansur Alam, JJ

UNIVERSITY OF KARACHI---Petitioner.

versus

MUHAMMAD WALI KHAN DURRANI and 2 others---Respondents

Civil Petition No.566-K of 1999, decided on 29th July, 1999.

(On appeal from the judgment dated 26-5-1998 of the Sindh Service Tribunal at Karachi in Appeal No.29 of 1995).

Sindh Service Tribunals Act (XV of 1973)---

----S. 3-E---Constitution of Pakistan (1973), Art., 212(3)---Termination of service ---Deputationist's right to approach Service Tribunal---Contention by the employer University was that the employee was a deputationist and was precluded from approaching the Service Tribunal by virtue of S.3-E of Sindh Service Tribunals Act, 1973; that requisite departmental appeal having not been preferred, appeal before Service Tribunal was not maintainable and that employee's appeal before Service Tribunal. was barred by time---Leave to appeal was granted to examine contentions raised in the petition.

K.A. Wahab, Advocate-on-Record for Petitioners.

M.M. Aqil Awan, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Respondent No. 1.

Date of hearing: 29th July, 1999.

2000 S C M R 1245

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Wajihuddin Ahmed, JJ, MUHAMMAD YOUSIF and another---Petitioners

versus

MUHAMMAD SULLEMAN and 4 others---Respondents

Civil Petition No. 386-K of 1999, decided on 25th August, 1999.

(On appeal from the judgment dated 7-4-1999 of the Sindh High Court, Hyderabad Circuit, passed in C.P. No. D-17 of 1988).

Land Reforms Regulation, 1972 [M.L.R.115]---

----Para,25---Constitution of Pakistan (1973), Art. 185(3)---Right of pre­emption of Hari ---Deputy Commissioner recognised such right of the respondent whereas Additional Commissioner set aside the order of Deputy Commissioner and it was confirmed by Member, Board of Revenue---High Court in exercise of its Constitutional jurisdiction accepted the right of respondent and quashed orders passed by Additional Commissioner and Member, Board of Revenue---Contention by petitioner was that High Court was in error just quashing the two orders and in consonance thereof should have remanded the case back to one or the other of those Authorities---Leave to appeal was granted by Supreme Court to consider whether High Court was obliged to remand the case upon quashing of the two orders.

N.-W.F.P. Government v. Said Kamal Shah PLD 1986 SC 360 and Sardar Ali v. Muhammad Ali PLD 1988 SC 287 ref.

Azhar Alam Farooqi, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 25th August, 1999.

2000 S C M R 1247

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J. and Kamal Mansur Alam, J

IMTIAZ AHMED MEMON---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition for Leave to Appeal No.362-K of 1997, decided on 21st December, 1999.

Constitution of Pakistan (1973)--

----Art. 212(3)---Enforcement of terms and conditions of service--­Contention by civil servant was that his case was separated from a similar matter and was disposed of by High Court whereas the other identical matter was still pending there---Validity---Jurisdiction of High Court was barred in dispute related to enforcement of terms and conditions of service of civil servant under Art. 212 of the Constitution---Finding of High Court being unexceptionable, leave to appeal was refused by Supreme Court.

Fazal-i-Ghani, Advocate Supreme Court for Petitioner. Nemo for Respondents.

Date of hearing: 21st December, 1999.

2000 S C M R 1248

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munawar Ahmad Mirza

and Ch. Muhammad Arif, JJ

MUHAMMAD ISHAQ---Petitioner

versus

DISTRICT JUDGE, RAHIMYAR KHAN and others---Respondents

Civil Petition No. 1526-L of 1999, decided on 21st October, 1999.

(On appeal from the judgment dated 24-6-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur in W.P. No. 2320/1993/BWP).

West Pakistan Urban Rent Restriction Ordinance- (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant---Default in payment of rent---Dispute as to title of the property--­Tenant disputed title of the premises and suit filed by him in Civil Court was unconditionally withdrawn, during the pendency of ejectment proceedings--­Courts below decided the matter against the tenant and he was ordered to be evicted from the premises---Contention by tenant was that as the dispute with regard. to title of property had not been decided by Civil Court, the possession of tenant could not be disturbed---Validity---Such plea lost sight of the fact that tenant had only himself to blame for not pursuing his earlier suit regarding title and its unconditional withdrawal heightened the effect of ejectment proceedings against his interests---Leave to appeal was refused.

Shamshir Iqbal Chughtai, Advocate Supreme Court and Ch. M Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 21st October, 1999.

2000 S C M R 1251

Present: Irshad Hasan Khan, Munir A. Sheikh and

Wajihuddin Ahmed, JJ

SHER MUHAMMAD ---Petitioner

versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition for Leave to Appeal No.1625-L of 1997, decided on 23rd November, 1999.

(On appeal accepted on 23-1-1999 from the judgment/order dated 20-11-1997 of the

Lahore High Court, Lahore passed in C.R. No. 1851-D of 1997).

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & I1---Constitution of Pakistan (1973), Art. 185(3)---Cancellation of allotment---Leave to appeal was granted by Supreme Court to consider; whether land in dispute which was admittedly an evacuee property had been transferred under the Settlement and Rehabilitation Laws to Forest Department and the same stood excluded from compensation pool as such, was not available for allotment under Displaced Persons (Land Settlement) Act, 1958 to the petitioner; and whether suit filed by the petitioner to challenge the order of the Settlement Authorities made under Ss. 10 & 11 of Displaced Persons (Land Settlement) Act, 1958 for cancellation of allotment of land to the predecessor-in-interest of the petitioner, i.e. the original allottee/vendor, in which the petitioner was not made party, though at the time of initiation of the proceedings the land had already been sold to the petitioner, could be held to be barred by time.

Mian Sarfraz-ul-Hassan, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioner.

Ghulam Haider Al-Ghazali, Addl. Advocate-General and Masood Sadiq Mirza, Advocate Supreme Court for Respondents.

Date of hearing: 23rd November, 1999.

2000 S C M R 1252

[Supreme Court of Pakistan]

Present: Mamoon Kazi, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Mst. KHANNADI and others---Petitioners

versus

GOVERNMENT OF SINDH and others---Respondents

Civil Petition No.743-K of 1998, decided on 8th June, 1999.

(On appeal from the judgment dated 10-11-1998 passed by the High Court of Sindh, Sukkur Bench in C.P. No.D-1035 of 1995).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art. 185(3)---Specific performance of agreement to sell---Bar under S. 19 of Colonization' of Government Lands (Punjab) Act, 1912--­Applicability---Respondents entered into an agreement to sell with the petitioners qua suit land prior to grant of proprietary rights in their favour--­Leave to appeal was. granted to consider question that at time of the agreement the proprietary rights had not been granted to respondents and that subsequent .grant of proprietary rights would, in law, furnish a cause of action in favour of petitioners to file suit for specific performance, without any let or hindrance.

Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 5CMR 1510 and Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 ref.

Abdul Rahim Kazi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th June, 1999.

2000 S C M R 1255

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

MUHAMMAD NAZIR MALIK ---Appellant

versus

S.A.T. WASTI and others---Respondents

Civic Appeals No. 876 and 878 of 1999, decided on 20th December, 1999.

(On appeal from the judgment dated 2-11-1998 and 10-11-1998 passed by Federal Service Tribunal in Appeal No.828(R) of 1998 and 840(R) of 1998 respectively).

Service Tribunals Act (LXX of 1973)---

----Ss. 2A & 6---Dismissal from service---Appeal before Service Tribunal--­Limitation---Appellants became entitled to file appeals before Service Tribunal only on abatement of their suit/petition before Civil Court and Labour Tribunal respectively---Provisions of S.6 and not S.4 of Service Tribunals Act, 1973, would apply in such a situation---Orders of Service Tribunal were set aside and cases were remanded to Service Tribunal for decision afresh.

Nemo for Appellants.

Malik Muhammad Nawaz,. Advocate Supreme Court for Respondents.

Date of hearing: 20th December, 1999.

2000 S C M R 1257

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munir A. Sheikh and

Wajihuddin Ahmed, JJ

ALLAH DITTA and others---Petitioners

versus

SAID---Respondent

Civil Petition No. 1556/L of 1999, decided on 24th November, 1999.

(On appeal from the judgment of the Lahore High Court, dated 25-5-1999 passed in R S. A. No.277 of 1977).

(a) Punjab Pre-emption Act (I of 1913)---

----S.4---Constitution of Pakistan (1973), Art. 185(3)---Right of pre­ emption---Subsisting right---Trial Court dismissed suit filed by pre-emptor, whereas Lower Appellate Court decreed the same and second appeal was dismissed by High Court--- -Pre-emptor being a tenant was ordered to be ejected from the suit land by Revenue Authorities but such order of Revenue Authorities was set aside by Board of Revenue---Validity---High Court was right in holding that the pre-emptor could not be said to have lost his superior right at the third stage, particularly when decree in the suit had preceded the initial order of eviction in revenue jurisdiction--Pre-emptor's right was resurrected, while the proceedings were pending, with Board of Revenue; recalling his eviction---Leave to appeal was refused.

Hasil v. Karam Hussain Shah 1995 SCMR 1385 ref.

(b) Punjab Pre-emption Act (I of 1913)---

----S.4---Right of pre-emption, a subsisting right---Scope---In order to succeed in a pre-emption suit, pre-emptor should have a subsisting right at three stages, namely, on the date of the sale, on the date of institution of suit and on the date of passing of decree.

Hasil v. Karam Hussain Shah 1995 SCMR 1385 ref.

S.M. Rashid, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 24th November, 1999.

2000 S C M R 1259 -

[Supreme Court of Pakistan]

Present: Nasir Aslant Zahid, Mamoon Kazi

and Wajihuddin Ahmed, JJ

SOOMAR and others---Appellants

versus

MUHAMMAD SHAH and others---Respondents

Civil Appeal No.958 of 1993, decided on 7th January, 2000

(On appeal from the judgment of the Sindh High Court dated 11-8-1993 passed in Constitutional Petition No.D-100 of 1989).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.10(2)--=Constitution of Pakistan (1973), Art. 185(3)---Re-grant of Government land---Old grantees made application to the Commissioner for regrant of the cancelled land which was dismissed but second application for the same purpose was allowed and in the result cancelled land was re-­granted---Board of Revenue in an open Katchery on an application against re­-grant, cancelled the order of re-grant and ordered for disposal of the land--­High Court allowed Constitutional petition by the old grantees---Leave to appeal was granted by Supreme Court to consider whether letter issued by Member, Board of Revenue delegating power of re-grant had proper legal cover of validity and secondly after rejecting request for re-grant, whether Commissioner had power of review to accept the same.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.10 (2)---Re-grant of Government lands---Failure to follow policy laid down by Provincial Government for allotment of such lands---Grant was cancelled due to non-deposit of installment of price of the lands--­Commissioner, without putting the matter of re-grant in open Katchery, re­-allotted the, lands in favour of the same party---High Court in exercise of its Constitutional jurisdiction affirmed the order of the Commissioner--­Validity---High Court did not consider several questions of law which arose in the case and, without decision of such questions Constitutional petition could not be properly disposed of---Order of High Court was set aside and case was remanded to , the Court for decision afresh after considering questions raised by Supreme Court.

K.B. Bhutto, Advocate Supreme Court and Ahmadullah Faruqi, .Advocate-on-Record (absent) for Appellants. Respondents Nos. 1 and 2: Ex parte.

Nemo for Respondents Nos.3 and 4. S. Ghulam Sarwar Shah, Barrage Mukhtiarkar, Badin for

Date of hearing; 7th January; 2000.

2000 S C M R 1264

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Mamoon Kazi

and Kamal Mansur Alam, JJ

Mst. FARIDA---Petitioner

versus

Mst. SANJIDA and others---Respondents

Civil Petition No. 142-K of 1999, decided on 29th July, 1999.

(On appeal from the judgment dated 2-11-1998 of the High Court of Sindh, Karachi in R.A. No 46 of 1993).

Civil Procedure Code (V of 1908)---

----O.XXI, R.66---Constitution of Pakistan (19731, Art. 185(3)---Auction proceedings---Non-compliance of provisions of O.XXI. R.66, C.P.C.--­Effect---Contention by the petitioner was that provisions of O.XXI, R.66, C.P.C. were not complied with and even the property was not correctly specified in the proclamation of sale and that by clever maneuvering, the respondents were trying to deprive the petitioner of her property for a paltry sum---Leave to appeal was granted by Supreme Court to consider the contention raised.

K.A. Wahab, Advocate-on-Record for Petitioner. Miss Wajahat Niaz, Advocate-on-Record for Respondent No.3.

Date of hearing: 29th July, 1999. .

2000 S C M R 1266

[Supreme Court of Pakistan]

Present: Sniduzzaman Siddiqui, C.J., Wajihuddin Ahmed

and Kamal Mansur Adam, ,JJ

COLLECTOR OF CUSTOMS AND CENTRAL EXCISE, GOVERNMENT OF PAKISTAN---petitioner

versus

BAWANY SUGAR MILLS LTD. and others---Respondents

Civil Petitions Nos. 440-K to 455-K of 1999, decided on 30th. December, 1999.

(On appeal from common judgment of High Court of Sindh, dated 28-4-1999 in Special Customs Appeals Nos.27 to 42 of 1998).

(a) Central Excises Act (I of 1944)---

----Ss, 3-C & 12-A-_-Federal Government Notification No. S.R.O. 560(1)/82 dated 14-6-1982---Exemption from excise duty---Withdrawal of exemption---Effect---Dispute was with regard to collection of excise duty on stock of sugar held, by mill owners on the date when Notification No. S. R. O. 560(1)/82 dated 14-6-1982 was withdrawn---High Court found that mill owners were entitled to such exemption on the disputed? stock for the reason that there was no charge in selling price of sugar after withdrawal of the exemption---Validity---Mill owners were entitled to the exemption as they had not increased the selling price of sugar after withdrawal of exemption of excise duty on the stock of sugar---Case of the mill owners being covered by tie decision of Supreme Court in the case of Army Welfare Sugar Nfilis Ltd. v. Federation of Pakistan (1992 SCMR 1652) they were entitled to-enjoy the exemption---No case for interference with the judgment of High Court was made out.

Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 ref.

Per Wajihuddin Ahmed, J.--

(b) Central Excises Act (I of 1944)---

----Ss. 3-C & 12-A---Exemption on excise duty, withdrawal of---Double taxation---Dispute was with regard to collection of excise duty on stock of sugar held by mill owners on the date when the exemption was withdrawn---Mill owners had paid income-tax on the excess of profit which accrued after the withdrawal of exemption on excise duty--­Effect---Mill owners were required to pay taxes namely, income-tax on the applicable gain, on the one hand and the entire excess itself, purporting to be equivalent of excise duty on the other which was neither permissible nor could possibly be within contemplation of the order of Supreme Court passed in the case of Army Welfare Sugar Mills reported as 1992 SCMR 1652.

Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 CMR 1652 ref.

Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioners (in all Cases).

Afsar Abdi, Advocate Supreme Court and A.A. Khan, Advocate-on-Record for Respondents (in C.Ps. Nos.440, 443, 445, 449, 451, 452 and 455-K of 1999).;

Fakharuddin G. Ebrahim, Advocate Supreme Court and N.C. Mutani, Advocate-on-Record for Respondents (in C.P. No. 441-K of 1999).

Date of hearing: 5th August, 1999,

2000 S C M R 1273

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ- and Kamal Mansur Alain, J

SHAUKAT and 2 others--=Petitioners

versus

ALI HUSSAIN ---Respondent

Civil Petition No.610-K of 1999, decided on 22nd December, 1999.

(On appeal from the judgment of High Court of Sindh dated 24-9-1999, passed in R.F.A. No. 16 of 1996).

(a) Constitution of Pakistan (1973)---

----Art. 185---Appellate jurisdiction of Supreme Court---Finding of fact---­Interference---Scope---No finding of fact is to be scrutinized by Supreme Court in absence of any misreading or non-consideration of any material piece of evidence on record.

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

---S. 15---Ejectment of tenant---Default in payment of monthly rent--­Remitting of rent through money order after due period---Concurrent findings of both the Courts below---Contention by tenant was that rent was paid to landlord who did not issue any receipt--Validity---Both the Courts below did not believe the assertion of the tenants that no receipts were issued in acknowledgement of payment of rent---Such question could not be examined by Supreme Court in appeal---No evidence was available on record to the effect that the rent was paid by the tenants for disputed period--­Money orders on record, through which rent was allegedly remitted were also of no avail to the tenants as the same were tendered after default was committed---No case for interference with the judgment of High Court was made out.

Ghimuddin Mirza, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd December, 1999,

2000 S C M R 1274

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD ISHAQ---Petitioner

versus

DISTRICT AND SESSIONS JUDGE, JHANG

and others---Respondents.

Civil Petition for Leave to Appeal No. 887-L of 1998, decided on 1st December, 1999.

(On appeal from the judgment/order dated 11-3-1998 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1118 of 1996).

Constitution of Pakistan (I973)----

---Art. 212(3)---Dismissal from service on charge of malpractices ---Civil servant was found guilty of malpractices while working as Copyist in Copying Branch in the office of District and Sessions Judge and was dismissed from service---Plea of innocence and lack of knowledge was raised by the civil servant but departmental appeal was dismissed and appeal before Service Tribunal also met the same fate---Validity---Civil servant was a new entrant and had a short stay in the Department but this fact could not absolve hire of the responsibility---Service Tribunal had rightly concluded that it was impossible to believe that the civil servant was residing in an island of innocence and that he was unaware of any malpractice---Leave to appeal was refused in circumstances.

Ch. Mushtaq Masood, .advocate St:premz Court acrd Sh. Masood Akhtar. Advocate-on--Record for Petitioner.

Nemo for Respondent.

Date of hearing: 1st Decemebr, 1999.

2000 S C M R 1277

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J. and Ch. Muhammad Arif, J

BASHIR AHMED QAMAR and another---Petitioners

versus

SHAKEEL EXPRESS (PRIVATE) LTD. ---Respondent

Civil Petition No .1792 of 1999, decided on 9th December, 1999.

(On appeal from the order of Lahore High Court, Rawalpindi Bench, dated 11-10-1999 passed in R.F.A. 99/99 (C.M.A. Nos-.1172 of 1999) and 8 of 1997).

Civil Procedure Code (V of 1908)--

----O.XLI, R.5---Constitution of Pakistan (1973), Art. 185(3)---Stay of execution of decree---Execution of decree was stayed by High Court subject to furnishing of Bank guarantee for decretal amount---Petitioner moved application in the High Court seeking modification of the order of furnishing of Bank guarantee---High Court refused to modify the order---Petitioner filed petition for leave to Supreme Court and contended that he was not in a position to furnish Bank guarantee for the decretal amount---Validity---Order passed by High Court declining to modify its earlier order was purely discretionary and nothing had been shown before Supreme Court in support of the contention that discretion was not exercised by High Court properly--­No case for interference with the judgment of High Court was made out--­Leave to appeal was refused accordingly.

Kohinoor Sugar Mills Ltd. v. Kohinoor Textile Mills 1996 SCMR 1883 distinguished.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 9th December, 1999.

2000 S C M R 1279

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sheikh Riaz Ahmed

and Ch. Muhammad Arif, JJ

TABASSAM NAZIR and others---Petitioners

versus

THE DISTRICT JUDGE, FAISALABAD and others---Respondents

Civil Petition No. 935-L of 1997, decided on 24th November, 1999.

(On appeal from the common judgment dated 8-5-1997 passed by the La-pore High Court, Lahore in W.P. No. 4700 of 1997).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Petition for leave to appeal---Suit for declaration of rights of inheritance ---Averments trade in the plaint and material brought on record by plaintiffs had made out a case for further proceedings with the plaint/suit, initial onus to prove fraud etc. having been perpetuated by any side in relation to the civil rights of citizens, remained on the plaintiff/party alleging such a state of affairs; snapping of the tie which made a litigation qualified for being proceeded with for trial in relation to the respective rights of inheritance of people similarly placed as private parties, could riot be countenanced in law and question with regard to the suit being barred by time or not also required production of evidence by the parties in the suit---Remedy---Pleadings of the parties should have been attended to in accordance with the normal procedure relating to trial of suits/disputes after full dressed arguments in line with the oral and documentary evidence brought on the record---Such having ,not been done and the entire litigation having taken a different turn after the submission of their written statements by the defendants in the case, the defendant side made an application under (.VII, R.11, C.P.C. and the same was taker: upon alongside the earlier application of the plaintiff side under O.XXXIX, Rr.1 & 2, C. P. C. and S. 151, C. P. C.---Lot of time was consumed in having the dispute resolved. at the interim stage by the Trial Court, the appellate/revisional forum and the High Court in Constitutional jurisdiction---Supreme Court, in circumstances, converted the petition for leave to appeal, allowed the same and remanded the matter to the Trial Court for its hearing after framing ' appropriate issues and allowing opportunity to the parties to lead whatever evidence they wanted to in the cause.

Mushtaq Ahmed Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Ihsanullah Khan, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents.

Date of hearing: 24th November, 1999.

2000.S C M R 1287

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J. and Ch. Muhammad Arif, J

Dr. SHABBIR AHMED and 4 others---Petitioners

versus

ABDUL HALEEM and 3 others---Respondents

Civil Petition No. 1213-L of 1998, decided on-9th December, 1999.

(On appeal from the judgment of Lahore High Court, Lahore, dated 27-2-1998 passed in R.S.A. No. 113 of 1989).

(a) Limitation Act (IX of 1908)---

----Art. 91---Constitution of Pakistan (1973), Art. 185(3)---Cancellation of sale-deed---Concurrent findings by all the three Courts below---Petitioner failed to establish that disputed sale-deed was executed by predecessor-in-­interest of the respondents---All the Courts below categorically found that the alleged power of attorney on basis of which the sale was made, was not produced in evidence and even otherwise, the power of attorney did not authorise to effect sale in favour of his wife---Validity---Suit would not fall under Art. 91 of Limitation Act, 1908 in view of finding of three Courts below---Respondents in plaint alleged that they came to know the fact regarding sale of property a few months before filing of suit---Such suit was not barred under Art. 91 of Limitation Act, 1908---Supreme Court declined to interfere with the judgment of High Court and petition for leave to appeal was dismissed in circumstances.

Hamida Begum v. Murad Begum PLD 1975 SC 624; Muhammad Sharif v. Inayat Ullah 1996 SCMR 145; Sheedi v. Muhammad. Siddique and 2 others PLD 1980 Lah. 477; Hamida Begun v. Murad Begum and others PLD 1975 SC 624 and Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143 ref.

(b) Limitation Act (IX of 1908)---

----Art. 91---Suit for cancellation of document---Starting point of limitation---Starting point of limitation under Art. 91 of Limitation Act, 1908 is the date on which the fact regarding sale of .property had become known to the plaintiff.

Mian Saeedur Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Petitioners.

M.A. Qureshi, Advocate-on-Record (absent) for Respondents.

Date of hearing: 9th December, 1999.

2000 S C M R 1292

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, CJ, Muhammad Bashir Jehangiri

and Nazim Hussain Siddiqui, JJ

Miss AKHTAR QURESHI---Appellant

versus

NISAR AHMAD---Respondent

Civil Appeal No. 1221 of 1998, decided on 13th April, 2000.

(On appeal from the judgment dated 16-2-1998 of the High Court of Sindh, Karachi passed in F.R.A. No. 275 of 1997).

(a) Sindh Rented Premises Ordinance (XV1Q of 1979)---

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlady---Leave to appeal was granted by Supreme Court to consider as to whether the fact that the landlady, who was grown up and unmarried, desired after her marriage to live independently, was not enough of a reason to spell out a bona fide requirement of the landlady to seek eviction of the tenant from the demised premises.

(b) Siridh Rented Premises Ordinance, (XVH of 1979)--

----S. 15(2)(vii)---Bona fide personal need of landlady---Requirement of landlady of her house on ground that she needed her own accommodation to start her matrimonial life was bona fide---Share of such landlady in the house which was in joint ownership with her brother would not, in any way debar the landlady to get the premises vacated of which she was the exclusive owner---Tenant could not be given a right to assert that his landlady's co­-sharership or her joint living with her sister was in any way valid defence to urge that landlady's requirement of the demised premises was mala fide particularly when her marriage was going to be solemnized which had been already delayed.

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

----S. 15(2)(vii)---Bona fide personal need of landlady---Validity---Statement of landlady on oath was quite consistent with her averments made in the ejectment application, neither her statement was shaken nor anything was brought in evidence to contradict the said statement---Rent Controller, in circumstances, was fully justified in accepting the evidence of the landlady and ordering the eviction of the tenant.

Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

(d) Sindh Rented Premises Ordinance (XV11 of 1979)---

----S. 15(2)(vii)---Bona fide personal need of landlady/landlord ---Proof--­Assertion or claim on oath by the landlady/landlord that she/he required the premises for her/his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion of landlady/landlord, although by itself may not be sufficient, yet was consistent .with her/his averments made in the application and were neither shaken in the cross-examination nor was disproved in rebuttal.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Proof---Evidence on record fully justified the claim of the landlady that she required the premises bona fide for her own use as she had no other accommodation of her own that landlady due to her impending marriage, was entitled to settle in a separate accommodation of her own and that her relations with her sister-in-law were so strained that there was no possibility -of her residing together with the family of her brother and sisters after getting married--­Rent Controller, in circumstances; was justified to order eviction of tenant.

Mst. Ashraf Alia's case 1991 CLC 53 and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Akhlaq Ahmad, Siddiqui, Advocate-on-Record for Appellant. Respondent in person (absent).

Date of hearing: 13th April, 2000.

2000 S C M R 1297

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

MUHAMMAD RASHID and others ---Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos.1112 to 1122, 1126 to 1138, 1144 to 1146 and 1152 of 1999, decided on 18th April, 2000.

(On appeal from the judgment dated 31-3-1999 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.785-R/98 to 793(R)/98).

(a) Civil Servants (Seniority) Rules, 1993---

----Preamble---Rules are prospective in nature and would supersede all practices, instructions and office memoranda in the sphere of fixing seniority of civil servants.

Federation of Pakistan and others v. Muhammad Sharif Sabir and others 1999 SCMR 185 ref.

(b) Civil service---

----Seniority---Principles for fixation' of inter se seniority between promoted and directly recruited civil servants highlighted.

Fasihuddin Siddiqui v: Government of Pakistan and others 1998 SCMR 637; Muhammad Yousif and others v. Abdul Rashid and others 1996 SCMR 1297; Muhammad Nawaz Khan, Assistant v. Muhammad Ijaz Rashid, Assistant and others PLD 1993 SC 10; Ghulam Muhammad v. Federation of Pakistan 1992 SCMR 957 and Manzoor Ullah v. Sabir Zameer Siddiqui 1991 SCMR 1127 ref.

(c) Civil service---

----Seniority---Failure to challenge the earlier seniority list---Effect

Pervez Ijaz Sheikh v. Secretary, Establishment Division and others 1994 SCMR 1523 and Nek Muhammad Ropaal v. Government of Punjab PLD 1990 SC 672 ref.

(d) Service Tribunals Act (LXX of 1973)---

----S.4---Appeal---Limitation Seniority---Contention was that Departmental Authority had assigned the seniority in violation of law on the subject--­Limitation.

Government of Sindh v. Khalik Ahmad 1994 SCMR 782; Malik Khaja Muhammad and others v. Marduman Babar Kohal and others 1987 SCMR 1543 and Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119 ref.

(e) Civil Servants (Seniority) Rules, 1993---

----R. 3---Constitution of Pakistan (1973), Art. 212(3)---Seniority--­Promotion---Leave to appeal was granted by Supreme Court to examine the contentions to the effect that Civil Servants (Seniority) Rules, 1993, being not retrospective in operation, same could not be applied to the seniority of civil servants as determined in 1985; that according to Rules, ratio of fifty-­fifty was required to be maintained in promotion and direct recruitment quota which was not followed by the Departmental Authority and the promotions were made in excess of 50% promotion quota by utilizing the quota reserved for direct recruitment and that Service Tribunal erred in law in treating the appeal of respondent to be within limitation.

Civil Petitions Nos. 1282 to 1285 of 1998 ref.

Petitioner in person.

Mansoor Ahmed, Deputy Attorney-General for Respondent No.1 (in all Petitions except C. P. No. 1152 of 1999).

Fazal Elahi Siddiqui, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate-on-Record for Respondent/Caveator (in C.Ps. Nos. 1116, 1127, 1132 and 1152 of 1999).

Date of hearing: 18th April, 2000.

2000 S C M R 1302

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

REHMAT KHAN and others---Petitioners

versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary, Peshawar and others---Respondents

Civil Petitions Nos. 1759 to 1773, 1794 to 1797 and 1815 of 1999, decided on 20th April, 2000.

(On appeal from the judgments dated 27-9-1999 of the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.824, 639, 680, 681, 682, 683, 684, 685, 679, 687, 688, 703, 704, 707, 825, 634, 635, 686, 689 and 858 of 1997).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Civil servants were appointed as junior clerks after due formalities---Civil servants claimed to have successfully completed the training at the Staff Training Institute--­Allegation of the civil servants was that they were performing duties to the entire satisfaction of their superiors when suddenly they were dismissed from service after considerable time on the ground that their appointments had been found to be illegal, ab initio void and against the prescribed rules--­Validity---Supreme Court had remanded the case to Service Tribunal to be decided afresh considering the case of each individual appellant 'separately--­Service Tribunal had not dealt with the appeals individually but disposed of the appeals instead in a rolled up manner through a consolidated judgment in violation of the remand order of the Supreme Court---Supreme Court, in circumstances, converted the petitions for leave to appeal into appeals and by allowing the same, set aside the order of the Service Tribunal and again remanded the appeals to Service Tribunal for disposal afresh by examining the appeals of the appellants individually and separately on merits in accordance with law, in the light of observations made in the Supreme Court order---Supreme Court further observed that decision rendered by Supreme Court being binding on the Service Tribunal should have been implemented in letter and spirit and also directed that the appeals be disposed of within two months from the receipt of the present judgment of Supreme Court.

Abdullah and others v. The Director, Agriculture Engineering, N.W.F.P. and another Civil Petitions Nos. 81-P to 105-P of 1999 ref.

Mian Fasih-ul-Mulk, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

A. Sattar Khan, Addl. Advocate-General, N.-W.F.P. for Respondents.

Date of hearing: 20th April, 2000.

2000 S C M R 1305

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Qazi Muhammad Farooq, JJ

Maulana NUR-UL-HAQ---Petitioner

versus

IBRAHIM KHALIL ---Respondent

Civil Petition for Leave to Appeal No. 258-P of 1998, decided on 6th April, 2000.

(On appeal from the judgment dated 25-9-1998 of the Peshawar High Court, Peshawar, passed in Civil Revision No. 205 of 1995).

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

----0. VII, R. 11(d)---Rejection of plaint---Plaint can be rejected under O. VII, R. 11(d), C.P.C. if the suit is time-barred---Expression "barred by any law" occurring in O. VII; R. 11(d) includes the law 4 limitation.

Mumtaz Khan v. Nawab Khan and 5 others 2000 SCMR 53 and Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 31 & 32---Pre-emption suit arising from a registered sale deed--­Limitation---Computation---Provision with regard to issuance of public notice by the Registrar contained in S.32 of the N.-W.F.P. Pre-emption Act, 1987 has no nexus with the period of limitation prescribed by S.31 of the said Act for filing a pre-emption suit---Contention that if the Registrar fails to issue public notice envisaged by the provisions of S.32 of the Act the period of limitation was to be computed from the date of knowledge by the pre-emptor was misconceived.

The explicit and mandatory provisions of section 31 of N.W.F.P. Pre-emption Act, 1987 leave no room for doubt that in case of a sale effected through a registered sale deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply "casus omissus". A comparative study of sections 31 and 32 of the Act would make it manifest that the provision with regard to issuance of public notice by the Registrar contained in section 32 has no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of a sale transaction effected through a registered sale deed and is meant to provide an extra source of knowledge for making "Talb-i-Mowathibat" and an alternative time frame for making "Talb-i-Ishhad" in accordance with subsection (3) of section 13 of the Act.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 31 & 13(3)---Object of S.31, North-West Frontier Province Pre­emption Act, 1987---Provision of S.31 of the Act is meant to provide an extra source of knowledge for making "Talb-i-Mowathibat" and an alternate time frame for making "Talb-i-Ishhad" in accordance with S.13(3), N.-W.F.P. Pre-emption Act, 1987.

(d) Notrh-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 32 & 31---Provision of S. 32, N.-W.F.P. Pre-emption Act, 1987 is directory for want of a penal clause and cannot in any manner override or dilute the provisions of S.31 of the said Act which are mandatory by all standards--- Principles.' Section 32 of North-West Frontier Province Pre-emption Act, 1987 appears to be mandatory, in view of the expression "shall" used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is, directory and where the consequence is expressly mentioned the provision is mandatory.

As a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the effect shall be null and void.

In the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of section 32 of the N.-W.F.P. Pre-emption Act, 1987 being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards.

Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134 and Maj. Shaujat Ali v. Mst. Surrya Begum PLD 1978 SC (AJ&K) 118) ref.

(e) Interpretation of statutes--

---- Mandatory or directory nature of a statute---Determination---Principles.

No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory.

As a general rule a statute is understood to be directory when it contains matter merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following then the effect shall be null and void.

In the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory.

Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134 and Maj. Shaujat Ali v. Mst. Surrya Begum PLD 1978 SC (AJ & K) 118) ref.

(f) North-West Frontier Province Pre-emption Act (X of 1987)---

----S.31---Civil Procedure Code (V of 1908), O. VII, R. 11 (d)---Registration Act (XVI of 1908), S.47---Pre-emption suit arising from a registered sale deed---Limitation---Rejection of plaint ---Pre-emption suit having been brought beyond one hundred and-twenty days of registration of the sale-deed was time-barred and plaint of pre-emptor was rightly rejected---Registration of a sale-deed was a notice to public-at-large.

Mumtaz Khan v. Nawab Khan and 5 others 2000 SCMR 53; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134 and Maj. Shaujat Ali v. Mst. Surrya Begum PLD 1978 SC (AJ&K) 118 ref.

Qazi Ihsanullah Qtireshi, Advocate Supreme Court and Mian Muhammad Ismail Qureshi, Advocate-on-Record for Petitioner.

Hamid Farooq Durrani, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Respondent.

Date of hearing: 6th April, 2000

2000SCMR1312

[Supreme Court of Pakistan] , Present: Irshad Hasan Khan, C.J., Muhammad BashirJehangiri

and Nazim Hussain Siddiqui, JJ

FAQIR MUHAMMAD ---Appellant

versus

PAKISTAN through Secretary; Ministry of Interior and

Kashmir Affairs Division, Islamabad---Respondent.

Civil Appeal No. 877 of 1998, decided on 12th April, 2000.

(On appeal from the judgment dated 30-4-1998 of the Lahore High Court, Rawalpindi Bench passed in R.F.A. No. 108 of 1978).

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

----Ss. 20(c) & 21---Cause of action wholly or in part---Territorial jurisdiction---Tender of appellant was accepted at place "R" while the letter of acceptance of such tender was issued from place "G "---Respondent though had taken a plea about territorial jurisdiction, 'but in fact, had acquiesced in assumption of jurisdiction by the Civil Court at "R" and led the entire evidence and never seriously challenged the factum of jurisdiction before or after framing of issues except raising such plea in written statement---Cause of action in part, in circumstances, accrued at place "R" and objection about "territorial jurisdiction" could be waived in circumstances.

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

----S. 21---Objection to jurisdiction---No objection as to place of suing shall be allowed by any Appellate or Revisional Court unless there was "a consequent failure of justice" ---Provision of S. 21, C.P.C. provides statutory recognition that an objection about territorial jurisdiction can be waived--­Objection about "territorial jurisdiction" and objection about "competence of Court" being distinct, former could be waived and the latter could not be ignored.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Tanvir Bashir - Ansari, Deputy Attorney-General and Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 12th April, 2000.

2000 S C M R 1314

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

NAZIR AHMED ---Petitioner'

versus

KHALID NASIM and 11 others---Respondents

Criminal Petition for Leave to Appeal No. 596-L of 1999, decided on 2nd December, 1999.

(On appeal against the order dated 4-11-1999 of the Lahore High Court, Lahore in Criminal Original No. 1295-W/99).

Contempt of Court Act (LXIV of 1976)---

----Ss. 3 & 4.--Constitution of Pakistan (1973), Art. 204---Contempt of Court---High Court dismissed contempt application filed by petitioner against respondent---Contempt proceedings could not be resorted to for seeking personal vendetta---Where parties were at loggerheads with each other, law would take its own course.

K.M.A. Samdani, Advocate Supreme Court, M. Saleem Sahgal, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd December, 1999.

ORDER

SH. RIAZ AHMED, J.---The dispute in this case is between the two rival transporters. It was alleged that on the night between 6/7-10-1999, taking undue advantage of the status quo order dated 5-10-1999 the respondents alongwith others forcibly and illegally took possession of base No. 13 from M/s. Javed Group and Messrs Ali Barq Group. The matter was brought into the notice of the Administrator of the Bus Adda and complaint was lodged at the police station and an F.I.R. was also registered. A writ petition was also filed, which was dismissed and thereafter as against the violation of the status quo order, an application was filed for taking appropriate action for contempt of the Court, but on account of the dismissal of the writ petition, the High Court declined to interfere vide order impugned. Leave to appeal is sought against the aforesaid order.

1. After hearing the learned counsel at length, we are of the view that the contempt proceedings cannot be resorted to for seeking personal vendetta. The parties are at loggerheads with each other and the law will take its own course. We do not find any merit in this petition. The same is dismissed and leave to appeal is refused.

Q.M.H./M.A.K./N-3/S Petition dismissed.

2000SCMR1315

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD NAWAZ and others---Petitioners

versus

SHER ZAMAN through Legal Heirs---Respondent

Civil Petition No. 252 of 1999, decided on 19th November, 1999.

(On appeal from the judgment and decree dated 12-10-1998 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in R.S.A. No. 110 of 1983).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Petitioners were impleaded late in a regular second appeal in the High Court and admittedly their case was not at all even alluded to in the impugned judgment of the High Court--­Plea raised by the respondents could not be equated with consideration of petitioner's case by the High Court from any angle whatsoever--­Respondents could not make out a case to the effect that petitioners were a party either before the Trial Court or even before the First Appellate Court and that petitioner's case was attended to while delivering the judgment by the High Court---Supreme Court, in circumstances, converted the petition into appeal and remanded the case back to the High Court for its decision according to law.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Mian Inamul Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 19th November, 1999.

2000SCMR1315

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD NAWAZ and others---Petitioners

versus

SHER ZAMAN through Legal Heirs---Respondent

Civil Petition No. 252 of 1999, decided on 19th November, 1999.

(On appeal from the judgment and decree dated 12-10-1998 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in R.S.A. No. 110 of 1983).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Petitioners were impleaded late in a regular second appeal in the High Court and admittedly their case was not at all even alluded to in the impugned judgment of the High Court--­Plea raised by the respondents could not be equated with consideration of petitioner's case by the High Court from any angle whatsoever--­Respondents could not make out a case to the effect that petitioners were a party either before the Trial Court or even before the First Appellate Court and that petitioner's case was attended to while delivering the judgment by the High Court---Supreme Court, in circumstances, converted the petition into appeal and remanded the case back to the High Court for its decision according to law.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Mian Inamul Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 19th November, 1999.

2000 S C M R 1321

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

PROVINCE OF PUNJAB through Additional Chief

Secretary, Government of Punjab and another---Petitioners

versus

MUHAMMAD SIDDIQUE KHAN---Respondent

Civil Petition for Leave to Appeal No. 874-L of 1998, decided on 30th November, 1999.

(On appeal from the judgment/order dated 31-3-1998 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1680/94).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Regular inquiry not held---Service Tribunal had rightly concluded that dismissal of civil servant from service and subsequent reduction in punishment were violative of dictum laid down by Supreme Court in the case of Lal Muhammad and another 1980 SCMR 850 and thus both the orders were set aside---Petition for leave to appeal filed by the Department against the judgment of Service Tribunal being without merit, was dismissed in circumstances.

Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 ref.

Muhammad Sharif Butt, Advocate Supreme Court with Rao M. Yousaf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 30th November, 1999.

2000 S C M R 1322

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

COLLECTOR, LAND ACQUISITION, MARDAN

and others---Appellants

versus

Nawabzada M. AYUB KHAN and others---Respondents.

Civil Appeals Nos. 189 and 190 of 1999, decided on 16th November, 1999.

(On appeal from the judgment and decree dated 19-10-1998 passed by the Peshawar High Court, Peshawar in R.F.As. Nos. 40 and 41 of 1993).

Land Acquisition Act (I of 1894)----

----S. 23---Matters to be considered in determining compensation---Spirit of S.23, Land Acquisition Act, 1894, mandates that the Collector has to consider the potential value and future prospects of the land under acquisition in addition to one year average.

Abdul Samad Khan, Advocate Supreme Court/Advocate-on-Record for Appellants.

M. Zahoor Qureshi, Advocate-on-Record (absent) for Respondents.

Date of hearing: 16th November, 1999.

2000 S C M R 1326

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Ch. MUHAMMAD ISHAQ and others---Petitioners

versus

Ch. ABDUL GHANI---Respondent

Civil Appeal No. 1926-L of 1999, decided on 3rd December, 1999.

(On appeal from the judgment dated 11-11-1999 passed by the Lahore High Court, Lahore in Civil Revision No. 43 of 1999---petitioners and R.A.O. No. 241 of 1998--respondent).

Civil Procedure Code (V of 1908)---

----O. XL, R. 1---Constitution of Pakistan (1973), Art. 185(3)--­Appointment of Receiver---Parties were related inter se being successors-in­-interest of deceased ^and there was dispute with regard to the portion of property---High Court appointed Receiver for management of disputed property---Parties entered into an agreement---Petition for leave to appeal was converted into appeal and in the light of agreement between the parties Supreme Court directed the Receiver to hand over collection of money to the petitioners which would be distributed in accordance with the shares of the parties.

Farooq Bedaar, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Asghar Haider, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent.

Date of hearing: 3rd December, 1999.

2000 S C M R 1328

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Ch. Muhammad Arif, JJ

ZIKAR MUHAMMAD ---Petitioner

versus

Mrs. ARIFA SABIR and another---Respondents

Civil. Petition for Leave to Appeal No. 850 of 1999, decided on 6th December, 1999.

(On appeal from the judgment dated 23-4-1999 passed by Lahore High Court, Lahore in F.A.O. No. 227 of 1997).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Default In payment of rent-Striking off defence---Tenant defaulted in payment of rent wilfully and due to negligence---Rent Controller had rightly struck off the defence and decided the case on merits.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Constitution of Pakistan (1973), Art. 185(3)---Wilful default in payment of rent---Rent Controller struck off defence of the tenant and ordered him to hand over the vacant possession of premises to landlord--­High Court found that there was no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant and dismissed the appeal--­Validity---High Court having rightly concluded that defence of the tenant was rightly struck off by the Court below, no valid ground existed for interference in the order of High Court---Leave to appeal was refused accordingly.

Sheikh Anwar-ul-Haq, Advocate Supreme Court instructed by M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 6th December, 1999.

2000SCMR1331

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

SHAHSAWAR and 2 others---Petitioners

versus

THE STATE---Respondent

Jail Petition No. 186 of 1999, decided on 19th April, 2000.

(On appeal from the judgment dated 18-8-1999 passed by High Court of Sindh, Karachi in Special Anti-Terrorism Appeal No.22 of 1998 and Special Anti-Terrorism Jail Appeal No. 32 of 1998).

(a) Constitution of Pakistan (1973)--

----Art. 185---Appeal to Supreme Court---Supreme Court in appeal was not supposed to undertake discussion of the questions which were of academic nature unless a live issue had been brought before the Court for consideration.

(b) Penal Code (XLV of 1860)---

----Ss. 402-B, 365 & 34---Hijacking of aircraft---Offence of hijacking of air craft stood completed no sooner than the aircraft was diverted forcibly to a different destination.

(c) Penal Code (XLV of 1860)---

----Ss. 402-B, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7--­Constitution of Pakistan (1973), Art. 185(3)---Punishment for hijacking--­Award of sentence to the accused of hijacking of air craft ---Principles--­Quantum of sentence---Validity---Exercise of judicial discretion for awarding sentence conferred on the Court---Nature and scope---Trial Court as well as the Appellate Court had awarded sentence of death to the accused persons keeping in view the facts and circumstances of the case as well as evidence available on record---Superior Courts had shown indulgence in question of sentence very rarely that too, keeping in view the peculiar circumstances of the case namely when the case of grave injustice or failure of justice or miscarriage of justice was put up before the Court---Where, however, Trial Court as well as High Court had rightly awarded sentence of death to the accused persons in view of facts and circumstances as well as evidence available on record and no case had been made out for the interference of the Supreme Court, Supreme Court declined to grant leave to appeal against the quantum of sentence passed by two Courts below.

Under section 402-B, P.P.C. judicial discretion has been conferred upon the Court for the purpose of awarding sentence to the accused of hijacking aircraft. The Court is no doubt empowered to exercise discretion in awarding sentence i.e. either awarding death sentence or imprisonment for life, but this discretion is not of plenary nature as it has to be exercised keeping in view the facts and circumstances of each case. As far ax the offence of hijacking, is concerned it stands completed no sooner the aircraft is diverted forcibly to a different destination, admittedly, in the present case aircraft was scheduled from Turbat to Karachi via Gawadar but it was not allowed to land at Gawadar because after its take-over from Turbat the control of the plane was taken over by the hijackers, as they had entered into the cockpit and forced the pilot to divert the direction of plane towards Joudhpur India and they succeeded in doing so as the plane could not land at Gawadar and then the pilot by adopting disguising tactics took the flight towards Hyderabad (Pakistan) and then representing before the accused persons that on account of shortage of fuel the plane had landed at Bhoj Airport (India). The hijackers accepted the word of the pilot. However subsequently when they were apprehended then it transpired to them that they were in territory of Pakistan.

With reference to inflicting sentence to the accused in criminal cases, discretion always rests, with the Court seized of the matter. As far as the superior Courts are concerned they had shown indulgence in the quantum of sentence very rarely that, too, keeping in view peculiar circumstances of the case namely when the case of grave injustice or failure of justice or miscarriage of justice is put up before it.

Trial Court as well as Appellate Court had rightly awarded sentence of death to the accused persons in view of facts and circumstances as well as evidence available on record, therefore, no case was made out for interference by Supreme Court in the quantum of sentence.

Abdul Manan v. The State 1991 MLD 2462 distinguished.

AIR 1952 SC 14; AIR 1963 All. 501; AIR 1964 SC 986 and PLD 1972 Kar. 360 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 19th April, 2000.

2000 S C M R 1336

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

EASAB KHAN and 2 others---Petitioners

versus

THE STATE---Respondent

Criminal Petition No. 80-L of 1999, decided on 22nd November, 1999.

(On appeal from the order dated 12-1-1999 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 1 of 1999 in Criminal Appeal of 1017 of 1998).

Criminal Procedure Code (Y of 1898)---

----S. 426 (1-A)---Constitution of Pakistan (1973), Art. 185(3)---Suspension of sentence---Entitlement of the accused for suspension of their sentence and their release on bail under S. 426 (1-A), Cr.P.C. had not yet matured--­Issuance of direction to High Court by Supreme Court to dispose of the criminal appeal of accused within one month was not necessary as the accused could submit a Miscellaneous Application in their Criminal Appeal before the High Court for its early hearing if so advised---Leave to appeal was refused to accused by Supreme Court accordingly.

Muhammad Akram v. The State 1994 SCMR 277 ref.

Ch. Ghulam Hussain, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd November, 1999.

2000SCMR1338

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

IMTIAZ AHMED and others---Petitioners

versus

THE STATE---Respondent

Criminal Petition No. 383-L of 1996, decided on 22nd November, 1999.

(On appeal from the order of the Lahore High Court, dated 9-10-1996 passed in CrI.A. No. 285/92, Civil R. No.240/92 and M.R. 175/92).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Motive for the murder alleged by the prosecution was not believed by the two Courts below and the Court in this regard was never taken into confidence---Leave to appeal was granted by Supreme Court to the accused to consider whether in the circumstances extreme penalty of death awarded to him, was justified.

Aftab Farrukh, Senior Advocate Supreme Court and Tanvir Ahmed. Advocate-on-Record for Petitioner (in Criminal Petition No. 383-L of 1996).

Mahmood A. Qureshi, Advocate-on-Record for Petitioner (in Criminal Petition No. 16-L of 1996).

Date of hearing: 22nd November, 1999.

2000 S C M R 1340

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Ch. Muhammad Arif, JJ

Miss SABIRA HUSSAIN ---Petitioner

versus

CHAIRMAN, P.A.R.C. and others---Respondents

Civil Petition for Leave to Appeal No. 1517 of 1999, decided on 6th: December, 1999.

(On appeal from the judgment dated 17-8-1999 passed by Federal Service Tribunal, Islamabad in Appeal No. 228(11) of 1998). .

Constitution of Pakistan (1973)---

----Art. 212(3)---Case of civil servant had been remitted to Department by the Service Tribunal---Supreme Court having not found any ground for interference with the order of Service Tribunal refused to grant leave to appeal against order of Service Tribunal with observations that if eventually an adverse order was passed against the petitioner, she was at liberty to raise all the points available to her under the law including the points sought to be agitated during the course of arguments of petition for leave to appeal.

Raja M. Asghar; Advocate Supreme Court and Sheikh Riazul Haque, Advocate Supreme Court instructed by M.A. Zaidi, Advocate-on­ Record for Petitioner.

Respondent No. 3 in person.

Date of hearing: 6th December, 1999.

ORDER

After hearing Raja Muhammad Asghar, learned Advocate Supreme Court for the petitioner and perusing the impugned order as well as other material available on record, we see no ground to interfere with the impugned order remitting the case to the respondent-department at this stage. However, if, eventually, an adverse order is passed against the petitioner, she shall be at liberty to raise all the points available to her under the law including the points sought to be agitated during the course of arguments of this petition.

1. With the above observation, the petition is dismissed and leave declined.

Q.M.H./M,A,K,/S.-13/S Petition dismissed.

2000 S C M R 1341

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

BAKHSHA---Appellant

versus

ASSISTANT COMMISSIONER/ADDITIONAL SETTLEMENT

COMMISSIONER, SADAR SUB-DIVISION, FAISALABAD

and 10 others---Respondents

Civil Appeal No. 744 of 1994, decided on 15th November, 1999.

(On appeal from the judgment dated 6-1.2-1992 of the Lahore High Court, Lahore passed in Writ Petition No. 26/11 of 1983).

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Transfer of land---Claimant had to establish that he was in possession of the disputed parcel of land for the last 4 crops in terms of S.3 of the Act---Where the claimant had neither made the informers as party to the proceedings nor the land in question was "available" under S.3 of the Act and nor the proceedings relating to the land were pending in line with S.3 of the Act, the very basis of the claim for retention of such land stood knocked out.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Transfer of land---Chief Settlement Commissioner could pass a specific order in a given case that the land cancelled as result of Mukhbari be given to the Mukhbar in lieu of his outstanding units---Mukhbari application having been accepted, applicant earned vested right to allotment of land in question and such land stood finally settled upon the applicant and thus was not available property for auction/transfer.

Ch. Qadir Bakhsh, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate-on-Record (absent) for Appellant.

Ch. Muhammad Hasan, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Respondents. .

Date of hearing: 15th November, 1999.

2000 S C M R 1341

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

BAKHSHA---Appellant

versus

ASSISTANT COMMISSIONER/ADDITIONAL SETTLEMENT

COMMISSIONER, SADAR SUB-DIVISION, FAISALABAD

and 10 others---Respondents

Civil Appeal No. 744 of 1994, decided on 15th November, 1999.

(On appeal from the judgment dated 6-1.2-1992 of the Lahore High Court, Lahore passed in Writ Petition No. 26/11 of 1983).

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Transfer of land---Claimant had to establish that he was in possession of the disputed parcel of land for the last 4 crops in terms of S.3 of the Act---Where the claimant had neither made the informers as party to the proceedings nor the land in question was "available" under S.3 of the Act and nor the proceedings relating to the land were pending in line with S.3 of the Act, the very basis of the claim for retention of such land stood knocked out.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Transfer of land---Chief Settlement Commissioner could pass a specific order in a given case that the land cancelled as result of Mukhbari be given to the Mukhbar in lieu of his outstanding units---Mukhbari application having been accepted, applicant earned vested right to allotment of land in question and such land stood finally settled upon the applicant and thus was not available property for auction/transfer.

Ch. Qadir Bakhsh, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate-on-Record (absent) for Appellant.

Ch. Muhammad Hasan, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Respondents. .

Date of hearing: 15th November, 1999.

2000 S C M R 1347

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD YOUSAF---Petitioner

versus

BASHIR AHMAD and ~ others---Respondents

Criminal Petition for Leave to Appeal No. 461-L of 1997, decided on 23rd November, 1999.

(On appeal against the order dated 17-9-1997 of the Lahore High Court, Multan Bench, Multan in Crl. A. No. 36/93).

Penal Code (XLV of 1860)

----Ss. 302(c), 337-A(i) & 337-F(i)---Constitution of Pakistan (1973), Art. 185(3)---Murder was not premeditated and the occurrence was a sudden affair---Motive for the occurrence as narrated by the prosecution was not worthy of belief---Complication having developed during the surgical operation by the Doctor causing inflammation of the brain, had contributed towards the death of the deceased--- "Phowra" with which injury was caused to the deceased was not a formidable weapon and the blow was not repeated by the accused---Impugned judgment having caused no failure of justice did not call for any interference by Supreme Court---View taken by High Court was in consonance with law---Leave to appeal was declined to complainant in circumstances.

Ch. M. Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd November, 1999.

2000 S C M R 1352

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman, Lahore and 4 others---Petitioners

versus

FAKHAR-UZ-ZAMAN---Respondent

Civil Petition for Leave to Appeal No. 1062-L of 1997, decided on 3rd February,, 1998.

(On appeal from the judgment of the Lahore High Court passed in Writ Petition No-6331 of 1996 on 12-5-1997).

Constitution of Pakistan (1973)---

----Art.185(3)---Educational institution---Unfair means---Candidate was disqualified for three terms---High Court in exercise of Constitutional jurisdiction had set aside the disqualification---Validity---High- Court distinguished the facts of the case of Ahmed and 3 others reported as PLD 1981 SC 464 and came to the conclusion that it was not denied by the Authorities that beyond lodging the complaint, even examination of the complainant was not gone ahead, muchless its corroboration sought from any other source-Leave to appeal was refused by Supreme Court.

Ahmad and 3 others v. Vice-Chancellor, University of Engineering and Technology and another PLD 1981 SC 464 ref.

Sh. Maqbool Ahmad, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Shehzad Shaukat, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Respondent/Caveator.

Date of hearing: 3rd February, 1998.

2000 S C M R 1354

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Wajihuddin Ahmed, JJ

BASA INTERNATIONAL and others---Petitioner

versus

SINDH EMPLOYEES' SOCIAL SECURITY

INSTITUTION and others---Respondents

Civil Petitions Nos.302-K, 336-K to 338-K of 1998, heard on 16th July, 1998.

(On appeal from the common judgment, dated 9-2-1998 passed in Miscellaneous Appeals No.34 of 1996, 37 of 1996, 20 of 1996 and 28 of 1996 respectively). '

West Pakistan Minimum Wages for Unskilled Workers Ordinance (XX of 1969)---

----S.7 [as amended by West Pakistan Minimum Wages for Unskilled Workers (Amendment) Act (IX of 1993)]---Sindh Employees. Special Allowance Payment Act (X of 1986), S.7---Constitution of Pakistan (1973). Art. 185(3)---Social security contribution of workers not falling within the definition of "unskilled workers"---Leave to appeal was granted by Supreme Court to consider the questions as to whether social security contribution under Sindh Employees' Social Security Ordinance, 1965, could be computed on the basis of West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969, even in respect of the workers not falling within the definition of "unskilled workers" and whether special allowance paid to workers in pursuance of Sindh Employees Special Allowance Payment Act, 1986, could be regarded as part of wages for the purpose of computing such contributions notwithstanding exemption granted by S.7, Sindh Employees Special Allowances Payment Act, 1986.

Noor Muhammad, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioners (in C.P. No. 302-K of 1998). Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners (in both Petitions).

Nemo for Respondents.

Date of hearing: 16th July, 1998.

2000 S C M R 1355

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

ABDUR REHMAN---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.457-L of 1997, decided on 4th February, 1998.

(On appeal from the judgment of the Lahore High Court, dated 18-11-1997 passed in Criminal Appeal No.56 of 1994).

Penal Code (XLV of 1860)---

----S.320---Constitution of Pakistan (1973), Art. 185(3)---Death by rash and negligent driving---High Court reduced the sentence of six years' imprisonment awarded by Trial Court to four years' imprisonment but maintained the payment of Diyat---Leave to appeal was granted by Supreme Court to consider whether the High Court had appraised the evidence on record with a view to determining the question of rash and negligent driving by the accused on the date of occurrence.

Raja Mehmood Akhtar, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for the State.

4th February, 1998,

2000SCMR1356

[Supreme Court of Pakistan)

Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

MUHAMMAD FARRUKH SIDDIQUI---Petitioner

versus

RTAZ AHMAD KHAN and another---Respondents

Civil Petition No.703-K of 1998, decided on 21st December, 1999.

(On appeal from the judgment of High Court of Sindh, dated 17-9-1998 passed in F.R.A. 525 of 1994).

Sindh Rented Premises Ordinance (XVH of 1979)---

----S. 13---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Shop in respect whereof ejectment was sought by the respondent landlord was jointly owned by respondents Nos. l & 2 and it was stated in the ejectment application that the shop was required for personal and bona fide need of respondent No. l as well as for the husband of respondent No.2---Power of attorney executed in favour of husband of respondent No.2 contained a clause which authorised him to file suits and applications and record showed that respondent No.2 had filed the ejectment application under her own signatures as well as in capacity of guardian of respondent No.1, who was described as a minor---Contention of tenant that husband of respondent No.2 could not institute the ejectment case as the power of attorney executed in his favour did not authorise him to file ejectment case was devoid of any force---Respondent had examined her attorney and his evidence was found by the two Courts below as consistent with the averments made in .e application---No case for interference with the two concurrent judgments of the Courts below having been made out, petition for leave to appeal was dismissed by Supreme Court.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st January, 1999.

2000 S C M R 1359

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch, Muhammad Arif, :JJ

Agha KAMRAN ZAMAN KHAN---Petitioner

versus

NASEER AHMAD QURESHI by Legal Heir

and 6 others---Respondents

Civil Petition for Leave to Appeal No. 1202-L of 1997, decided on 3rd February, 1998.

(On appeal from the order, dated 16-7-1997 passed by Lahore High Court, Lahore in W. P. No. 11178 of 1997). .

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Tentative rent fixed by Rent Controller under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Validity---Ejectment petition was pending before the Rent Controller and the tenant was within his right to lead whatever evidence he wanted to for establishing on record that the rent was less than the amount of tentative rent---In the event of the Rent Controller determining the rent at any other amount less than already fixed as tentative rent, the tenant was entitled to refund of the amount deposited in excess thereof.

Abdul Majeed v. Wazir Begum 1996 SCMR 1681 ref.

Siaf-ul-Haq Ziay, Advocate Supreme Court instructed by M.A Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd February, 1998

2000 S C M R 1360

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi

and Ch. Muhammad Arif, JJ.

Haji MUHAMMAD BENARAS---Petitioner

verses

MUHAMMAD AYAZ and others---Respondents

Criminal Petition No. 106 of 1996, decided on 9th December, 1997

(On Appeal from the judgment, dated 12-3-1996 of the Peshawar High Court, Circuit Abbottabad passed in Cr.A. No.34 of 1994 (M.R. No.2 of 1994) and Criminal Revision No.29 of 1994).

Penal Code (XLV of 1860)--- .

----S.302(b)---Constitution of Pakistan (1973), Art. 185(3)---Blind murder--­Night occurrence---Identification of accused by voice---Oral dying declaration---Trial Court awarded capital punishment whereas High Court acquitted the accused in appeal---Leave to appeal was granted by Supreme Court to consider as to whether in the facts and circumstances of the case the question of identification of the accused did require any further probe than the hearing of voice of the accused who was already known to prosecution witnesses; whether the case of prosecution had not been considered in its true perspective in that witnesses in the case had no enmity with the accused who had been awarded capital punishment by Trial Court and whether reliance placed by Trial Court on oral dying declaration of deceased before prosecution witnesses could be justifiably rendered ineffective by High Court.

Sardar Muhammad Ishaq Khan, Advocate Supreme Court with Ejaz Muhammad Khan. Advocate-on-Record for Petitioner.

Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 1.

Date of hearing: 9th December, 1997.

2000 S C M R 1364

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid, Mamoon Kazi

and Wajihuddin Ahmed, JJ

ISLAMIC REPUBLIC OF PAKISTAN through

Secretary, Ministry of Defence, Government of

Pakistan, Islamabad and another---Petitioners

versus

Messrs OMAR NICHOLAS & COMPANY (PAKISTAN)---Respondent

Civil Petition No.600-K of 1998, decided on 24th November, 1998.

(On appeal from the order of. the High Court of Sindh dated 26-2-1998 passed in H. C. A. No. 186 of 1995).

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

----O. VII, R. 2---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of money---Courts below had determined the issue in the suit in favour of respondents (plaintiffs) with sufficient reason---Supreme Court declined interference---Petition for leave to appeal dismissed in circumstances.

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

----O. VII, R.2 & O.XIV, R.1---Partnership Act (IX pf 1932), S. 59--­Constitution of Pakistan (1973), Art. 185(3)---Suit for recovery of money--­Maintainability---Non-framing of issues---Effect---Objection was raised in the written statement regarding maintainability of the suit and non­-registration of partnership---No such issues were framed and neither the said objections appeared to have been urged before the Trial Court (High Court) nor any findings had been given on the said issues---Judgment of Appellate Court (Division Bench of High Court) was also silent about such objection--­Held, questions which were not urged before the High Court, could not be considered for the first time by the Supreme Court---Petition for leave to appeal was dismissed.

S. Tariq Ali, Standing Counsel and A.A. Siddiqui, Advocate-on-­Record for Petitioners.

Abdul Rauf, Advocate Supreme Court and M. S. Ghaury, Advocate-on-Record for Respondent.

Date of. hearing: 24th November, 1998.

2000 S C M R 1366

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi and Ch. Muhammad Arif, JJ

KHALID PERVEZ---Petitioner

verses

SECRETARY, ESTABLISHMENT DIVISION

and 51 others---Respondents

Civil Petition No.377 of 1996, decided on 11th December, 1997.

(On appeal from the judgment, dated 5th May, 1996 passed by the Federal Service Tribunal in Appeal No. 144(R) of 1996).

Constitution of Pakistan (1973)---

----Art.212(3)---Promotion---Civil servant was not treated as a Member of Economists Group---Departmental appeal as well appeal before Service Tribunal were turned down for the reason that the advice of Establishment Division and judgment of Supreme Court in case of Federation of Pakistan v. Muhammad Akram and others (1995 SCMR 1647) could not form basis of a precedent in such other cases---Validity---Leave to appeal was granted to consider the efficacy or otherwise of the observations made by the Service Tribunal for non-suiting the civil servant on both the points i.e. limitation and applicability of Supreme Court's judgment reported in 1995 SCMR 1647 to the case of the civil servant.

Federation of Pakistan through Secretary, Planning and Development Division, Islamabad v. Muhammad Akram and others 1995 SCMR 1647 ref.

Petitioner in person. Nemo for Respondents.

Date of hearing: 11th December, 1997.

2000 S C M R 1368

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. CJ., Mamoon Kazi and Ch. Muhammad Arif, JJ

Mian YAMIN-UL-HAQ---Petitioner

verses

MUNICIPAL COMMITTEE, ABBOTTABAD, and others---Respondents

Civil Petition No.890 of 1997, decided on 18th December, 1997.

(On Appeal from the judgment, dated 11-6-1997 of Peshawar High Court, Abbottabad Bench passed in W.P. No.30 of 1990).

North-West Frontier Province Public Property (Removal of Encroachment) Act (V. of 1977)---

----S.12---Constitution of Pakistan (1973), Art.185(3)---Removal of encroachment on public property---Resolving of dispute by Tribunal constituted under S.12 of North-West Frontier Province Public Property (Removal of Encroachment) Act, 1977---Jurisdiction---Leave to appeal was granted by Supreme Court to consider the questions whether the Tribunal was possessed of any jurisdiction to resolve dispute between the petitioner and Municipal Committee, having a direct bearing on the question of ownership; whether High Court had not fallen into an error of jurisdiction in not considering the transfer of the disputed property to the petitioner by the then Settlement. Department and whether the Municipal Committee could at all start any adverse action against the petitioner/transferee from the Settlement Department, without first issuing appropriate process against the petitioner for the alleged failure on his part to pay the lease money to the Municipal Committee and that too before Civil Courts of plenary jurisdiction.

Mushtaq Ali Tahirkheli, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 18th December, 1997

2000SCMR1371

[Supreme Court of Pakistan]

Present: Mamoon Kazi, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ.

EVACUEE TRUST PROPERTY BOARD through Assistant Administrator, Evacuee Trust Property Board at Mirpurkhas --- Petitioner

versus

ABDUL AZIZ KHAN and 6 others---Respondents

Civil Petition for Leave to Appeal No.739-K of 1998, decided on 8th June, 1999.

(On appeal against the judgment and order dated 12-10-1998 of the High Court of Sindh, Hyderabad Circuit, Hyderabad in R.A. No.72 of 1996).

(a) Evacuee Trust Properties (Management and Disposal ) Act (X111 of 1975)--

----S. 14---Bar of jurisdiction---Requirement---Disputed property having not been treated as evacuee trust property, bar of jurisdiction could not be pressed into service---Party claiming bar of jurisdiction ought to have proved through cogent evidence that the property in question. was attached to a charitable trust and as such no suit was maintainable in respect thereof--­Petitioner-department concerned with the management of the property having failed to bring even an iota of evidence to prove the property in question to be attached to a trust, its objection as to the judgment and decree passed by Civil Court being void was not sustainable in circumstances.

(b) Limitation Act (IX of 1908)---

----S. 5---Civil Procedure -Code (V of 1898), S.115---Delay in filing of revision ---Condonation of delay---Reason that file and record of the case was misplaced was not sufficient ground for condoning the delay.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner. Haji Muhammad Ismail Memon, Advocate Supreme Court for Respondents.

Date of hearing: 8th June, 1999

2000SCMR1374

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi.

and Ch. Muhammad Arif, JJ

Syed HASSAN MEHDI---Petitioner

verses

SECRETARY, MINISTRY OF HEALTH

and others---Respondents

Civil Petition No. 147 of 1996, decided on 19th December, 1997.

(On appeal from judgment, dated 16-1-1996 of the Federal Service Tribunal, Islamabad passed in Appeal No. 101(K) of 1995).

Government Servants (Efficiency and Discipline) Rules, 1973---

----R.5(i)(iii)(b) & (iv)----Constitution of Pakistan (1973), Art.212(3)--­Dismissal from service---Failure to provide reasonable opportunity of showing cause---Leave to appeal was granted by Supreme Court to consider the questions; whether the civil servant, was provided a reasonable opportunity of showing cause against the proposed action within the contemplation of both Rr.5(1)(iii)(b) & 5(1)(iv) of Government Servants (Efficiency and Discipline) Rules, 1973 and whether the civil servant had not made out a case for provision of relevant material to him with a view to preparing his reply to the show-cause notice and if so, whether the proceedings taken against him at the departmental level as also before the Federal Service Tribunal were not.liable to be set aside.

Abdul Wahid Choudhary, Advocate Supreme Court for Petitioner.

Maulvi Anwarul Haq, Deputy Attorney-General (on Notice) .for Respondents.

Date of hearing: 19th December, 1997. .

2000 S C M R 1376

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Abdur Rehman Khanand Ch. Muhammad Arif, JJ

MUHAMMAD IQBAL---Appellant

verses

ASSISTANT COMMISSIONER, JARANWALA and another---Respondents

Civil Appeal No. 149 of 1995, decided on 16th January, 1998.

(On appeal from the judgment, dated 3-7-1993 passed by the Punjab Service Tribunal in Appeal No.580 of 1991).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Leave to appeal was granted to determine; whether case of civil servant was the one in which an inquiry should have been held before imposing penalty of dismissal from service.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----S. 4---Dimissal from service---Inefficiency and misconduct ---Proof--­Authorised Officer recorded such findings without making reference to any such instance of alleged incompetence throughout unblemished record of service of the civil servant---Validity---Single instance of any incorrect behaviour of individuals in any discipline whatsoever could hardly furnish a ground for holding those civil servants guilty of extreme in competency.

M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691 ref.

(c) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4---Constitution of Pakistan (1973), Art.212---Dismissal from service---Inefficiency and misconduct, charge of---Civil servant was Patwari and mutation of State land was entered by him in favour of private person on the basis of transfer order issued by Deputy Settlement Commissioner--­Departmental proceedings were initiated against the civil servant for making that entry and he was dismissed from service---Validity---Conduct of the civil servant in the matter ~ of entering the disputed mutation in the appropriate register with a note in red ink was not at all blameworthy because the same had sanction of law behind it---Entry of disputed mutation having been made by the civil servant in performance of his duties in terms of mandate contained in S.42 of West Pakistan Land Revenue Act, 1967, could not but be held to have been made by the civil servant in' the performance of his official duties, bona fide---Dismissal order of civil servant and judgment of Service Tribunal were set aside---Civil servant was. re-instated in service with back benefits.

A.U..Musarrat v. Government of West Pakistan PLD 1977 SC 24; M.A. Rehman v. Federation of Pakistan and others 1998 SCMR 691; Alamgir and another v. Divisional Forest Officer 1991 SCMR 1523 and Alamgir and another v. Divisional Forest Officer, Multan 1993 SCMR 603 ref.

Syed Jamshed Ali, Advocate Supreme Court for Appellant.

Sh. Altaf Elahi, Additional Advocate-General, Punjab for Respondents.

Date of hearing: 16th January, 1998.

2000 S C .M R 1383

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

GOVERNMENT OF SINDH through Advocate-General---Petitioner

versus

SIKANDER ALI ---Respondent

Civil Petition No-539-K of 1998, decided on 27th January, 1999.

(On appeal from the judgment dated. 12-5-1998 of the Sindh Service Tribunal passed in Appeal No.73 of 1996).

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----R. 5(4)(b)---Constitution of Pakistan (1973), Art. 212(3)---Misconduct--­Imposition of major penalty of dismissal from service on Assistant Mukhtiarkar---Leave to appeal was granted by Supreme Court to consider whether the Service Tribunal was right in upsetting the judgment of Provincial Board of Revenue dismissing the Assistant Mukhtiarkar despite his admission regarding his signatures on the concerned certificate according to which it had been wrongly certified that certain persons were owners of land measuring 1800 acres.

Muhammad Saleem Samo, Additional Advocate-General with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 27th January, 1999.

2000 S C M R 1387

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., A6dur Rehman Khan

and Ch. Muhammad Arif, JJ

HASSAN AKHTAR KIRMANI, FORMERLY FIELD

INVESTIGATING OFFICER, P.N.C.B., LAHORE---Appellant

verses

CHAIRMAN, MINISTRY OF INTERIOR AND NARCOTICS

CONTROL, PAKISTAN NARCOTICS CONTROL BOARD, GOVERNMENT OF PAKISTAN and another---Respondents

Civil Appeal No.866 of 1995, decided on 13th January, 1998.

(On appeal from the judgment, dated 7-2-1994 passed by the Federal Service Tribunal in Appeal No.202(L) of 1993).

(a) Constitution of Pakistan (1973)---

----Art.212(3)---Dismissal from service---Civil servant was an employee of Pakistan Narcotics Control Board---Raid was conducted and 4 Kgs. of Charas and 50 grams of heroin was recovered from the cupboard of said civil servant---Leave to appeal was granted by Supreme Court to consider the contention that the raid was conducted in absence of the civil servant during mid-night hours; that proper enquiry as contemplated under the Service Rules was not conducted against him which resulted in miscarriage of justice and that possession of such small quantity of contraband material from the cupboard of the civil servant was not so serious as to entail dismissal of his service.

(b) Service Tribbnals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Allegation of recovery of narcotics from the cupboard of the civil servant---Civil servant during departmental inquiry was found guilty and he was dismissed from service---Appeal before Service Tribunal was also unsuccessful---Validity---Detailed inquiry, which preceded the conclusion of departmental proceedings against the civil servant, had not been shown to be deficient on the touchstone of the rules applicable in the matter---Imposition of punishment on the civil servant in the light of inquiry report and recommendation of Authorised Officer, who had also granted personal hearing to him, also fell in the same category---Civil servant, throughout the proceedings did not deny availability of 4 Kgs. of. Charas and 50 grams of heroin in excess of the accounted for quantities---Allegation against the civil servant that he had failed to deposit the narcotics in "Malkhana", which was essential under the rules, was also not denied by him---Appeal of civil servant being without merit was dismissed.

M. Saleem Chaudhry, Advocate Supreme Court for Appellant. Mian Tariq Mahmood, Deputy Attorney-General for Respondent.

Date of hearing: 13th January, 1998.

2000SCMR1391

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

ABDUL MAJID---Petitioner

verses

Syed MUHAMMAD ALI SHAMIM and 10 others---Respondents

Civil Appeal No.227 of 1994, decided on 5th November, 1997.

(On Appeal from the judgment, dated 8-2-1994 of the Lahore High Court, Lahore passed in R.S.A. No.61 of 1993).

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

----O.XLII, R.1---Application of O.XLII, C.P.C.---Provision of O.XLII, R.1, C.P.C. provides for application of rules of O. XLI, C.P.C, to appeals from appellate decrees.

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

----O.XLI, R.23---Cases, remanding of by Appellate Court---Precondition--­Case is remanded when the decree is reversed in appeal and a re-trial is considered necessary.

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

----S. 100 & O. XLI, R.23---Constitution of Pakistan (1973), Art.185(2)(d) & (e)---Second appeal---Case not remanded for re-trial---Scope---Decree of Trial Court t was not reversed by Lower Appellate Court and the material which was not considered by the Lower Appellate Court was considered by High Court threadbare, while reversing the judgments of the Courts below--Appellant did not make any cross-objections seeking production of additional evidence in relation to any issue resolved against him by the Trial Court--­Second appeal was disposed of by considering evidence on record as sufficient and re-trial was not considered "necessary" by the High Court--­Judgment in appeal was supported by cogent reasons and the same were duly supported by material available on record---Appeal was dismissed by Supreme Court accordingly.

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

----O.VI, R.2 & O.VIII, R.1---Pleadings---Using of written statement as evidence---Validity---Pleadings are not evidence by themselves and statement of defendant in written statement cannot be used as evidence, when amounting to admission of plaintiff's pleas, without examination of the concerned party in its support.

Khairul Nisa v. Muhammad Ishaque and 2 others PLD 1972 SC 25 and Muhammad Ishaq v. Erose Theatre and others PLD 1997 SC 109 ref.

Ch. Khurshied Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioners.

S. Raza Hussain Shamsi, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No. 1.

Respondents Nos.2 to 11:- Ex parte.

Date of hearing: 5th November, 1997.

2000 S C M R 1405

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui

and Rana Bhagwan Das, JJ

KARIM BUX---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 11-K of 2000, decided on 26th April, 2000.

(On appeal from the order dated 23-12-1999 of the High Court of Sindh,. Hyderabad Circuit, passed in Cr.B.A. No.750 of 1999).

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

---Ss. 497 & 498---Penal Code (XLV of 1860), Ss.302, 201 & 114/34--= Bail, grant or refusal---Exercise of discretion by Court---Scope---Grant or refusal of bail essentially depends upon the facts of each case and no inflexible rule can be laid down for the exercise of discretion.

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

----Ss. 497 & 498---Bail---Grant or refusal---Considerations for grant of bail end cancellation of bail are altogether different in law.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 201 & 114/34--­Constitution of Pakistan (1973), Art. 185(3)---Bail, refusal of---Accused absconding---High Court had taken into consideration all pleas raised by accused who had been at large for the last more than five months and despite the rejection of his prayer for bail throughout for the last four months, he -had not been touched by the local police, which circumstance itself reflected the fact that local police did not appear to be unfavourably disposed towards him---Accused, in all fairness after the rejection of bail by the High Court, ought to have surrendered before the Trial Court but instead he had been watching the proceedings of the Court and remaining away from the Court--­Supreme Court, in circumstances, declined interference in the order of High Court refusing the bail to accused.

Jamaluddin v. State 1985 SCMR 1949; Raza Muhammad Sial v. State 1988 SCMR 1223; Meeran Bux v. State PLD 1989 SC 347 and State v. Mukhtar Ahmad Awan 1991 SCMR 322 ref.

Abdul Mujeeb Pirzada, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 26th April, 2000.

2000 S C M R 1408

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Ch. Muhammad Arif, JJ

Mst. SHAHBAZ HAMID---Petitioner

verses

SOHAIB KHAN and 5 others---Respondents

Civil Petition for Leave to Appeal No.645-L of 1997, decided on 28th January, 2000.

(On appeal from the order passed by the Lahore High Court, Lahore in W.P. No.3222 of 1997, dated 16-2-1997).

Restriction Ordinance (VI of 1959)---

----S. 13----Constitution of Pakistan (1973), Art. 185(3)=--Ejectment of ejectment proceedings by the tenant---Tenant relied on agreement to sell executed in her favour by the landlord qua the suit property---Rent Controller allowed the ejectment application and the order was upheld by the Lower Appellate Court---Constitutional petition filed by the tenant against such order was dismissed by High Court in limine--­Validity---Tenant had been adopting such devices as Would prolong the proceedings and delay of the disposal of the ejectment application---Tenant having failed to take the matter to the Courts of plenary jurisdiction for the purposes of obtaining specific performance of the alleged contract, leave to appeal was refused.

Muhammad Saleem Shahnazi, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th January, 1998.

2000SCMR1410

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Kamal Mansur Alam, JJ

MUHAMMD JAVED AKHTAR---Petitioner

versus

HUMA NAZ and another---Respondents

Criminal Petition No.34-K of 1999, decided on 20th July, 1999., .

(On appeal from the order, dated 11=5-1999 passed by .the High Court of Sindh in Criminal Miscellaneous Application No. 185 of 1999).

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan (1973), Art.185(3)---Custody of minor---Children were of tender age and the custody was handed over to mother of the minors---High Court in its judgment directed the parents of the minors to initiate appropriate proceedings before the concerned: Guardian Judge who was cautioned not to be influenced by any observation made therein by the High Court---Both the children being of tender age, lap of mother for their nurture could not be disturbed---Order passed by High Court could not be interfered with---Leave to appeal.was refused.

A.A. Siddiqui, Advocate-on-Record for Petitioner.

Respondent No. 1 in person.

Ainuddin Khan, Additional Advocate-General, Sindh for Respondent No.2.

Date of hearing: 20th July, 1999.

2000SCMR1413

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Mamoon Kazi, JJ

NABIB INDUSTRIES (PVT.) LTD. ---Petitioner

versus

STATE LIFE INSURANCE CORPORATION OF

PAKISTAN---Respondent

Civil Petition No. 171-K of 1997, decided on 2nd January, 1998.

(On appeal from the judgment of the High Court of Sindh dated 9-4-1997 passed in F.R.A. No.31 of 1995).

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

----S. 8---Constitution of Pakistan (1973), Art. 185(3)---Fair rent--­Determination of fair rent by the Rent Controller---Factors to be taken in view---Leave to appeal was granted by Supreme Court to consider as to whether existence of all the factors enumerated in S. 8, Sindh Rented Premises Ordinance, 1979 were essential for determination of fair rent by the Rent Controller and whether High Court was justified in fixing the fair rent of the premises in question from Rs.36.75 per month to Rs.4,000 per month.

Badrudduja Khan, Advocate Supreme Court for Petitioner.

Siddiq Mirza, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 2nd January, 1998.

2000SCMR1415

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

BOARD OF INTERMEDIATE AND SECONDARY

EDUCATION, LAHORE and another---Petitioners

verses

HASSAN SULEMAN---Respondent

Civil Petition For Leave to Appeal No. 1616-L of 1997, decided- on 4th February, 1098.

(On appeal from the judgment of the ,Lahore High Court passed in C. R. No. 1639-D of 1997 on 14-10-1997).

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)-----

----Ss.29 & 31---Constitution of Pakistan (197.3), Art.185(3)---Date of birth of candidate for examination, correction of---Contention raised by Education Board was that no act done, order made or proceedings taken by the Board could be called in question in any Court---Validity---All Courts below on the basis of evidence hail found that date of birth of the candidate was incorrectly recorded ---Physio-chemistry of birth of two brothers, born on different dates could not be lumped together for the purpose of determination of their date of birth---Leave to appeal was refused.

Muhammad Rafiq v. The Board of Intermediate and Secondary Education and others 1983 SCMR 1024 distinguished.

Sh. Maqbool Ahmad, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 4th February, 1998.

2000SCMR1417

[Supreme Court of Pakistan

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

Dr. Miss HARRA ABDULLAH, PROFESSOR OF PAEDIATRICS (RETD.) F.J. MEDICAL COLLEGE, LAHORE and 3 others---Petitioners

verses

LAHORE DEVELOPMENT AUTHORITY, LAHORE through Director-General and 4 others---Respondents

Civil Petition for Leave to Appeal No.432(L) of 1997, decided on 10th February, 1998.

(On appeal from the judgment, dated 11-2-1997 passed by Lahore High Court, Lahore in I.C.A. 254 of 1995).

Lahore Development Authority Building Regulations, 1984.--

----Regln. 96(A)(4)---Constitution of Pakistan (1973), Art.185(3)--­Commercialization of residential property---Failure to submit "no-objection certificates" from the owners of adjoining properties---Rejection of earlier application for commercialization---Effect---High Court while disposing of Intra-Court Appeal found that "no-objection certificate" was not required in respect of commercialization of the properties---Validity---High Court had rightly concluded in their finding, recorded after perusing the material available on record as also after hearing the parties in support of their respective cases, that the owner of property could not avail of the facility of commercialization of her property on account of her failure to deposit the fee in that regard---Leave to appeal was refused.

Munir Ahmed Bhatti, Advocate Supreme Court instructed by Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Tanvir Ahmad, Advocate-on-Record for Respondent No.3.

Date of hearing: 10th February, 1998.

2000 S C M R 1421

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

MUHAMMAD RAMZAN and others---Petitioners

versus

MAQBOOL AHMAD and 2 others ---Respondents

Criminal Petitions Nos.388-L and 467-L of- 1998, decided on 23rd December, 1999.

(On appeal from the judgment of .the Lahore High Court, Lahore dated 1-8-1998 passed in Criminal Appeal No.896 and Crl. Rev. No.712 of 1992).

Penal Code (XLV of 1860)---

----Ss. 302(c) & 337-F(ii)---Constitution of Pakistan (1973), Art. 185(3)--­High Court while deciding the matter had kept in view the pros and cons of the case and its judgment appeared to be just, fair and proper which had been passed in line with the principles laid down by Supreme Court to ensure fair administration of justice---Occurrence had taken place at the spur of the moment without premeditation---No case for interference by Supreme Court was made out---Leave to appeal was declined in both the petitions in circumstances.

Mian Qurban Sadiq Ikram, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner (in Criminal Petition No.388-L of 1998).

Ch. Muhammad Saeed, Advocate Supreme Court with Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioners (in Criminal Petition No.467-L of 1998).

Nemo for the State (in Criminal Petition No. 467-L of 1998).

Date of hearing: 23rd December, 1999,

2000 S C M R- 1425

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MUHAMMAD LATIF through Legal Heirs---Petitioner

versus

FAYYAZ AHMAD and others---Respondents

Civil Petition No. 1142-L of 1998, decided on 13th December, 1999.

(On appeal from the judgment and order dated 24-4-1998 and 20-6-1998 of the Lahore High Court, Lahore passed in Writ Petition No.354/R/1998).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---High Court accepted the Constitutional petition with observations that counsel of the respondent had stated that he would have no objection in case the Constitutional petition was accepted and order impugned therein was declared to be without lawful authority and of no legal effect---Respondents moved review application before the High Court pleading that their counsel was surprised when he came to know about the contents of the High Court order and in fact assured that he never conceded or made any statement that he would have no objection if the order impugned in the Constitutional petition was declared .to be without lawful authority and that Constitutional petition was liable to be dismissed----High Court dismissed the review. application with the remarks that it was unfortunate that the applicant with a view to seek review of the judgment had indulged in perjury and thus rendered himself liable to be prosecuted for the same but took lenient view and ;did not take any action against the applicant ---Validity--­Leave to appeal was granted by Supreme Court to consider the questions as to whether High Court was not in error in passing both the orders which had resulted in non-resolution of the lis on merits; whether both the orders were not tantamount to sanctifying the orders impugned in the Constitutional petition, which in their own turn, were not justified in that they failed to sec aside orders obtained through fraud, misrepresentation and concealment of facts and whether affidavit of the counsel of respondent before the High Court in support of review was not sufficient in itself to order re-hearing, of the Constitutional petition, because, in fact he had not withdrawn the said affidavit but withdrawn himself from the cases.

Ch. Muhammad Anwar Bhinder, Advocate, Supreme Court .instructed by Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Mr. A.R. Shaukat, Senior Advocate Supreme Court instructed by Tanvir Ahmad Advocate-on-Record for Respondents.

Date of hearing: 13th December, 1999.

2000 S C M R 1427

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

PROVINCE OF PUNJAB through District Collector, Bahawalpur---Petitioner

versus

MUHAMMAD ARSHAD and others---Respondents

Civil Petition No. 1038-L of 1998, decided on 13th December 1999.

(On appeal from the judgment/order dated 19-5-1998 passed by the Lahore High Court, Lahore, in C.R. No.408 of 1995).

Constitution of Pakistan (1973)---.

----Art. 1.85(3)---Concurrent findings of fact by all Courts below---Finding of fact was based on overwhelming material---Supreme Court refused to interfere with the judgment of High Court---Leave to appeal was refused.

Ch. Muhammad Bashir, Assistant Advocate-General, Punjab for Petitioner.

M. Jaffar Hashmi, Advocate Supreme Court, Farooq Amjad Mir, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 13th December, 1999.

2000 S C M R 1430

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

MUHAMMAD ZAFAR---Petitioner

versus

MUHAMMAD-BASHIR and others----Respondents

Criminal Petitions Nos.238-L and 239-L of 1999, decided on 24th November, 1999.

(On appeal from the judgment, dated 12-6-1997. passed by Lahore High Court, Lahore, in M. R. No. 46 of 1992 and Crl. As. Nos. 16 and 18 of 1991).

Penal Code (XLV of 1860)---

----Ss. 302/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Complainant in one petition had sought enhancement of sentence awarded to one accused and in the other reversal of the finding of acquittal recorded by High Court in respect of four accused in the case---Leave to appeal had already been granted to- the four convicts in the case by Supreme Court and the whole matter was to be heard in the light of the said leave granting order---Leave to appeal was consequently granted-by Supreme Court in both the petitions to consider whether the grant of lesser punishment to one accused and acquittal of remaining four accused in the case was justified.

Khawaja Sultan Ahmad, Senior Advocate Supreme Court and Abul Aasim Jafri, Advocate-on-Record for Petitioner (in all Petitions).

Nemo for Respondents (in Criminal Petition No. 238-L of 1999).

Aftab Jehangir, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents Nos. 1 to 3 (in Criminal Petition No. 239-L of 1999).

Date of hearing: 24th November, 1999. .

2000 S C M R 1432

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MUHAMMAD AKRAM MUNIR---Petitioner

versus

AA.D DIN and others---Respondents

Civil Petition No.1191-L of 1998, decided on 14th December, 1999.

(On appeal from the judgment and order of the Lahore High Court, Lahore dated 1-7-1998 passed in RSA No.83 of 1978).

Power of Attorney Act (VII of 1882)---

----S. 2---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art. l85(3)---General power of attorney---Validity---Finding of fact recorded against the petitioner by First Appellate Court and upheld by High Court in exercise of jurisdiction under 5.115, C.P.C. did not appear to be deficient in any measure whatsoever---High Court had found that First Appellate Court had correctly resolved the issue by re-appraising the entire evidence correctly and after taking into consideration all the circumstances had reached the conclusion that general power of attorney was passed by examining Tehisldar/Sub-Registrar, the scribe, the stamp vendor and the marginal witnesses---Both Courts having exercised their jurisdiction rightly Supreme Court declined leave to appeal against the order of High Court.

C. M. Latif Rawn and Sh. Naveed Shehryar, Advocates Supreme Court instructed by S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 14th December, 1999.

2000SCMR1436

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddigui C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

KARIM KHAN---Petitioner

versus

HURMAT KHAN and another---Respondents

Civil Petition for Special Leave to Appeal No.1424-L of 1999, decided on 24th November, 1999.

(On appeal against the judgment dated 2-7-1999 of the Lahore High Court, Lahore in R.S.A. No. 194 of 1985).

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

----S. 12---Constitution of. Pakistan (1973), Art. 185(3)---Specific performance of agreement to sell--=Dispute regarding performance of part of obligation by petitioner---Courts below had come to the conclusion that respondents were present in office of Sub-Registrar but the petitioner did not come forward to perform his part of contract---Petitioner also had produced an application addressed to Sub-Registrar according to which the respondents had failed to perform their part of obligation---Validity---Willingness on the hart of the petitioner to perform his part of obligation by way of moving an application to the Sub-Registrar on the day fixed for completion of the contract had not been properly attended to---Leave to appeal was granted by Supreme Court to consider the evidence led by the .petitioner about his willingness to perform his part of obligation under the contract.

Awan Muhammad Hanif Khan, Advocate Supreme Court and Walayat Umer, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 24th November, 1999.

2000 S C M R 1438

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

LIAQAT ALI ---Petitioner

versus

THE STATE---Respondents

Criminal Petition No.408-L of 1999, decided on 24th November, 1999.

(On appeal from the order-of Lahore High Court, Multan Bench, dated 8-7-1999 passed in Cr. Misc. No. l l l l-B of 1999).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art. 185(3)---Bail---Plea of self-defence raised by the accused could be considered at the trial as a defence plea which could not possibly be considered by Supreme Court at bail stage---Grant or refusal of bail by High Court being purely in exercise of its discretionary power could not be interfered with lightly by Supreme Court---View taken by High Court in refusing bail to accused did not suffer from any legal infirmity---Leave to appeal was refused to accused accordingly.

State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

Sh. Khizar Hayat, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 24th November, 1999.

2000 S C M R 1440

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan, Sh. Riaz Ahmed

and Ch. Muhammad Arif, JJ

SAYYED HASSAN through Legal Heirs‑‑‑Petitioner

versus

COMMISSIONER, PUNJAB, LAHORE and others‑‑‑Respondents

of 1999, decided on 28th December, 1999, (On appeal from the judgment dated 27‑10‑1999 passed by the Lahore High Court, Multan Bench, Multan, in Writ Petition No.332 of

Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑Para. 7‑‑‑Exemption‑‑‑Gift of land‑‑‑Entry of mutation of gift was subsequent to the crucial date i.e. 20‑12‑1970; document of gift dated 4‑10‑1974 was‑ not registered one; entries in the Register of the stamp vendor showed that the stamp paper was not purchased by the person concerned and the document dated 4‑10‑1974 could not be proved to be the genuine one constituting a complete gift under Muhammadan Law‑‑‑Relevant mutations were preceded by a narration that the disposition in question was "Tamleeq Zabani" and that order dated 21‑3‑1972 passed by the Revenue Officer on all mutations explicitly stated that donor and donees were present and donor admitted to the making of an oral gift of the land in question in favour of donees, his: sons‑‑‑Validity‑‑‑Donor had neither stated in his declaration in Form LR 1 that he had made any gift through document dated 7‑4‑1970 nor the said document was genuine one in that the disputed entries in the Register of stamp vendor clearly went against the interest of alleged donor and donees‑‑‑Absence of any reference to the, document dated 7‑4‑1970 in the Declaration Form of donor, thus, created genuine doubt resulting in refusal to accept the transaction evidenced by the same to be valid in circumstances.

Malik Abdus Sattar Chughtai, Advocate Supreme Court with Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th December, 1999.

2000 S C M R 1444

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Messrs MALIK MUHAMMAD NAWAZ---Appellant

versus

Syed MEHMOOD HUSSAIN ---Respondent

Civil Appeal No.533 of 1997, decided on 12th November, 1999.

(On appeal against the judgment and order dated 16-12-1996 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No.585 of 1996).

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

----0. XXXVII, R. 3(2)---Constitution of Pakistan (1973), Art. 185(3)--­Leave to appeal was granted by Supreme Court to consider as to whether District Judge had rightly proceeded and rejected the sureties offered by the appellant.

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

----0. XXXVII, R. 3(2)---Suit for recovery of money---Leave to appear and defend suit, subject to furnishing of surety---Trial Court refused to accept various sureties produced by defendant and suit was decreed against defendant---Validity---Trial Court in its discretion had passed proper orders and having found property documents to be inadequate refused to accept the sureties offered by the defendant---Trial Court had neither committed any illegality in exercise of such discretion, nor the order was arbitrary and capricious---Order of Trial Court was not liable to be interfered with by Supreme Court.

Gul Zarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Raja Muhammad Irshad, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 12th November, 1999.

2000 S C M R 1447

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MUHAMMAD EHSAN---Petitioner

versus

AMANATULLAH---Respondent

Civil Petition for Leave to Appeal No.1551-L of 1998, decided on 17th December 1999.

(On appeal from the judgment/order, dated 13-7-1998, of the Lahore High Court, Lahore, passed in Civil Revision No.2106 of 1997).

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit--­Talb-i-Muwathibat---Time and place of making the "Talb"---Concurrent findings of fact by the Courts below while dismissing the pre-emption suit--­Serious inconsistency between statements of witnesses about time and place of making the "Talb"---Conclusion drawn by Courts below were based on proper appreciation of evidence and did not call for any interference---Leave to appeal was refused.

Muhammad Rafiq Butt, Advocate Supreme Court and Ch. Tatib Hussain, Advocate-on-Record for Petitioner.

Malik Allah Yar, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate-on-Record for Respondent.

Date of hearing: 17th December 1999.

2000 S C M R 1448

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

HAFIZA BEGUM and 2 others---Petitioners

versus

SHAH MUHAMMAD and another---Respondents

Civil Petition No. 1901-L of 1999, decided on 29th November, 1999.

(On appeal from the judgment dated 8-11-1999 passed by the Lahore High Court. Lahore in Civil Revision No.929 of 1985).

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3 8C S. 115---Constitution of Pakistan (1973), Art. 185(3)--­Failure to produce evidence---Dismissal of suit---Legality---Leave to appeal was granted by Supreme Court to consider the contentions that dismissal of the suit on account of failure to produce evidence under O.XVII, R. 3, C.P.C. would not stand in the way of the party in successfully challenging the mutation in question, when findings had not been recorded by the Court and point had been left open for decision in fresh proceedings, then principles of res judicata would not be applicable to the matter and that concurrent findings of two Courts below on questions of fact, did not furnish any cause to the High Court to reverse the same in the exercise of its jurisdiction under 5.115, C.P.C.

Haii Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813 and Mst. Iran Cheema v. Auqaf Department 1999 SCMR 2289 ref.

Raja Muhammad Anwar, Senior Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Malik Muhammad Azam Rasool, Advocate Supreme Court with Ch. Muhammad Aslam, Advocate-on-Record for Respondents.

Date of hearing: 29th November, 1999.

2000 S C M R 1453

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Abdur Rehman Khan

and Munir A. Sheikh, JJ

Dr. SHAHBAZ KHAN and another---Appellants

versus

WAPDA through Chairman and 4 others---Respondents

Civil Appeals Nos.2 and 3 of 1999, decided on 24th February, 2000.

(On appeal from the judgment dated 16-7-1998 of the Federal Service Tribunal passed in Appeals Nos.265 and 271 (P) of 1997).

(a) West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(lA)---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service on basis of charges carrying stigma---Leave to appeal was granted by Supreme Court to consider whether in a case where the WAPDA employee was sought to be removed from service on the basis of serious charges carrying stigma, recourse to the provision of S.17(lA) of West Pakistan Water and Power Development Authority Act, 1958 could be made or the Authority was required to proceed under Civil Servants (Efficiency and Discipline) Rules, 1977 and if the charges were such which required evidence, Inquiry Committee was to be constituted and proceeded in accordance with law.

(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(lA)---Constitution of Pakistan (1973), Art. 212(3)•--Dismissal from service on basis of charges carrying stigma---Such dismissal from service of the employee was made by WAPDA under the provision of S.17(lA) of West Pakistan Water and Power Development Authority Act, 1958---Validity---Such provision of law could not be invoked, in a case where WAPDA employee was sought to be removed from service on account of serious charges carrying stigma---Such employee would be proceeded against in accordance with Civil Servants (Efficiency and Discipline) Rules, 1973, though for the purpose of simple termination of employment of such employee, the provisions of S.17(lA) of West Pakistan Water and Power Development Authority Act, 1958 could be invoked---Orders of removal of the employee from the service and dismissal of appeal by Service Tribunal were not sustainable in circumstances.

WAPDA and others v. Sikandar Ali Abro and others 1998 SCMR 137 and Aleem Jaffar, Ex-Line Superintendent, WAPDA, Lahore v. WAPDA through Chairman, Lahore and 2 others 1998 SCMR 1445 ref.

Sheikh Riazul Haq, Advocate Supreme Court (in C.A. No. 2 of 1999), Hafiz S.A. Rahman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in C.A. No. 3 of 1999).

Saadat Hussain, Advocate Supreme Court for Respondent (in both Appeals).

Date of hearing: 24th February, 2000.

2000 S C M R 1455

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

LIAQUAT ALI and others---Petitioners

versus

THE STATE---Respondent

Criminal Petition No.214 of 1999, decided on 11th November, 1999.

(On appeal from the judgment dated 21-10-1999 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Revision No.108 of 1999).

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan (1973), An. 185(3)---Summoning of witnesses for examination---Trial Court as well as the High Court had resolved the matter against the accused on the ground that neither the calling of the required witnesses as Court witnesses nor the Forensic Science Expert was proper/necessary as sufficient material was available on the record for arriving at a just conclusion in the case--­High Court had also rightly observed in the impugned judgment that the alleged ambiguity in the report of Forensic Science Expert could be pointed out by the defence before the Trial Court and a favourable point could be achieved without cross-examining the Forensic Science Expert which could, of necessity, lead to filling in lacunae to favour the prosecution---Leave to appeal was refused by Supreme Court to accused accordingly.

Mehrzad Khan v. The State PLD 1991 SC 430 ref.

Muhammad Ilyas Siddiqui, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Sardar Muhammad Ishaq, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for the State:

Date of hearing; 11th November, 1999.

2000SCMR1459

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Oh. Muhammad Arif, JJ

AHBAB COOPERATIVE HOUSING SOCIETY LTD. ---Petitioner

versus

NAZIR AHMED and 8 others---Respondents

Civil Appeal for Leave to Appeal No. 1561 of 1999, decided on 17th November, 1999. , (On appeal against the order dated 23-9-1999 of the Lahore High Court,. Lahore in W. P. No. 1665 of 1.978). .

Land Acquisition Act (I of 1894)---

----S. 4---Constitution of Pakistan (1973), Art. 185(3)---Acquisition of land---Land was acquired by society in year 1971---Matter was decided in favour of the petitioner up, to Supreme Court in earlier round of litigation--­High Court in second round of litigation decided the matter against the petitioner and declared the acquisition proceedings as ultra vires, illegal, without jurisdiction and mala fide---Leave to appeal was granted by Supreme Court to examine validity of the acquisition proceedings.

K. M. A. Samdani, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th November, 1999.

2000 S C M R 1463

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

TAJ DIN and 8 others---Petitioners

versus

KARIM BAKHSH and 11 others--.-Respondents

Civil Petition for Leave to Appeal No. 1422-L of 1998, decided on 16th December, 1999.

(On appeal from the judgment and order of the Lahore High Court, Lahore dated 24-7-1998 passed in R.S.A. No.344 of 1979).

(a) Transfer of Property Act (IV of 1882)---

----S. 60---Redemption of mortgage---Limitation---Redemption of mortgage having not taken place within the period of 60 years, rights and interest of the mortgagor stood extinguished and successor of the original mortgagee who was a minor sold the mortgagee rights---Valuable right having accrued in favour of mortgagee by efflux of time with the extinction of the rights of the mortgagor to redeemed the property, any transaction or execution of a document effecting such a right would be hit by the principle that a de facto guardian had no power or authority to deal with the rights and interest of the minor.

Maqbool Ahmed v. - Government of Pakistan 1991 SCMR 2063; Muhammad Afzal Khan and others v. Mst. Khurshid Bibi PLD 1975 Pesh. 24; Imam Bandi v. Mutsaddi AIR 1918 PC 11; Rang Elahi v. Mehboob Elahi AIR 1926 Lah. 170; Muhammad Amin and others v. Wakeel Ahmad AIR 1952 SC 358; Ali Muhammad v. Ram Niwas AIR 1967 Raj. 258; Tikan Chand Luna v. Rahim Khan Ishaq Khan AIR 1971 Madh. Pra. 23;' Ziarat Gul v. Mian Khan PLD 1950 Pesh. 69; Sultan Ahmad v. Fazul Kabir alias Monohar Ali Ch. PLD 1954 Dacca 104; Ahmad Khan v. Rasool Shah PLD 1975 SC 311; Mst. Zarmawa and 8 others v. Khiat Bal Khan and 53 others 1992 SCMR 1804 and Naseef v. Abdul Ghaffar and others PLD 1966 SC 267 ref.

(b) Limitation Act (IXof 1908)---

----S. 28---Repugnancy to Injunctions of Islam---Provisions of S.28, Limitation Act, 1908 having been declared to be repugnant to Injunction of Islam by judgment of the Supreme Court to take effect from 31-8-1991, such judgment will not have any retrospective effect.

Government of Pakistan 1991 SCMR 2063 ref.

Jahangir A. Jhoja, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

M. Saleem Shahnazi Advocate Supreme Court instructed by Sh. Salahuddin, Advocate-on-Record for Respondents.

Date of hearing: 16th December, 1999.

2000 S C M R 1470

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi

and Ch. Muhammad Arif, JJ

SAJEED KHAN and 8 others-Petitioners

versus, FAZAL SATTAR KHAN and 53 others---Respondents

Civil Petition No.282-P of 1995., decided on 19th December, 1997.

(On appeal from judgment, dated 14-3-1995 of the Peshawar High Court passed in C.R. No.447 of 1988).

West Pakistan Land Revenue Act (XVII of 1967)---

----S. 135---Constitution of Pakistan (1973), Art.185(3)---Partition of hillock---Disputed hillock was a joint property of the parties--=Courts below calculated the share of the petitioner out of the joint property---High Court while disposing of the revision petition observed that the property could be partitioned easily by the Revenue Officers under the provisions of Chap. XI of West Pakistan Land Revenue Act, 1967---Substantial justice having been done between the parties, who had to follow the law applicable in relation to partitioning the disputed property in terms of West Pakistan Land Revenue Act, 1967, Supreme Court declined to interfere in the proceedings---Leave to appeal was refused.

Ghulam Rasool v. Ikram Ullah and another PLD 1965 (W.P.) Lah. 429 distinguished.

Saeed Baig, Advocate Supreme Court for Petitioners. . S. Safdar Hussain, Advocate-on-Record for Respondents.

Date of hearing: 19th December, 1997.

2000 S C M R 1472

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C. J., Mamoon Kazi

and Ch. Muhammad Arif, JJ

MUHAMMAD RAFIQUE---Petitioner

versus

SHAUKAT ALI alias BUTT and another---Respondents

Criminal Petition No.83 of 1995, decided on 8th December, 1997, (On appeal from the judgment, dated 28-2-1995 passed by the Lahore High Court, Lahore in Criminal Appeal No.806 of 1992 and Criminal Revision No.557 of 1992).

Penal Code (XLV of 1860)-

----S.302----Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Accused was sentenced to life imprisonment under 5.302, P.P.C. by the Trial Court but acquitted in appeal by High Court---Leave to appeal was granted by Supreme Court to consider the efficacy or otherwise of the judgment of High Court in that no effort appeared to have been made therein to sift the grain from chaff even in relation to the alleged contradictory statements of prosecution witnesses as also to even so much as counter the reasons advanced by the Trial Court in accepting the prosecution case in its material particulars with the observation that the defence plea did not advance its case for sparing the real culprits to falsely involve the accused to please Member of Provincial Assembly.

Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th December, 1997.

2000 S C M R 1474

[Supreme Court of Pakistan]

Present: Ajmal Mian,. C.J. and Mamoon Kazi, J

GHULAM ALI MEMON and others---Petitioners

versus

HIEF SECRETARY, GOVERNMENT OF SINDH

and others---Respondents

ms Nos.638-K and 639-K of 1998, decided on 26th January, (On appeal from the judgment, dated 20-7-1998 of the Sindh Service Tribunal, Karachi in Appeals Nos.79 and 80 of 1998).

Sindh Service Tribunals Act (XV of 1973)---

----S.4---Appeal---Limitation---Appeal must be filed within 30 days from the expiry of waiting period of 90 days i.e. a clear period of 120 days for filing appeal before the Service Tribunal is available to a civil servant.

Muhammad Siddique v. Mian Amir Khisro and 2 others 1985 SCMR 1.848; Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and .2 others PLD 1990 SC 692; Federation of Pakistan v. Muhammad Azim Khan and others 1989 SCMR 1271; Syed Shamshad Hussain v. The Controller of Post Offices, Karachi and 2 others PLD 1987 SC 256; Shabir Ahmed v. Azad Jammu and Kashmir Government through its Chief Secretary, Muzaffarabad and another 1997 PLC (C.S.) 478 and Rehmat Ullah Zia v. Aziz-ud-Din Qureshi and others 1998 PLC (C.S.) 132 ref.

Abdul Sattar Mughal, Advocate (with Special Permission of the Court) for Petitioner.

Saleem Samo, Additional Advocate-General for Respondents (on Notice).

A. Kadir Khan, Advocate: Amicus curiae.

Date of hearing: 26th January, 1999.

2000 S C M R 1477

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi

and Ch. Muhammad Arif, JJ

ASAF KHAN---Petitioner

versus

SECRETARY, MINISTRY OF FOREIGN

AFFAIRS and 3 others---Respondents

Civil Petition No.216 of 1996, decided on 8th December, 1997.

(On appeal from the judgment, dated 10-1-1995 passed by the Federal Service Tribunal in Appeal No.452(R) of 1995).

Constitution of Pakistan (1973)----

----Art.212(3)---ESTACODE, 1989 Edn., Chap.VI, Sr. Nos. 63 to 69--­Grant of additional charge---Civil servant was given an additional charge of the post of Commercial Secretary, High Commission of Pakistan---Grant of additional charge was turned down by the Establishment Division being not tenable---Appeal of civil servant before Service Tribunal was dismissed on the ground that civil servant did not lay any claim to his eligibility as also qualification for promotion as Commercial Secretary but a compensation of 10% of the pay of his own post for performing the additional duty was allowed---Validity---Such was the adequate compensation for the same--­Substantial justice having been done in the case, Supreme Court declined to substitute its decision for that of the Service Tribunal---Leave to appeal was refused.

Subha Sadiq v. Secretary to Government of Punjab 1984 PLC (C.S.) 718; Syed Imtiaz Ali Naqvi v. Managing Director (P.), WAPDA 1984 PLC (C.S.) 1606 and Federation of Pakistan v. Shezada Shah Pur Jan 1986 SCMR 991 distinguished.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Mian Tariq Mahmood, Advocate Supreme Court for Respondents.

Date of hearing: 8th December, 1997.

2000 S C M R 1480

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi

and Ch. Muhammad Arif, JJ

Mst. SHABBANA NAZ BUTT---Petitioner

versus

Mst. HUKAM JAN and others---Respondents

Criminal Petition No. 153 of 1995, decided on 10th December, 1997.

(On appeal from the judgment, dated 24-9-1995 of the Lahore High Court, Rawalpindi Bench, passed in P. S.L.A. No. 17 of 1995).

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

----SsA11-A (2), 200, 204 & 249-A---Constitution of Pakistan (1973), Art. 185(3)---Private complaint-'-failure to produce evidence---Trial Court acquitted the accused persons under S.249-A, Cr.P.C.---No prosecution witness had been examined in about five years in support of petitioner's complaint and that petitioner did not so much as ask for issuing process by the Trial Court for summoning her witnesses in the case---No ground for allowing the petition had been made out---Leave . to appeal was refused.

Ch. Muhammad Akram, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th December, 1997.

2000 S C M R 1482

[Supreme Court of Pakistan

Present: lftikhar Muhammad Chaudhary, Syed Deedar, Hussain Shah and Hamid Ali MirZa, JJ

ALLAH BAKHSH and another----Appellants

versus

THE STATE---Respondent

Criminal Appeal No.306 of 1996, decided on 17th May, 2000.

(On appeal from the judgment, dated 21-9-1993 of the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.292 of 1991 and Murder Reference No. 60 of 1990).

Penal Code (XLV of 1860)---

-----Ss.302 & 34---Sentence, award of---Evidence on record showed that each one of the accused had given one blow each to the deceased with their respective weapons, therefore, observation that one particular accused had individually caused the injuries could not be presumed in absence of evidence on record---Accused persons who participated in the commission of the crime had given one injury each to the deceased and all injuries individually and collectively were said to be sufficient to cause death in ordinary course of nature---No distinction in awarding sentence to each of the accused, in circumstances, could be made when guilt of several accused was proved to be equal and undistinguishable and arm of the law must reach to all the accused persons sternly and remorselessly in an equal manner---Sentence awarded to accused persons was modified by Supreme Court applying the principle of consistency.

Shaheb Ali v. State PLD 1970 SC 447 and Saifur Rehman v. The State 1988 SCMR 443 ref.

Dil Muhammad Tarar, Advocate Supreme Court for Appellants.

Ch. Ghulam Ahmed, Advocate Supreme Court for the State.

Date of hearing: 17th May, 2000.

2000 S C M R 1486

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, C.J., Muhammad Bashir

Jehangiri and Ch. Muhammad Arif, JJ

NAZAR HUSSAIN alias NAZRA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 1 of 1994, decided on 10th November, 1997.

(On appeal from the judgment, dated 12-4-1992 of the Lahore High Court, Lahore passed in Criminal Appeal No.382 of 1989 and Murder Reference No. 186 of 1989). .

(a) Penal Code (XLV of 1860)---

----S.302/34---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether occurrence was a sudden fight and whether the penalty imposed on the accused by High Court was appropriate in circumstances of the case.

(b) Penal Code (XLV of 1860)---

----S.302/34---Appraisal of evidence---Triviality of motive---Broad daylight occurrence---Natural witnesses---Plea raised by the accused was 'that prosecution evidence consisted of statements of related, interested and unreliable witnesses who had not seen the occurrence and that motive attributed to the accused was not only false but weak to prompt him to kill the deceased---Validity---High Court had rightly repelled the plea with the admitted position (by the defence) that there was no previous enmity between the parties---Natural course of events in relation to the eye-witnesses in the case was taken into account, who were attracted to the scene of occurrence on account of their residence near thereto---High Court had found that occurrence having taken place in broad daylight was running counter to the plea of mistaken identity and that triviality. of motive would not tantamount to giving a clean chit to the defence for establishing that the case was false--­Conviction of the accused was rightly upheld by the appellate forum and altering his sentence from death to imprisonment for life by considering that motive in the case was trivial---Case was that of sudden flare-up and death had been caused with a solitary shot---Judgment of High Court was not suffering from any taint to justify interference therewith---Appeal was dismissed by Supreme Court.

Rehmuddin v. The State 1973 SCMR 327 and Masoom Beg v. Muhammad Munir and another 1971 SCMR 476 distinguished.

(c) Penal Code (XLV of 1860)---

----S. 302/34---Appraisal of evidence---Sudden fight---Absence of mens rea and actus rea---Effect--=Accused went to his house, picked up the licensed gun of his uncle and fired on the deceased hitting him in the chest---Time taken by the accused in coming back to the place of occurrence with the gun had not been shown to be insufficient to clothe the accused with the responsibility of his criminal act i.e. taking life of the deceased by making a fire which hit him in the chest---Both, mens rea and actus rea were clearly discernible in circumstances.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant. Mrs. Anwar Raza, Advocate Supreme Court for the State.

Date of hearing: 10th November, 1997.

2000 S C M R 1492

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J., Mamoon Kazi

and Ch. Muhammad Arif, JJ

ABDUL QADIR---Petitioner

versus

MASOODUR REHMAN and others---Respondents

Criminal Petition No. 15 of 1996, decided on 10th December, 1997.

(On appeal from the judgment, dated 7-11-1995 of the ,Peshawar High Court, Bench D. I. Khan passed in Criminal Appeal No.20 of 1994).

Penal Code (XLV of 1860)----

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal against acquittal---Trial Court convicted two accused persons while other two were acquitted---High Court, while deciding appeal acquitted the convicted accused persons also---Leave to appeal was granted by Supreme Court to consider whether prosecution evidence against the accused had been properly appreciated by High Court while directing their acquittal.

Muhammad Zahoor Quresh. Azad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th December, 1 1497

2000 S C M R 1495

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah

and Hamid Ali Mirza, JJ

KHURAM MALIK and others---Petitioners

versus

THE STATE and others---Respondents -

Criminal Petitions Nos.20 and 26 of 2000, decided on 3rd May, 2000.

(On appeal from the judgment, dated 23-12-1999 of the Peshawar High Court, Abbottabad Bench, in Criminal Appeal No. 13 of 1999 and Murder Reference No.3 of 1999).

(a) Penal Code (XLV of 1860)----

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to the convict/accused to consider the contention that there was no ocular evidence and accused had been convicted and sentenced only on the basis of circumstantial evidence and judicial confession made by him before the Magistrate and that High Court being mindful of said fact had converted the sentence of death awarded to accused with life imprisonment.

(b) Penal Code (XLV of 1860)----

----S.302(b)---Constitution of Pakistan (1973), Art. 185(3)---Conversion of death sentence awarded to accused with life imprisonment by High Court--­Validity---Leave to appeal was granted by Supreme Court to the complainant to consider the contention to the effect that accused had committed a brutal murder of deceased and prosecution had produced sufficient circumstantial evidence corroborated by medical evidence as well as the confession made by him before the Magistrate, that Sessions Judge had properly appreciated and evaluated the evidence and rightly convicted the accused and sentenced him to death and that High Court had, without plausible reason and explanation modified the sentence of death to that of imprisonment for life.

Muhammad Munir Peracha, Advocate Supreme Court alongwith Saeed Akhtar Khan, Advocate Supreme Court and Ch. Akhtar Ali Advocate-­on-Record for Petitioners (in Cr.P. No.20 of 2000).

Nemo for Respondent (in Cr.P. No.20 of 2000).

Ejaz Afzal Khan, Advocate Supreme Court alongwith Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in Cr.P. No. 26 of 2000).

Nemo for Respondents (in Cr.P. No.26 of 2000).

Date of hearing: 3rd May, 2000.

2000 S C M R 1498

[Supreme Court of Pakistan]

Present: Ajmal Mian, CJ., Sh. Ijaz Nisar

and Ch. Muhammad Arif, JJ

ALI MEMON and others---Appellants

versus

PAKISTAN WATER AND POWER DEVELOPMENT

AUTHORITY and others ---Respondents

Civil Appeals Nos. 76-K to 78-K of 1993, decided on 16th November, 1998.

(On appeal from the judgment, dated 25-10-1992 passed by the High Court of Sindh, Karachi in Constitution Petitions Nos.571 of 1992; 727 of 1992 and 752, of 1992).

(a) Constitution of Pakistan (1973)---

----Arts. 185(3) & 212---Leave to appeal was granted by Supreme Court to consider; whether the decision of WAPDA in appointing the petitioners as Technical Upper Subordinates was based on determination of fitness or otherwise of the petitioners and whether jurisdiction of High Court was barred under Art.212 of the Constitution.

Iqan Ahmed Khurram's case PLD 1980 SC 153 ref.

(b) Constitution of Pakistan (1973)--­

----Arts. 185 & 212---Appointment to the post of Junior Engineer--­Acceptance of appointment letter to the lower post---Employees did not contest the appointment letter issued by the Authority until institution of their Constitutional petitions in High Court---No explanation whatsoever had been offered by and on behalf of the employees on account of their ownvoluntary act of accepting the assignment/appointment as Technical UpperSubordinates---Appeals were dismissed accordingly.

Iqan Ahmed Khurram's case PLD 1980 SC 153 distinguished.

Mansoor Ali Khan, Advocate Supreme Court with Ahmadullah Faruqi, Advocate-on-Record for Appellants.

R.A. Qureshi, Advocate-on-Record for Respondents. Nos. 1 to 3.

Respondents Nos.4 to 6: Ex parte.

Respondent No.7 (absent).

Date of hearing: 16th November, 1998.

2000 S C M R 1504

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary and others---Appellants

versus

Capt. (Retd.) MUHAMMAD ASHFAQ---Respondent

Civil Appeal No. 1197 of 1996, decided on 17th June, 1998.

(On appeal from 'the judgment, dated 15-1-1995 of the Punjab Service Tribunal passed in Appeal No.434 of 1992).

(a) Constitution of Pakistan (1973)---

----Art.212(3)---Service Tribunals Act (LXX of 1973), S.4---Leave to appeal was granted to consider contentions that the judgment of Service Tribunal proceeded on premises which were factually incorrect; that Governor of the Province had declined to accept the claim of the employees and that judgment of Punjab Service Tribunal was misdirected.

(b) Service Tribunals Act (LXX of 1973)----

----S. 4---Civil Servants Act (LXXI of 1973), S. 9---West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964---Selection grade, grant of---Entitlement of civil servant to the grant of selection grade with effect from 13-5-1966 was rightly resolved by the Service Tribunal to enure to his benefit from that date to 1-3-1972 when in absence of continuation of Selection Grade, the case of the civil servant would qualify to be equated with the comparable National Pay Scale---Civil servant had received the arrears of his salary etc. in implementation of the judgment under appeal and was retired from service as far back as on 31-10-1973---Held, civil servant should not be harassed by the Department in the matter of enjoyment of retirement---Appeal was dismissed.

(c) Civil Servants Act (LXXI of 1973)----

----S. 9---Promotion---Eligibility of a civil servant to be promoted is different from one of his fitness for such advancement in his service career.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

M. Zaman Bhatti, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Appellants.

Afzal Ahmad, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate-on-Record (absent) for Respondent.

Date of hearing: 17th June, 1998.

2000SCMR 1510

[Supreme Court of Pakistan]

Present: Rashid AZiZ Khan and

Iftikhar Muhammad Chaudhary, JJ

Dr. MUHAMMAD RASHID and others---Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary S.G.A. & D

Department and others---Respondents

Civil Petition for Leave to Appeal No. 1372-L of 1999, decided on 26th April, 2000. .

(On appeal from the judgment; dated 5-8-1999 passed by Punjab Service Tribunal, Lahore in Appeal No.831 of 1996).

(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974----

----R.8(2)---Seniority---Civil servant not appointed against a clear substantive vacancy, his status at the best could be considered as that of ad hoc officer who had been allowed to work till the availability of substantive vacancy--­Such civil servant legitimately could not compete in seniority with those who had been appointed against substantive vacancies, irrespective of the fact whether appointment was through promotion or by method of initial recruitment.

(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974----

----R.8(2)---Seniority---Interpretation of R.g(2), Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Provision of R.8(2) determines the seniority vis-a-vis the promotees and appointees through initial recruitment if they are holding substantive vacancies but if their appointments have been made otherwise against the posts which were not available, they will not be entitled to claim benefit of R.8(2).

1994 SCMR 795 and 1994 SCMR 1957 distinguished.

Hafiz Tariq Nasim. Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents Nos. l and 2.

Hamid Khan, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Respondents Nos.3 to 6.

Date of hearing: 26th April, 2000.

2000SCMR1514

[Supreme Court of Pakistan]

Present: Ajmal Mian, CJ. Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Syed BADAR-E-MUNIR---Appellant

versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 184 others--Respondents

Civil Appeal No.330 of 1993, decided on ist June, 1998.

(On appeal from the judgment, dated 4-3-1993 of the Federal Service Tribunal, Islamabad in Appeal Old No.156(L) of 1989 New No.405(R) of 1990).

(a) Constitution of Pakistan (1973)----

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Leave to appeal was granted to consider contention that civil servant was entitled to be considered against a vacancy which occurred in the departmental quota with effect from the date when such vacancy in their quota became available and that acting charge appointment did not debar consideration for regular promotion from the date the acting charge promotion was given particularly when the vacancy did occur.

Government of N.-W.F.P. and others v. Suner Khan and others 1985 SCMR 1158; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330 and Globe Textile Mills (O.E.) v. Textile Commissioner 1993 SCMR 900 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), S. 9---Departmental promotion---Failure to observe quota fixed for direct recruits and promotees---Civil servant was appointed as Income-tax Officer on acting, charge basis but was not considered for regular promotion---Quota for direct recruits and promotees had been fixed in the ratio of 75:25 and the quota had not been observed---Effect---Material on record indicated that main question in the cause was inextricably linked with availability or otherwise of vacancies in the promotees' quota with a view to resolving the controversy of the entitlement of the civil servant to claim his promotion there against from the relevant dates---Service Tribunal could issue appropriate process to the parties, after obtaining requisite information from the civil servant or the Department---Case was remanded to Service Tribunal for decision afresh after obtaining further material on the question as to whether there were vacancies in the promotees' quota on the relevant dates.

Government of N.-W.F.P. and others v. Suner Khan and others 1985 SCMR 1158; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330 and Globe Textile Mills (O.E.) v. Textile Commissioner 1993 SCMR 900 ref.

Shah Abdur Rashid, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Maulvi Anwar-ul-Haq, Deputy Attorney-General . with Imtiaz Muhammad Khan, Advocate-on-Record for Respondents Nos. l and 2.

Sh. Masood Akhar, Advocate-on-Record (absent) for Respondent' No. 184.

Nemo for Respondents Nos.3 to 183 and 185.

Date of hearing: 1st June, 1998.

2000 SCMR 1519

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

Syed ANWAR HUSSAIN SHAH=--Petitioner

versus

Syed RIAZ HUSSAIN-SHAH and another---Respondents

Civil Petition No.613-L of 1997, decided on 13th April, 1998.

(On appeal from the judgment, dated 11-4-1997 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No.30 of 1986).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Declaratory suit--­Limitation---Joint possession of suit property---Concurrent findings of facts by Courts below---Suit of plaintiff/respondent was decreed by Trial Court and judgment and decree were upheld by Lower Appellate Court as well as High Court---Suit property was in joint possession and the suit was filed when defendant/petitioner denied the right of the plaintiff/respondent--­Validity ---Suit of the plaintiff/respondent was found to be within time as it started running from the day when the defendant/petitioner denied the right of the plaintiff/respondent over the suit property---Concurrent findings of all the Courts were in line with the law laid down by Supreme Court---Leave to appeal was refused.

Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039; Mst. Bibi Mukhtiar v. Mst. Amrezn and another PLD 1968 Pesh. 169; Mst. Karim Jan and 3 others v. Anwar Khan and another PLD 1984 Pesh. 111; Ilam Din and others v. Muhammad Sharif and others 1990 SCMR 1642; Tahir Hussain v. Ghulam Faruque and 7 others PLD 1978 Kar. 182 and Muhammad Shah v. Sher Muhammad and another PLD 1969 Pesh. 103 ref.

Hameed Azhar Malik, Advocate Supreme Court and S. Abut Aasim Jaferi, Advocate-on-Record (absent) for Petitioner.

Ch. Masud Ahmed Ghumman, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for the Caveators.

Date of hearing: 13th April, 1998. .

2000 S C M R 1525

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikand Nazim Hussain Siddiqui, JJ

JUNAID RASHEED and others---Appellants

versus

SULTAN MUHAMMAD and others---Respondents

Civil Appeals Nos. 1131 and 1168 of 1997, decided on 12th May, 2000.

(On appeal from the .common judgment, dated 11-7-1997 of the Peshawar High Court passed in Civil Revisions Nos.389 and 390 of 1994).

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

----S.11-Res judicata, principles of---Applicability---Dispute relating to title, of property---Appellants were in possession of the properties since long---Real dispute between the parties related to the title/ownership of the property---Such dispute could not be decided on the basis of different decisions taken under West Pakistan Urban Rent Restriction Ordinance, 1959 as dispute relating to the title of the property could not be decided in rent proceedings or in appeals emanating therefrom---Principles of - res judicata, therefore, were not at all attracted in the case of dispute relating to title/ownership of property.

Rehmatullah v. Ali Muhammad and another 1983. SCMR 1064 ref. .

S.M. Zafar, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in C. A. No. 1131 of 1997).

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in C. A. No. 1168 of 1997).

Mushtaq Ali Tahirkheli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. l (in both.Appeals).

\,Date of hearing: 14th February, 2000.

2000 S C M R 1531

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

KHADIM HUSSAIN ---Petitioner

versus

THE STATE---Respondent

Jail Petition No. 162 of 1999, decided on 12th May, 2000.

(On Appeal from the judgment of the Lahore High Court, Multan Bench, dated 3-6-1999 passed in Criminal Appeal No.262 of 1995).

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 452, 324 & 337--=Constitution of Pakistan (1973), Art. 185(3)---Re-appraisal of evidence---Throwing of acid by accused resulting in death of one and into permanent disfigurement of faces and chests of two females---Prosecution had produced very natural and consistent and convincing evidence---Accused was real nephew of the complainant and there was no cogent reason that the complainant would falsely implicate his real nephew and spare the real culprit---Motive, according to the prosecution evidence, had been rightly proved---Plausible explanations as to delay in examination of victim of acid throwing was that because of injuries she became unconscious and when she regained her consciousness her statement was recorded by Police---No enmity on the part of prosecution witnesses had been suggested by the defence during their cross-examination---Ocular evidence was supported by the recovery of the burnt articles from the place of occurrence by Police as well as the lantern---No misreading or non­reading of the evidence recorded by the Courts below was noticed---Both Courts below had considered the evidence of the prosecution as well as the defence and they had found the accused guilty of offence for which he was charged---Petition for leave to appeal was dismissed by Supreme Court against order of the High Court.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 452, 324 & 337---Constitution of Pakistan (1973), Art. 185(3)---Death sentence---Acid throwing by accused resulting in death of one and into permanent disfigurement of faces and chests of two females--­Accused though was a young man, but at the same time it was undoubtedly true that he acted in a most callous., cruel and brutal manner---Accused, in quenching his thirst of vengeance against the lady' did not even spare her minor daughter---Medical evidence showed that injuries caused to the lady resulted in her permanent disfigurement and also permanent impairment of the functioning of her left ear---Acid burns caused by accused to deceased covered her whole face and entire body and her eyes were also burnt---Other girl also received acid burns covering her whole face and entire body, her both eyes were also burnt---Said injuries had also permanently impaired the functioning of both her arms---Acid thrown by the accused at his victims not only killed an innocent child but also caused permanent disfigurement of his other victims' bodies and souls and disfigured bodies and faces of victims would remain a living testimony to the accused's criminality for the rest of their lives---No mitigating circumstance having been noticed in the case by Supreme Court, petition for leave to appeal against sentence of the accused was dismissed.

Muhammad Saleem Sheikh, Advocate Supreme Court for Petitioner.

Arshad Ali Chaudhry, Advocate Supreme Court for A.-G., Punjab for the State.

Date of hearing: 12th May, 2000.

2000SCMR1536

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

ABDUL GHAFFAR---Petitioner

versus

FEDERATION OF PAKISTAN and 4 others---Respondents

Civil Petition No. 1311 of 1998, decided on 6th November, 1998.

(On appeal from the judgment, dated 26-6-1998 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.82 of 1998).

(a) Extradition Act (XXI of 1972)----

----S.8(2)---Inquiry before Magistrate ---Affidavit-in-evidence---Non­appearance of witness before Inquiry Magistrate---Effect---Where material/evidence brought against fugitive offender including deposition of a witness in form of affidavit duly recorded before Magistrate of Treaty State and certified by the Attorney-General was produced before the Inquiry Magistrate, the same was in line with requirements of S:8(2) of Extradition Act, 1972---Personal appearance of witnesses before the Inquiry Magistrate was not necessary in circumstances.

Muhammad Azim Malik v. Government of Pakistan and others PLD 1989 SC 519 fol.

(b) Witness--

---- Person performing duty of special agent, to observe the activities of an accused person is not an actual associate of the accused or even his companion---Evidence of such person is considered as that of a witness and not as an accomplice or an approver.

(c) Extradition Act (XXI of 1972)---

----Ss. 8, 9 & 12---Constitution of Pakistan (1973), Art. 185(3)---Extradition of fugitive offender---Inquiry before Magistrate---Affidavits in evidence of witness against fugitive offender---Non-submission of written statement by fugitive offender in support of his innocence---Contention by the fugitive offender was that the inquiry was not conducted by a Competent Authority under S.8 of Extradition Act, 1972,' evidence was not properly appraised by the Inquiry Magistrate and the Federal Government did not form its own independent opinion and that too without obtaining written statement from the fugitive offender, therefore, he was entitled to be discharged under S.12 of Extradition Act, 1972---Validity---Observations of Supreme Court in the case of Muhammad Azim Malik reported as PLD 1989 SC 519 .being applicable to the facts of the case, leave to appeal was refused.

Muhammad Azim Malik v. Government of Pakistan and others PLD 1989 SC 519 fol. .

Nasarullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad and 3 others 1998 SCMR 1072; Khalid Khan and another v. Government of Pakistan through Ministry of Interior and Narcotics Control, Islamabad and 3 others PLD 1994 SC 23; Nargis Shaheen v. Federation of Pakistan through Secretary Interior, Islamabad and 5 others 1994 SCMR 1706; Muhammad Azim Malik v. A.C. and S.D.M.,. Preedy (South), Karachi and others PLD 1989 SC 266; Muhammad Azim Malik v. The Government of Pakistan, through Secretary, Ministry of Interior and 2 others PLD 1989 SC 469 and Muhammad Azim Malik v. Government of' Pakistan and other PLD 1989 SC 519 ref.

Abdul 7Baseer Qureshi. Advocate Supreme Court with EJ'az Muhammad Khan, Advocate-on-Record for Petitioner.

Maulvi Anwar-ul-Haq, D.A.-G. for Respondents:

Date of hearing: 6th November, 1998.

2000 S C M R 1546

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

SECRETARY TO GOVERNMENT OF PUNJAB, HOME

DEPARTMENT, LAHORE and another---Petitioners

versus

Ch. MUHAMMAD AFZAL, SUPERINTENDENT

DISTRICT JAIL, LAHORE---Respondent

Civil Petition No.2405-L of 1996, decided on 15th April, 1998.

(On appeal from the judgment, dated' 20-10-1996 passed by the Punjab Service Tribunal, Lahore in Appeal No.267 of 1995).

Constitution of Pakistan (1973)---

--=-Art. 212(3)---Punjab Civil Servants Act (VIII of 1974), S.8-A--­Promotion in own pay and scale---Civil servant was promoted as Superintendent Jail---Contention by the Department was that civil servant was entitled to get pay of Superintendent of Jail and not the seniority--­Validity---Civil servant had succeeded in appeal before Service Tribunal on the strength of his case duly supported by material on record in that regard--­Judgment of Service Tribunal was not suffering from any taint whatsoever--­No question of general public importance in the case was involved---Leave to appeal was refused.

Accountant-General, Pakistan Revenues, Government of Pakistan, Islamabad v. Arbab Mukhtar Ahmad 1986 SCMR 1206 ref.

Muhammad Anwar Ghuman, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Petitioners.

Ch. Muhammad Ashraf, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent.

Date of hearing: 15th April, 1998:

ORDER

CH. MUHAMMAD ARIF, J.----In this petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973, leave is claimed against the judgment of the Punjab Service Tribunal, Lahore, hereinafter referred to as the Tribunal, dated 20-10-1996, whereby respondent's Appeal No.267 was allowed and he was held entitled to pay and allowance, privileges and status of the post of Superintendent Jail with effect from 21-12-1989, being the date he started working as such.

1. There is no need for separately dealing with the facts leading to the impugned order, dated 20-10-1996. Suffice it to say that the case of the respondent before the Tribunal was that on the submission of a summary by the Department for promoting him under section 8-A of the Punjab Civil Servants Act, 1974, the . Chief Minister approved his promotion and consequently order, dated 21-12-1989 was issued which reads thus:--

"NO. PRS-A1-3/83, GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT, Dated Lahore the December 21st, 1989.

2000 S C M R 1549

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Qazi Muhammad Farooq, JJ

SHAHAB-UD-DIN---Appellant

Versus

CHAIRMAN. WAPDA and others---

Respondents Civil Appeal No.335 of 1995, decided on 23rd May, 2000.

(On Appeal from the judgment, dated 18-10-1993 of the Federal Service Tribunal, Islamabad, passed in Appeal No.350(L) of 1993).

(a) Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Limitation---Leave to appeal was granted by Supreme Court to consider as to whether the appeal of the civil servant before Service Tribunal was barred by limitation.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil. Servants Act (LXXI of 1973), S. 22---Civil Servants (Appeal) Rules, 1977---Constitution of Pakistan (1973), Art.212---Appeal to Service Tribunal---Limitation---First representation made by the civil servant on 29-3-1993, against the order, dated 10--3-1993, was rejected on 19-7-1993, he was, thus, obliged to file appeal before Service Tribunal within a period of thirty days but instead he made a second representation which was rejected on 16-9-1993---Effect---Second representation or departmental appeal having not been envisaged either by S.22, Civil Servants Act or the Civil Servants (Appeal) Rules, 1977, prescribed period of limitation for filing appeal before Service Tribunal was to be reckoned from the date of dismissal of the first representation or departmental appeal made by the aggrieved civil servant---Appeal was, thus, rightly held to be time-barred by the Tribunal.

Nazeer Ahmed Qureshi, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellant.

Sh. Zamir Hussain, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 23rd May, 2000.

2000 SCMR 1552

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

MAHMOOD AHMAD---Petitioner

versus

MUHAMMAD JAVED and another---Respondents

Civil Petition No. 1092-L of 1997, decided on 15th April, 1998.

(On appeal from the orders,' dated 28-5-1997 and 24-7-1997 passed by the Lahore High Court, Lahore in Civil Miscellaneous No.2 of 1997 and Civil Miscellaneous No.4 of 1997 respectively in Writ Petition No.9023 of 1996)

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Constitutional petition pending before High Court---Petitioner filed application under O. VII, R.11, C.P.C. before Trial Court which was dismissed---Revision against order of the Trial Court met the same fate by Appellate Court---Both the orders of Courts below were assailed before High Court iii Constitutional jurisdiction---High Court declined to restrain the Trial Court from proceeding with the trial during the pendency of the Constitutional petition---Validity---Petitioner was still within his right to pursue his cause at the level of High Court as also the Trial Court.

Mian Ata-ur-Rehman, Advocate Supreme Court/Advocate-on-­Record for Petitioner.

C.M. Latif, Advocate-on-Record for Respondents/Caveators.

Date of hearing: 15th April, 1998.

2000 S C M R 1555

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

HAJI MUHAMMAD ----Appellant

versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad and others---Respondents

Civil Appeal No. 83 of 1994, decided on 22nd June, 1998.

(On appeal from the judgment, dated 7-8-1993 passed by the Federal Service Tribunal, Islamabad in Appeal No. 194Q of 1992).

(a) Constitution of Pakistan (1973)----

----Art.212(3)---Civil Servants Act (LXXI of 1973), S.17---Leave to appeal was granted to consider the contention that civil servant had claimed promotion against departmental quota and according to him he was entitled to be promoted from 1986; that appeal was dismissed by Service Tribunal on the ground that same was barred by time and that the Departmental quota was fully observed.

(b) Service Tribunals Act (LXX of 1973)----

----S.4--Civil Servants Act (LXXI of 1973), S.17---Promotion against departmental quota was claimed by civil servant---Service Tribunal while dismissing the appeal of the civil servant did not make any effort to find out whether there were any vacancies in the promotee's quota available and if so on what dates---Judgment/order of Service Tribunal was set, aside and case was remanded to the Tribunal for decision afresh.

Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330 ref.

Hafiz Tariq Naseem, Advocate Supreme Court with Ejaz Muhammad Khail, Advocate-on-Record for Appellant.

Maulvi Anwar-ul-Haq, D.A.-G. with Imtiaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 1 and 3.

Respondents Nos. 2 and 4 to 85: Ex parte.

Date of hearing: 22nd June, 1998.

2000 S C M R 1557

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Javed Iqbal, ii

Messrs ARSHAD & COMPANY‑‑‑Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman‑‑‑Respondent

Civil Petition No. 1733 of 1999, decided on 15th May, 2000.

(On Appeal from the judgment of the Lahore High Court, Rawalpindi Bench, dated 10‑11‑1999 passed in I. C. A. No. 106 of 1999).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Factual controversy and disputed facts such as whether the petitioner/firm had got the skill, technical know‑how, modern equipment capability and resources to accomplish the task in question as the concetned Authority was in a better position to determine such ticklish and technical questions‑‑‑Court, therefore,, could not give the petitioner/firm certificate of fitness for pre­-qualification as technical expert opinion could not be, substituted by the Court.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑Constitutional jurisdiction is intended prhnarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other Authority can be established without any elaborate inquiry into complicated or disputed facts‑‑‑Superior Courts do not involve themselves into investigation of disputed question of fact which necessitate taking of evidence‑‑‑Such exercise can more appropriately be done in the ordinary civil procedure for litigation by a suit.

1971 SCMR 110; 1970 SCMR 853; PLD 1964 SC 636 and PLD 1983 SC 280 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Allegation of discrimination ‑‑‑Proof‑‑­Discrimination always involved an element of unfavourable bias which could not be proved on the basis of bald assertion but required solid and concrete evidence. [p. 15601 D

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑=Discretion‑‑‑ Allegation of discrimination‑‑‑Proof‑‑‑Every exercise of discretion is not an act of discrimination as discretion becomes an act of discrimination only when it is improbable or capricious exercise or abuse of discretionary authority.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Malik Muhammad Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 15th May, 2000.

2000 S C M R 1560

Present: Ajmal Mian, C.J., Sh. Riaz Ahmad and Ch. Muhammad Arif, JJ

ZAHID HUSSAIN-------Appellant

versus

CITY SUPERINTENDENT, POST OFFICE, PESHAWAR and another---Respondents

Civil Appeal N0.426 of 1994, decided on 2nd April, 1998.

(On appeal from the judgment, dated 19-12-1993 of the Federal Service Tribunal, Islamabad, passed in Appeal No.83(P) of 1993).

(a) Constitution of Pakistan (1973)---

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Leave to appeal was granted by Supreme Court to consider, contention of the civil servant that on the material placed before Enquiry Officer no case could be made out against the civil servant specially when he was not provided with the documents allegedly attributed to his negligence and that Authorised Officer, who served the charge-sheet on the civil servant was not competent to impose major penalty on him.

(b) Service Tribunals Act (LXX of 1973)---

----S.4---Compulsory retirement---Charge-sheet was issued to the civil servant against allegations of causing loss to the Government exchequer--­Departmental inquiry was conducted and the civil servant was compulsorily retired from service and appeal beforc Service Tribunal was dismissed--­Contention raised by the civil servant was that relevant documents were not provided to him to meet the charges---Validity---Statement of the civil servant before the Inquiry Officer was specifically noticed in the judgment of Service Tribunal and Service Tribunal came to a definite finding that requisite documents were supplied to the civil servant---Service Tribunal had not misread the record/evidence to give the findings in the judgment--­Appeal was dismissed by Supreme Court.

Atiqur Rehman Qazi, Advocate Supreme Court instructed by Muhammad Zahoor Qureshi Azad, Advocate-on-Record (absent) for Appellant.

Sh. Riazul Haq, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 2nd April, 1998.

2000 S C M R 1563

(Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J.

and Qazi Muhammad Farooq, JJ

MUHAMMAD RAFIQ---Petitioner

versus

Mst. KANEEZ FATIMA and another---Respondents

Civil Petition for Leave to Appeal No.176-L of 2000, decided on 28th

April, 2000.

(On Appeal from the judgment of Lahore High Court, dated 18-11-1999 passed in W.P. No.2149 of 1999).

Muhammadan Law-

---- Divorce---Khula'---In case of dislike by wife of her husband, Islam concedes right to wife in circumstances of extreme discord and where life becomes a torture for both, on account of fixed aversion, on part of spouses, to seek dissolution of marriage on ground of Khula'---Such right, however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right, the success of which depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God---Principles.

Marriage among Muslims was not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam the Din-ul-Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy dead-lock".

In case of dislike by wife of her husband, Islam concedes right to wife, in circumstances of extreme discord and where life becomes a torture for both, on account of fixed aversion on part of spouses, to seek dissolution of marriage on ground of Khula'. This right, however, is not an absolute night by which the wife can herself dissolve the marriage but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses cannot live within the limits of God. However, the Court, while coming to a conclusion on this question, shall bear in mind that it would be more consistent with the letter and spirit of the Qur'an which places the husband and the wife on an equal footing in respect of rights of one against the other to construe the classical incident of Sabit-bin Qais as meaning that the person in authority, including the Qazi, can order separation by Khula' even if the husband is not agreeable to that course. Of course, the Qur'anic condition must be satisfied that the husband and the wife cannot live together in harmony and in conformity with their obligations.

The High Court, in its Constitutional jurisdiction, can interfere if convinced that existing unhappy relations between husband and wife, held out no hope for their living together within limits prescribed by God.

In a matter involving the matrimonial dispute, if the High Court was convinced, after considering all the circumstances of the case, that "the existing unhappy relations between the parties, who are still involved in litigation, hold out no hope for their living together within the limits prescribed by God Almighty", it could direct dissolution of marriage on the basis of Khula'.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 fol.

Muhammad Umar Bibi v. Muhammad Din AIR 1945 Lah. 51; Mst. Sayeeda Khanam v. Muhammad Sami PLD 1952 Lah. 113; Hela-e-Najiza Ortoon Ka Haqe Tansaeekhe Nikah by Maulana Ashraf Ali Thanvi, p.204;

Jawahar-ul-Hukam Parts I, II and III by Maulana Syed Muhammad Badar Alam, p. 160; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329 and Muhammad Siddique v. Mst Kalsoom Bibi 1984 SCMR 523 quoted.

Rasheed Murtaza Qureshi, Advocate Supreme Court assisted by S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Rana Noor Muhammad, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No. 1.

Date of hearing: 27th April, 2000.

2000 S C M R 1569

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Irshad Hasan Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid

and Ch. Muhammad Arif, JJ

FOUZIA SALEEM ABBAS and 3 others---Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Kashmir Affairs, Islamabad and another---Respondents

Criminal Original Petition No. 81 of 1999, decided on 2nd November, 1999.

(Contempt Petition Supreme Court Rules, 1980 regarding judgment dated 28-5-1999 passed by this Court in Constitution Petitions Nos. 11and 17 of 1994).

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court---Holding of election in Northern Areas--­Allegation was that notification issued by the Federal Government was against the spirit of the judgment of Supreme Court and in violation of its order---Documents produced alongwith parawise comments filed on behalf of Federal Government showed that in issuing Notification for holding elections in the Northern Areas the directions given by Supreme Court in its judgment had been substantially complied with---No case for drawing up contempt proceedings against the respondents was, therefore, made out---Petition was dismissed accordingly.

"Sh. Muhammad Naeern, Advocate Supreme Court and M. A. Zaidi, Avocate-on-Record

for Petitioners.

Tanvir Bashir Ansari, Deputy Attorney-General for Respondents.

Date hearing; 2nd November, 1999.

2000 S C M R 1572

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD AFZAL---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.481=L of 1999, decided on 16th November, 1999.

(On appeal against the order dated 6-8-1999 of the Lahore High Court, Lahore in Cr1.A. No.218 of 1994).

Prevention of Corruption Act (II of 1947)--- -

----S. 5(2)---Penal Code (XLV of 1860), 5.161---Constitution of Pakistan (1973), Art. 185(3)---Contentions were that no independent evidence was brought on the record to connect the accused with the commission of the crime; that on the basis of bald statements of interested witnesses conviction could not have been recorded and that the accused had been involved in the case due to enmity---Leave to appeal was granted by the Supreme Court to accused to reappraise the evidence in the case---Sentence of accused being short, the same was also suspended and he was released on bail.

M. Sayeed Akhtar, Bar-at-Law, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 16th November, 1999.

2000 S C M R 1574

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

ABDUL SATTAR KHAN and another---Petitioners

versus

RAFIQ KHAN and others---Respondents

Civil Petition for Leave to Appeal No. 1216-L of 1998, decided on 14th December, 1999.

(On appeal from the judgment of the Lahore High Court, Lahore dated 8-7-1998 passed in Civil Revision No. 1832-D of 1984).

(a) Muhammadan Law---

---Inheritance---Deceased having died issueless was survived by progeny of his two brothers---Question of inheritance was to be resolved by keeping in view the position/status of the progeny of such two brothers i.e. as residuaries being at equal distances from the deceased and they will inherit not as representing their respective fathers as a group but equally being placed in scenario for the purposes of inheritance to the estate of the deceased.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Art. 120---Inheritance---Wrong entry in Jamabandi---Suit for declaration--- Limitation--- Wrong entry in Jamabandi would give a fresh cause of action for a suit for declaration and for the correction of wrong entry---Such suit can be filed within six years from the date when the right to sue had occurred.

Atta Muhammad v. Nasir-ud-Din PLD 1993 Pesh. 127 ref.

Ejaz Ahmad Khan, Advocate-on-Record for Petitioners. Nemo for Respondents.