SCMR 2001 Judgments

2001 S C M R 1

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Ch. Muhammad Arif, JJ

HAFIZ BROTHERS (PVT.) LTD. and

versus

Messrs PAKISTAN INDUSTRIAL CREDIT AND

INVESTMENT CORPORATION LTD. ---Respondent

Civil Petition No. 1168 of 1997, decided on 20th October, 1998.

(On appeal from the judgment dated 11-7-1997 passed by the High Court of Sindh, Karachi in I.A. No.47 of 1993).

(a) Banking Tribunals Ordinance (LVIII of 1984)---

----S.9---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.7---Constitution of Pakistan (1973), Art. 185(3)---Recovery of Bank loan---Failure to issue process in accordance with the provisions of S.7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 ---Effect---Banking, Tribunal decreed the suit and the judgment was upheld by High Court on the ground that the petitioners had been served in accordance with law and the Rules applicable when the suit was filed---Leave to appeal was refused.

Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 ref.

(b) Banking Tribunals Ordinance (LVIII of 1984)---

----S. 9---Civil Procedure Code (V of 1908), O.XXII---Suit for recovery of Bank loan---Suit against dead person---Validity---Institution of legal proceedings against dead person was of no avail to the concerned litigant--­Suit of the plaintiff against a dead person was incompetent and, therefore, nullity in law.

Ch. Muhammad Ashraf, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate- on-Record for Petitioners.

Syed Hamid Ali Shah, Advocate Supreme Court with Ejaz Ahmed Khan, Advocate -on-Record for Respondent.

Date of hearing: 20th October, 1998. 16

2001 SCMR 4

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

MUHAMMAD NASEER---Petitioner

versus

Mir AZHAR ALI TALPUR---Respondent

Criminal Petition No. 89-K of 1999, decided on 23rd May, 2000.

(On appeal from the order dated 12-10-1999 of the High Court of Sindh Bench at Sukkur in Criminal Miscellaneous Application No.D-181 of 1999.).

Constitution of Pakistan (1973)---

----Art. 199---Awarding of special costs by High Court in exercise of Constitutional jurisdiction---Validity---Petitioner filed Constitutional petition before High Court with ulterior and mala fide motive as to malign .the WAPDA Authorities and to avoid the payment of huge outstanding electricity charges and to evade action against him being said to be defaulter in respect of electric charges---High Court was quite competent to impose special costs on the petitioner as he, with the mala fide intent, made a false and frivolous complain, against the Authorities and moved the machinery of High Court in bad faith for taking action against the Authorities.

Khurshid Ahmad Naz Faridi v. Bashir Ahmed 1993 SCMR 639; Arwinder Singh Bagga v. State of U.P. and others AIR 1995 SC 117; Rudul Sah v. State of Bihar AIR 1983 SC 1086; Bhim Singh Mila v. State of Jammu and Kashmir AIR 1986 SC 494 and M.C. Mehta v. Union of India AIR 1987 SC 1086 ref

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd May, 2000.

2001 SCMR 8

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

GOVERNMENT OF SINDH and others---Appellants

versus

Mst. NAJMA---Respondent

Civil Appeal No.966 of 1993, decided on 24th May, 2000.

(On appeal from the judgment dated 12-10-1993 of High Court of Sindh, Karachi, passed Constitutional Petition No. D-2827 of 1993).

(a) West Pakistan Maintenance of Public Order Ordinance (XXIV of 1960)---

----S.3(1)---Constitution of Pakistan (1973), Arts. 199 & 185 (3)---Order of preventive detention of detenu, who was candidate in elections, passed by District Magistrate, was declared to be without lawful authority and of no legal effect by the High Court and a cost of Rs.5,000 each was imposed on District Magistrate and the Superintendent of Police personally ---Validity--­Leave to appeal was granted to consider as to whether any notice was required to be issued to the District Magistrate before awarding costs against him when he was already a party to the Constitutional petition; and whether High Court should have issued a show-cause notice to the Superintendent of Police before imposing the costs.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Order granting costs by High Court in exercise of said jurisdiction ---Validity--­Such order has to be based on valid, recognized principles of justice and equity and not on fanciful, arbitrary or capricious grounds---Superior Courts have to protect the Fundamental Rights of the people; and for achieving such object, the superior Courts can exercise all incidental and ancillary powers and also can adopt new strategies to enforce the Fundamental Rights.

Muhammad Ibrahim v. S.H.O., Police Station Sheikhupura 1990 PCr.LJ 1717; Arz Muhammad Umrani, Assistant Political Agent, Dera Bugti v. Atta Muhammad and another 1993 SCMR 633; Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others 1993 SCMR 639; Saheli, A Women's Resource Centre v. Commissioner of Police, Delhi and others AIR 1990 SC 513; Sebastian M. Hongray v. Union of India AIR 1984 SC 1026; Bhim Singh Mla v. State of Jammu and Kashmir AIR 1986 SC 494 and Arvinder Singh Bagga v. State of U.P. and others AIR 1995 SC 117 rel.

(c) West Pakistan Maintenance of Public Order Ordinance (XXIV of 1960)---

----S. 3(1)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Detention order---Awarding of costs by officials concerned ---Non­-issuance of show-cause notices to the officials concerned before imposing costs--- Validity ---Detention order passed by the officials was assailed before High Court and its propriety, correctness and validity was judicially examined under Art. 199 of the Constitution and it was not necessary to hear any of the officials concerned---Concerned officials were duly re red in the High Court---Material on the basis of which order for awarding costs was passed was thoroughly scrutinized by the High Court---Show-cause notice was to be issued when there was ambiguity and further clarification was essential for reaching to a final conclusion---If the facts were clear, definite and irrefutable, such notice would not be necessary, unless it was mandatory and a legal requirement---Show-cause notice, in circumstances, was not necessary.

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

----Arts. 185 & 199---Appeal to Supreme Court---Locus standi to file appeal---High Court under its Constitutional jurisdiction under Art. 199 of the Constitution imposed costs on the District Magistrate and Superintendent of Police in their personal capacity for their mala fide and illegal order passed against a citizen---Provincial Government filed appeal against the order of High Court---Validity---Provincial Government had no locus standi to file appeal before Supreme Court ---Government, instead officials, should have taken strict action against the officials for facie, mala fide and illegal act.

(e) Notice---

Show-cause notice---Issuance of when not mandatory ---Conditions--­Show-cause notice is issued when there is ambiguity and further clarification is essential for reaching to a final conclusion---Such notice will not be necessary unless it was mandatory and a legal requirement.

Munibur Rehman, Additional Advocate-Genera), Sindh for Appellants.

Respondent in person (absent)..

Qazi Faez Isa: Amicus curiae (on Court's notice).

Date of hearing: 24th May, 2000.

2001 SCMR 14

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and

Abdul Hameed Dogar, JJ

THE STATE through Deputy Director Anti-Narcotic Force, Karachi---Petitioner

versus

Syed ABDUL QAYUM---Respondent

Criminal Petition No.81-K of 1999, decided on 23rd May, 2000.

(On appeal from the judgment, dated 28-4-1999 by the High Court of Sindh, Karachi passed in Criminal Bail Application No.342 of 1999).

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

----S.497(5)---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 14 & 15---Bail, cancellation of---Failure of prosecution to show any direct or indirect piece of evidence connecting accused with the crime---_ Reliance was placed on the statements of co-accused recorded by police during investigation---Nothing incriminating was found against the accused---Statements of co-accused could not be relied upon for the purpose of cancellation of bail.

The State through Director, ANF, Karachi v. Mubeen Khan 2000 SCMR 299 and Moula Bux and others v. The State and 2 others 1997 SCMR 292 ref.

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

----Ss. 161 & 162---Statement before police during investigation--­Evidentiary value ---Such statement is inadmissible in evidence.

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

----Ss.496, 497 & 498---Control of Narcotic Substances Act (XXV of 1997), S.51---Bail---Prohibition contained in S.51 of Control of Narcotic Substances Act, 1997---Applicability---Despite provisions contained in S.51 of Control of Narcotic Substances Act, 1997, Sessions Court and High Court had the powers to grant bail.

Gul Zaman v. The State 1999 SCMR 1271 rel.

Naraindas C. Motiani, Advocate Supreme Court/Advocate-on­-Record for the State.

Nawaz Khan Murwat, Advocate Supreme Court with, A.A. Siddiqui, Advocate- on-Record for Respondent.

Date of hearing: 23rd May, 2000:

2001 SCMR 17

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD SHOIB KHAN---Petitioner

versus

SECRETARY, MINISTRY OF HEALTH, C-BLOCK, ISLAMABAD and 3 others---Respondents

Civil Petition No.494 of 1997, decided on 20th March, 2000.

(On appeal from the judgment, dated 13-3-1997 by the Federal Service Tribunal, Islamabad in Appeal. No.69(K) of 1997).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service ---Time-barred appeal---Departmental appeal was delayed by more than one and a half years which was dismissed and result was conveyed to the civil servant---Memo. of appeal under S.4 of Service Tribunals Act, 1973, was beyond time and the same was dismissed as incompetent--­Validity ---Civil servant was himself to blame for not persuing the matter with due diligence and order of his removal from service, dated 27-8-1995 was made subject-matter of departmental appeal by him only on 31-12-1996 and that too without showing sufficient cause for belated resort thereto--­Order of Service Tribunal, had not been shown to be suffering from any taint whatever---Leave to appeal was refused.

The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing:. 20th March, 1998

2001 SCMR 19

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Member, Board of Revenue and another---Petitioners

versus

GHULAM MUHAMMAD and 4 others---Respondents

Civil Petition No. 313-Q of 1999, decided on 26th June, 2000.

(On appeal from the judgment, dated 3-6-1999 passed by High Court of Balochistan, Quetta in Civil Revision No.400 of 1996 and 121 of 1997).

(a) Limitation Act (IX of 1908)---

----S.5---Constitution of Pakistan (1973), Art. 185(3)---Petitionfor leave to appeal on behalf of Government was barred by limitation---Reason for condonation of delay was stated to be non-cooperation between various Government functionaries ---Validity ---State and subject both being at par in the eye of law, Government agencies could not be treated preferentially--­Supreme Court, while deprecating the conduct of Government functionaries responsible for such delay, but in view of peculiar circumstances of the case and impugned order having been found to be void and liable to be set aside condoned the delay in the interest of justice.

Invariably the cases instituted either before High Court or Supreme Court on behalf of the Government suffer from laches in complying with prescribed statutory provisions of limitation due to negligence of concerned authorities, who are competent to launch judicial proceedings, inasmuch as to overcome the question of limitation, no cogent reason is assigned explaining the delay of each day preventing them from filing proceedings in the Court. One of the reasons for it could be an unrecognized inbuilt non-cooperation between various Government functionaries either intentionally or for some extraneous considerations with an object to extend benefit to opponents/litigants at the costs of the Government rendering it ultimately to lose its cases up to the Apex Court. State and subject both are at par in the ­eye of law, therefore, Government agencies are not to be treated preferentially.

In the present case one can infer quite conveniently that no co­operation was extended to the A.O.R. for filing petition before the Court in time. A careful perusal of the application manifestly makes it clear that the A.O.R. was not provided with complete record of the case required to be submitted before Supreme Court alongwith proceedings despite of repeated enquiries/requests made by her through phones to the concerned authorities. Resultantly, the petition became lime-barred. If she had not raised the plea that impugned order was a void order, there would have been a great, difficulty for the Government to argue its case before Supreme Court on merits. Thus, in the interest of the Government, Government Officers, who are at the helm of affairs, must adopt a comprehensive procedure to ensure that its cases should not fail before the Courts on technical grounds like limitation etc. and efforts must be made to institute the proceedings withi4 time instead of succumbing to criminal negligence of few officers/officials who, in order to oblige the opponent litigant for the sake of their handful gains, managed to cause delay for one or the other reason in approaching the Court, and ultimately, such unscrupulous persons make attempt to shift their liability either on the- Law Officers or on the Courts by advancing an argument that their case has not been presented properly or the Court has given an adverse decision. Such officers, who are responsible for causing delay in instituting proceedings, never realize that though they had made some gain but due to their such conduct proportionately the Government had suffered huge losses as in the present case, the total amount which has been received by the Government of Balochistan by handing over the land to respondent is being claimed by the respondents considering themselves to be its owners.

As such keeping in view peculiar circumstances of the case and examining the impugned order thoroughly Court held, that it being- a void order deserved to be set aside, therefore, delay if caused in filing the petition, was condoned in the interest of justice.

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

----S.151---Inherent power of Civil Court---Scope---Neither in the original plaint, prayer was made for granting decree in terms of money nor during the pendency of the suit, plaint was sought to be amended by incorporating the alternative relief---High Court, under S.151, C.P.C. travelled beyond its jurisdiction by granting relief in terms of money to the plaintiffs and passed an order which had no legal sanction in law.

PLD 1978 SC 220 distinguished.

Messrs Malik and Haq and others v. Muhammad Shames-ul-Islam Chaudhri and 2 others PLD 1961 SC 531 fol.

Ghulam Mustafa Mengal, A.A.-G. and Ashraf Abbas, Advocate-­on-Record for Petitioners.

Ghulam Ahmad Sheikh, Advocate Supreme Court and W.N. Kohli, Advocate-on-Record for Respondents.

Date of hearing:: 26th June, 2000.

2001 SCMR 25

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Rana Bhagwan Das, JJ

ALLAH WADHAYO and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.312 of 1997, decided on 16th May, 2000.

(On appeal from the judgment of High Court of Sindh, Bench at Sukkur, dated 4-8-1996 passed in Criminal Appeal No.34 of 1995).

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

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Conviction of accused while co-accused were acquitted on the basis of same material--­Validity---Leave to appeal was granted to consider whether evidence on record was sufficient for conviction of the accused persons when their co-­accused were acquitted on the basis of same evidence.

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

----S.302---Implicating innocent person in the cases---Effect---Growing tendency to rope as many members of the family of an accused as possible deprecated as such practice often lead to the acquittal of the real culprit as well in view of exaggeration and concoction of the prosecution case.

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

----S.302---Appraisal of evidence---Plea of alibi---Accused was a police official posted at 325 miles away from the place of occurrence---Senior Officers of the accused had certified that at the time of occurrence he was on duty---Plea of alibi was taken by the accused at the earliest possible opportunity before the Investigating Officer---Effect---Police either did not choose to verify the plea of alibi or after verification did not disclose the same---Such circumstance had cast a serious doubt on the prosecution case---Possibility of false involvement of the accused, thus, could not be ruled out---Judgment and conviction of the accused could not be sustained and the same were set aside by Supreme Court.

Aminullah v. State PLD 1976 SC 629 and Khushi Muhammad v. State 1983 SCMR 697 ref.

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

----Ss. 302 & 303---Defence plea---Proof---Onus---Scope---Where accused raises a defence plea falling within the exception the accused is only required, to show that there is a reasonable possibility of his case falling within the said exception clause and the standard of proof of a. plea bringing the case of an accused within the exception clause need not be similar to the degree of proof as expected of the prosecution.

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

----S.302---Plea of alibi---Proof---Onus---Scope---Where the accused had taken plea of alibi right from the stage of investigation and the position of the accused was consistent and straightforward, burden of proof required of the accused stood discharged and it shifted to the prosecution.

Aminullah v. State PLD 1976 SC 629 ref.

(f) Precedent----

---- Verdict given in a criminal case generally must be confined to the facts of that particular case and cannot be universally applied to all cases.

Safdar Ali v. Crown PLD 1953 FC 93 and Abdul Majid v. State .1983 SCMR 310 ref.

Abdul Hafeez Lakho, Advocate Supreme Court for Appellants.

Abdur Rahim Kazi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate- on-Record for the State.

Date of hearing: 16th May, 2000.

2001 SCMR 31

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Ch. Muhammad Arif, JJ

Syed ILLYAS ALI ABBASI---Appellant

versus

Mst. ALLAH RAKHI through Attorney---Respondent

Civil Appeal No. 1580 of 1997, decided on 21st October, 1998.

(On appeal from the judgment dated 18-6-1997 of the Lahore High Court, Lahore, passed in S.A.O. No.20 of 1997).

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

----Ss. 5-A & 13---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether in the facts and circumstances of the case, Courts below should have exercised the discretion in favour of the tenant and whether the tenant had become defaulter in the payment of rent in consequence of statutory increase at the rate of 25 without a notice of demand from the landlord.

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

----Ss. 5-A & 13---Default in monthly rent---Failure to pay rent at the increased rate as envisaged by S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959--Effect---Rent Controller accepted the ejectment application as the tenant failed to deposit arrears of rent as directed by the Rent Controller---Tenant remained unsuccessful at the level of Lower Appellate Court as well as the High Court---Validity---Provision of S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 did not envisage automatic increase in rental at the rate of 25 % and demand for such increase was to be specifically, made by the landlord/landlady which fact was manifestly lacking in the case---Judgment of High Court .was set aside by Supreme Court and the ejectment application was dismissed by Supreme Court.

Haji Muhammad Ibrahim v. Haji Abdus Salam Bhatti 1996 SCMR 1042 and National Development Finance Corporation v. Naseem-ud-Din PLD 1997 SC 564 rel.

Muhammad Tariq v. Sardar Khan and 9 others 1998 CLC 1054 and Javed Iqbal v. S.M. Khuram Wasti, Advocate 2000 CLC 126 ref.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court and Tanvir Ahmad, Advocate- on-Record (absent) for Appellant.

Arshad Mahmood (Attorney) for Respondent.

Date of hearing: 21st October, 1998.

2001 SCMR 34

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Mian Muhammad Ajmal, JJ

AZIM KHAN---Petitioner

versus

Malik MOBEEN KHAN and others---Respondents

Civil Petition No.7-P of 1999, decided on 25th May, 2000.

(On appeal from the judgment dated 23-11-1989 of the, Peshawar High Court, Peshawar, passed in Civil Revision No.82 of 1989).

Muslim Law---

----Gift---Delivery of possession---Mere recital in the gift deed about the delivery of possession would not be sufficient to prove possession unless . livery of possession is positively proved by cogent .evidence.

1988 SCMR 485 distinguished.

PLD 1964 SC 143 ref.

Haji M. Zahir Shah, Advocate Supreme Court and Syed Safdar Hussain, Advocate -on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th May, 2000

2001 SCMR 36

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Iftikhar Muhammad Chaudhry

and Rana Bhagwan Das, JJ

FIDA JAN---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.7-Q of 2000, decided on 30th May, 2000.

(On appeal from the judgment dated 19-4-2000 passed by High Court of Balochistan in Criminal Appeal No. 366 of 1999).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 20---Search warrants, requirement of---Scope---Provisions of S.20 of Control of Narcotic Substances Act, 1997 does not place obligation upon Investigating Agency to obtain search warrants from the Special Judge before conducting a raid.

(b) Control of Narcotic Substances Act (XXV of 1997)---

---S.20---Constitution of Pakistan (1973), Art. 14---Raid without search warrant---Recovery of huge quantity of narcotics---Violation of Fundamental Rights--- Validity---Fundamental Rights enshrined in Art. 14 of the Constitution of Pakistan was inalienable rights and the same could not be denied to any citizen--Due care was taken by the raiding party in the present case as the party was not only headed by high officials of Police Department but they were also accompanied by Duty Magistrate--Police party had not committed violation of Fundamental Rights of the accused conferred upon him by Art. 14 of the Constitution in circumstances.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----S. 20---Non-compliance of provisions of S.20 of Control of Narcotic Substances Act, 1997---Effect---Provisions of S.20 of Control of Narcotic Substances Act, 1997, were directory in nature, therefore, its non­compliance could not be considered a strong ground for holding that the trial of the accused was bad in the eye of law.

(d) Control of Narcotic Substances Act (XXV of 1997)---

----S. 25---Criminal Procedure Code (V of 1898), 5.103---Recovery of narcotics---Failure to comply with the provisions of S.103, Cr.P.C.--­Effect---Application of. S.103, Cr.P.C. has been excluded under the provisions of S.25 of Control of Narcotic Substances Act, 1997.

State v. Bashir and others PLD 1997 SC 408 distinguished.

(e) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan (1973), Art. 185(3)---Recovery of 26 kilograms of Charas---Raid by C.I.A. Authorities---Contention of accused was that place of recovery was not under the exclusive control of the accused and C.I.A. Authorities had no jurisdiction to conduct raid in his house for the purpose of recovery of narcotics---Validity---Recovery of Charas was effected from the residential room of the accused---Accused during trial failed to substantiate that the recovered articles; were not in his exclusive possession, therefore, merely raising plea that some other persons also occupied the house was not sufficient to exonerate him from the charge--­C.I.A. Authorities had not proceeded with the matter after effecting recovery of narcotics---Trial Court had rightly convicted the accused and the appeal was dismissed by the High Court---Leave to appeal was refused.

Tahir Muhammad Khan, Advocate Supreme Court and M.W.N Kohli, Advocate-on-Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 30th May, 2000. .

2001 SCMR 41

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

RASHID AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 57 of 1996, decided on 31st May, 2000.

(On appeal from the judgment dated 21-11-1995, of the Lahore High Court, Lahore passed in Criminal Appeal No. 1108 of 1991).

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

----S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider as to whether defence evidence was not considered in the context of the burden of proof which according to the High Court had shifted on the accused and whether onus was on the accused to prove beyond reasonable doubt of it was to be considered on the balance of probabilities.

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

----S.5(2)---Appreciation of evidence---Illegal gratification ---Recovery of tainted money from the possession of the accused---Raiding party had neither heard the conversation between the accused and complainant nor saw the passing of money---Accused raised a plea that the amount recovered was not illegal gratification but was a contribution towards "Kabadi" match--­Accused produced defence witnesses in support of his plea, who were his colleagues and were present at' the time of handing over the tainted money in the office---Trial Court convicted the accused and High Court while maintaining the conviction reduced .the sentence--­Validity---Version of the accused seemed to be strong on evaluation of the case of prosecution and defence version on merits and placing them in juxtaposition with each other---Accused having succeeded in proving his case, conviction acid sentence awarded was set aside in circumstances.

Dr. Ghulam Hussain and others v. The State 1971 SCMR 35; Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Muhammad Ashraf v. The State 1995 SCMR 479; Ghazidino v. The State 1988 SCMR 637; Fazal Qadir v. The State 1989 PCr.LJ 108; Muhammad Amin v. The State PLD 1984 SC 343; Rashid Ahmad v. The State 1974 SCMR 249; Mian Abdul Rashid v. The State 1989 PCr.LJ 2017 and 1VIst. Ameer Khatun v. Faiz Ahmad and others PLD 1991 SC 789 ref.

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

----Ss. 4 & 5(2)---Initial burden to prove the case beyond any reasonable doubt always lies upon the prosecution---If accused succeeds in creating a reasonable doubt he is entitled to acquittal and for that purpose entire evidence produced by both sides is to be looked into.

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

----S. 340 (2)---Refusal on the part of accused to make statement on oath--­Effect---Provisions of S.340(2), Cr.P.C. have not compulsive effect on the accused and no adverse inference can be drawn if accused does not opt to make a statement.

Masood Mirza, Advocate Supreme Court and Mehmood A. Qureshi, Advocate- on-Record (absent) for Appellant.

M. Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 18th May, 2000.

2001 SCMR 46

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Mian Muhammad

Ajmal and Deedar Hussain Shah, JJ

NAZIR AHMED ---Petitioner

versus

MUHAMMAD SHARIF and others---Respondent

Civil Petition No.1091-L and Civil Miscellaneous Application No. 474 of 2000, decided on 2nd June, 2000.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.316 of 1998).

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

----S.12(2)---Allegation of fraud and misrepresentation, determination of--­Investigation into question of fact---Framing of issues ---Scope--­Determination of such allegations ordinarily involve investigation into a question of fact and in such cases an inquiry is ordinarily to be held to decide the matter---Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit---Matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application the Court may in its discretion adopt any mode for its disposal.

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

----S.12(2)---Constitution of Pakistan (1973), Art. 185(3)---Allegation of fraud and misrepresentation---Non-framing of issues---Petitioner with ulterior motives approached the Lower Appellate Court with application under S.12(2), C.P.C. to delay the matter so that the respondent might not be able to get the fruit of the decree---Lower Appellate Court dismissed the application without framing of issues and recording of evidence---Revision before High Court was also dismissed---Validity---Non-framing of issues and non-recording of evidence for the decision on the application under S.12(2), C.P.C. was not a condition precedent in the matter---Formulation of issues and recording of evidence was not necessary---Lower Appellate Court as well as the High Court had properly considered the material placed before them and they had rightly dismissed the application of the petitioner with sound and convincing reasons---No infirmity and/or illegality in the judgment of High Court warranting any interference by Supreme Court--­Leave to appeal was refused.

Ghulam Muhammad v. M. Ahmad Khan and others 1993 SCMR 662; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 ref.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd June, 2000.

2001 SCMR 51

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

MUHAMMAD ANWAR ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.55 of 1999, decided on 2nd June, 2000.

(On appeal from the judgment, dated 23-6-1996 passed by Lahore High Court, Lahore in Criminal Appeal No. 192 and Murder Reference No.71 of 1992).

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

----Ss.105, 106 & 302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider as to whether the accused in the circumstances of case had exercised the right of self-defence, therefore, extreme penalty of death was not called for; and whether High Court had appraised the evidence in conformity with the well-established principles relating to appreciation of evidence as laid down by the superior Courts to ensure safe administration of justice in criminal cases.

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

----Ss.105 & 106---Self-defence, plea of---Proof---Onus---Where accused had taken the plea of self-defence, burden would shift upon him to prove the same.

Zarid Khan v. Gulsher and another 1972 SCMR 597 ref.

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

-----Ss.302, 105 & 106 --Appraisal of evidence---Right of self-defence, plea of---Accepting the plea in totality---Accused raised the plea during investigation---Trial Court relying on such plea awarded death penalty to the accused for the reason that the accused failed to prove such plea during the trial but co-accused were acquitted as the Trial Court disbelieved the ocular account of prosecution witnesses to their extent---High Court in appeal disbelieved the supporting evidence i.e. incriminating empties and revolver, produced by the prosecution but confirmed the death sentence of the accused---Validity---Where the High Court disbelieved the supporting evidence, the prosecution was left in possession of the ocular statement of both the eye-witnesses and the same could not be believed for the sake of safe-administration of justice unless there was some corroboration---Supreme Court accepted the plea of the accused made by him in his statement under S.342, Cr.P.C. in totality---No material was available on record to measure the apprehension of the accused of danger to his person as well as property which persuaded him to fire upon the deceased---By raising a plausible defence plea, the accused who though himself had not received even a single injury on his body nor any weapon had been recovered from near the dead body or from the possession of the companions of the deceased, the accused had created a strong mitigating circumstance in his favour on account of which he was not entitled to the normal penalty of death---Conviction under S.302, P.P.C. was maintained and sentence of death was converted into life imprisonment in circumstances.

Sultan Khan v. Sher Khan and others PLD 19 SC 520; Ashiq Hussain v. The State 1993 SCMR 417; Khalid Javid v. State 1984 PCr.LJ. .100; Ali Sher v. State PLD 1980 SC 317;Zaheeruddin v. The State 1993 SCMR 1628 and The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate- on-Record (absent) for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 2nd June, 2000.

2001 S C M R 56

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Iftikhar Muhammad Chaudhry and

Rana Bhagwan Das, JJ

MUNIR AHMED alias MUNNI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.146 of 1999, decided on 5th June, 2000.

(On appeal from the judgment, dated 6-10-1998 of Lahore High Court, Multan Bench, passed in Criminal Appeal No.47 of 1995 and M.R. No.70 of 1995).

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

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to determine as to whether the Courts below while convicting the accused and sentencing him-to death kept in view the principles of safe administration of justice enunciated by Supreme Court in a number of cases.

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

----S.342---Causing prejudice to accused---Failure to put incriminating piece of evidence to accused for reply under S.342, Cr.P.C.---Accused failed to challenge such failure---Effect---Where an incriminating piece of evidence is not put to an accused, the same has not to be considered as evidence against him---Absence of any challenge to such circumstances may in appropriate cases amount to admission that no prejudice thereby has been caused to the accused.

Allah Dad v. State PLD 1978 SC 1 ref.

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

-----S.302---Appraisal of evidence---No crime empty recovered from the place of incident---Absence of any positive report from Fire-arms Expert--­ Effect---Trial Court had wrongly relied upon the recovery of pistol from the possession of the accused, without recovery of any crime empty from the place of incident and in absence of any positive report from Fire-arms Expert creating any nexus between the crime weapon and the commission of the crime---High Court while maintaining the sentence of death awarded by the Trial Court, did not rely upon such piece of evidence and had completely ignored same in its judgment---Prosecution case did not inspire confidence and the conviction of the accused was founded on tainted evidence which could not be sustained in law---Judgments of Trial Court as well as High Court were set aside by Supreme Court.

Mian Qurban Sadiq Ikram, Senior Advocate Supreme Court 'and Tanvir Ahmed, Advocate-on-Record (absent) for Appellants.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 5th June, 2000.

2001 SCMR 60

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

ABDULLAH---Appellant

versus

SHAUKAT---Respondent

Civil Appeal No.179 of 1993, decided on 24th March, 1998.

(On appeal from the order/judgment, dated 9-3-1992 of the Lahore High Court, Multan Pench, Multan, passed in R.F.A. No.26 of 1992).

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

----O. XXXVII, R.3---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the contention that when the case was taken up by the District Judge, counsel had made an oral request for furnishing surety bond next day and the case was adjourned for doing so on the next day; otherwise there was no reason to postpone the hearing; that personal bond was submitted before the Court on the next day which was placed on record and that the suit of the respondent should not have been decreed in circumstances and that affidavit of the counsel who had appeared before District Judge had also been filed.

(b) Administration of justice-

---- Genuineness of judicial record cannot be sacrificed at the altar of expediency of a litigant.

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

----O.XXXVII, R.3---Failure to submit personal surety bond---Trial Court allowed the application for leave to defend suit, subject to deposit of surety bond---Trial Court on failure of the appellant to do the needful decreed the suit---Validity---Appellant had time to comply with the direction of the Trial Court and that too by submitting a personal surety bond between 18-1-1992 and 9-2-1992 which he failed to do---Failure of appellant was rightly considered by Trial Court and the High Court tantamounting to admission of the claim of the other side---No ground for interference of Supreme Court was made out in circumstances.

Muhammad Sayeed Akhtar, Advocate Supreme Court instructed by S. Inayat Hussain, Advocate-on-Record (absent) for Appellant.

Respondent: Ex parte.

Date of hearing: 24th March, 1998.

2001 S C M R 63

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

MUHAMMAD SULTAN---Petitioner

versus

MUHAMMAD SHAH DIN and others---Respondents

Civil Petition for Leave to Appeal No.157-L of 1998, decided on 7th January, 2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 5-3-1998 passed in Criminal Appeal No.85 of 1992).

Penal Code (XLV of 1860)----

-----S.302/34---Constitution of Pakistan (1973), Art 185(3)---Reductionin sentence by High Court---Trial Court sentenced one of the accused to death and the other was sentenced to life imprisonment---High Court while deciding the appeal altered the death sentence into life imprisonment whereas the other accused was acquitted of the charge---Leave to appeal was granted by Supreme Court to examine the contention of the complainant that whether High Court was justified in accepting the plea of self-defence when none of the accused persons was injured; whether High Court rightly discarded the testimony of the eye-witnesses wherein case of prosecution stood fully proved to the hilt; whether appreciation of evidence by High Court was based on sound judicial principles; whether the reasonings arrived at by High Court in passing order of acquittal was based on equitable considerations; whether the computation of death sentence to life imprisonment by the High Court was based on sound judicial principles; and whether the High Court had erred in law to reduce the sentence of death to life imprisonment.

Shahid Hussain Kadri, Senior Advocate Supreme Court with Muhammad Aslam Ch., Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th January, 2000.

2001 S C M R 65

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

ABDUL SAMAD UMRANI and another---Petitioners

versus

ZAHID ALI BADINI, DSP and 4 others---Respondents

Civil Petitions Nos. 111--Q and 116-Q of 1998, decided on 24th May, 2000

(On appeal from the judgment of the Balochistan Service Tribunal, Quetta, dated 26-6-1998 passed in S.A.No.52 of 1997).

Balochistan Deputy Superintendents of Police Service Rules, 1978--

----Rr.6 & 5---Balochistan Government Rules of Business, 1976, Rr.18 & 21---Constitution of Pakistan (1973), Art.212(3)---Method of initial recruitment and promotion to the post of Deputy Superintendent of Police--­Recommendations of Selection Committee for promotion of Inspectors of Police to the post of Deputy Superintendent of Police---Reversal of such recommendations by the Chief Minister of the Province and his Secretary--­Validity---Chief Minister of the Province was not authorised to make any promotion in view of the categoric provisions made in R.6 of Balochistan Deputy Superintendents of Police Service Rules, 1978---Principles.

Chief Minister was not authorised to make any such promotion in view of the categoric provisions as made in the Balochistan Deputy Superintendents of Police Service Rules, 1978. In this regard Rule 6 can be mentioned concerning with the method of initial recruitment and promotion to the post of Deputy Superintendent of Police.

A mechanism has been evolved regarding initial recruitment and by way of promotion to the post of Deputy Superintendent of Police by allocating 50% of quota to each category. It is also provided that such promotion shall be made from amongst the Inspectors whose names are placed in the Select List required to be prepared by the Inspector-General of Police as enshrined in sub-rule (2) of Rule 6. The Selection List has its own significance and no alteration or modification can be made therein without having the prior approval of Selection Authority constituted under rule 5 of the Balochistan Deputy Superintendent of Police Service Rules, 1978 and "means a Selection Committee consisting of Chief Secretary as its Chairman, Home Secretary and Inspector-General as its members, on the recommendations of or in consultation with which the Government may make appointment of the Deputy Superintendent of Police in Balochistan against the vacancies specified in sub-rule (b) of rule 6(1)". No change or modification whatsoever having been made in the Selection List by adopting the methodology as provided under the said rules and accordingly the question of promotion of any Inspector who was not in the Selection List does not arise.

Rules 18 of Balochistan Government Rules of Business, 1976 does not empower the Chief Minister to make such promotion for the simple reason that no such authority has been conferred upon the Chief Minister by the provisions as contained in rule 18 of the Balochistan Government Rules of Business, 1976 pertaining to "Constitution of Selection Board".

A procedure for appointment/promotion has been prescribed which cannot be disturbed by any one including the Chief Minister. The only option available for the Chief Minister was to invoke the provisions as contained in Rule 18(3) read with rule 21(v) through the Minister concerned.

The Chief Minister was not empowered to reverse the recommendations of the Selection Committee and his Secretary was absolutely not authorised to make any deletion, amendment or insertion as has been done by him in the recommendations of Selection Committee. The Chief Minister and his Secretary had exercised their authority arbitrarily having no legal sanctity at all.

Raja M. Afsar, Advocate-on-Record/Advocate Supreme Court for Petitioners.

Salahuddin Mengal, Advocate Supreme Court and Mrs. Ashraf Abbas, Advocate- on-Record for Respondents Nos. l and 2.

Date of hearing: 24th May, 2000.

2001 S C M R 71

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Deedar Hussain Shah, JJ

MUHAMMAD GUL---Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 82-K of 1999, decided on 23rd May, 2000.

(On appeal from the order of the High Court of Sindh, dated 14-6-1999 passed in Criminal Bail No.531 of 1999).

Criminal Procedure Code (V of 1898)---

-----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9-C--Bail, grant of---Recovery of 3000 Kilograms of Charas from the truck driven by the accused---Drug trafficking being a menace which was a problem for society at large and order of High Court refusing bail to the accused, from whom such huge quantity of Charas was recovered by the raiding party did not call for interference.

The State v. Mobin Khan 2000 SCMR 299 ref.

Gul Zaman v. The State 1999 SCMR 1271 distinguished.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Naraindas C. Motiani, Advocate-on-Record and Ainuddin Khan, A.A.-G., Sindh for the State.

Date of hearing: 23rd May, 2000.

2001 S C M R 73

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rashid Aziz Khan, JJ

MUHAMMAD ASHRAF---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.590-L of 1998, decided on 21st June, 2000.

(On appeal from the judgment of Lahore High Court, Lahore, dated 12-10-1998 passed in Criminal Appeal No.405 of 1994 and M.R. 178 of 1994).

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

----S.302/34---Appraisal of evidence---Eye-witnesses who were produced by prosecution were proved to be natural witnesses and in spite of having been through lengthy cross-examination their presence at the place of occurrence was not found to be doubtful---No motive of said witnesses for false involvement of the accused persons was suggested---Said witnesses thus, were found to be trustworthy by the Courts below---Motive of crime could not be proved for lack of evidence---Held, Courts had to look for the quality of evidence and not go for quantity as conviction could be sustained even on the statement of a solitary witness provided his statement inspired confidence.

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

----5.302/34---Appraisal of evidence---Common intention---Accused after raising Lalkara had come armed with a gun and thereafter committed the murder of two young persons---No overt act whatsoever was ascribed to the co-accused, they had not taken any step which could indicate that they shared common intention with the accused---Mere presence at the spot/at a place where Panchayat was held to resolve the matter, could not lead to the inference that co-accused shared common intention with the accused in circumstances.

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

----S.302/34---Appraisal of evidence---Motive---Held, there could be cases where motive was hidden deep in the minds of assailants or the motive could be different from what the witnesses thought that might be.

Noor Muhammad v. State 1999 SCMR 2722 ref.

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

----S.302/34---Appraisal of evidence----Sentence---Accused at the time of occurrence was a grown up man of 30 years of age with independent mind and thinking---Such a person could not be presumed that he would come under the influence of his elders in such a manner that he would commit the murder of two persons with gun---No mitigating circumstance thus, existed to interfere with sentence passed against the accused in circumstances.

Khawaja Sultan Ahmed, Senior Advocate Supreme Court and S, Abul Aasim Jafri, Advocate-on-Record for Petitioner.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate- on-Record for the Complainant.

Date of hearing: 20th June, 2000.

2001 SCMR 77

[Supreme Court of Pakistan]

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

and Ch. Muhammad Arif, JJ

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad

and others---Appellants

versus

Major (Retd.) MUHAMMAD AZAM and another---Respondents

Civil Appeal No.723 of 1994, decided on 13th May, 1997.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 23-4-1994, passed in Appeal No.401(R) of 1993).

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

----Art.212(3)---ESTACODE, 1989 Edn., Sl. Nos.112 & 115--­Probationer---Termination of service---Leave to appeal was granted to consider whether or not the service of the civil servant was terminated before expiry of extended period of probation in accordance with the provisions of relevant law/rules.

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

----S.4---ESTACODE, 1989 Edn., S1. Nos.112 & 115---Termination of service on last day of probation period---Civil servant was dismissed from service on the last day when probation period was ending---Dismissal letter was handed over after the working hours on the same day---Contention by Government was that any order could be made by the Competent Authority in relation to the civil servant by midnight---Validity---Contention was without merit---Working hours having come to close on any given day, the status of employee had to be governed, thereafter, by the position on the basis of continuity in his period of employment, according to law---Where the services of civil servant had not been terminated upto afternoon of the day, then the same were to be treated as without taint up to midnight on that date and beyond---Findings of facts by Service Tribunal that services of the civil servant had not been terminated during the office hours on the last day of probation muchless at any earlier date, in terms of S1.Nos.112 & 115 of ESTACODE, had not been shown to be suffering from any legal taint whatsoever---Peculiarities of the case of the civil servant were resolved in his favour, after considering the entire record, in presence of the parties--­Appeal was dismissed in circumstances.

Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510 and Muhammad Saddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

Mian Tariq Mahmood, Deputy Attorney-General with Ejaz Muhammad Khan, Advocate- on-Record for Appellants.

Tanvir Bashir Ansari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate- on-Record for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 3rd April, 1998.

2001 SC M R 83

[Supreme Court of Pakistan]

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

and Ch. Muhammad Arif, JJ

ALI AKBAR---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, LAHORE.

and others---Respondents

Civil Petition No.68 of 1999, decided on 6th May, 1999.

(On appeal from the judgment of the Punjab Service Tribunal, dated 19-11-1998 passed in Service Appeal No.581 of 1997).

Civil service---

----Misconduct---Dismissal from service---Civil servant, a police official was caught red-handed while taking bribe---Inquiry against civil servant was conducted by Superintendent of Police which was fair and impartial--­Independent witnesses had been examined by the Inquiry Officer (Superintendent of Police) who supported the allegations of corruption etc.---Civil servant was given ample opportunity to explain the circumstances against him---Nothing- could be spelt out from the record of the case to suggest that civil servant had been proceeded against on fabricated charges or he had been victimised in any manner---Guilt of civil servant appeared to have been fully established after the inquiry---Civil servant, held, was rightly found to be unfit for public service by Service Tribunal in circumstances.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate- on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th May, 1999.

2001 SCMR 84

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Qazi Muhammad Farooq

and Abdul Hameed Dogar, JJ

MUHAMMAD HANIF and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeal No.242 of 1996 and Criminal Petition for Leave to Appeal No.288-L of 1996, decided on 9th June, 2000.

(On appeal from the judgment, dated 29-5-1996 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.924 of 1978 and 89 of 1979).

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

-----Ss.302 & 307--Criminal' Procedure Code (V of 1898), S.397--­Sentence, appropriation of---Relief of appropriation of sentence already undergone by the accused was sought in the light of S.397, Cr.P.C. through a direction that the subsequent sentence of imprisonment for life awarded by High Court under S.302, P.P.C. should run concurrently with the previous sentence of ten years' R.I. awarded by the Trial Court under S.307, P.P.C.---Relief sought for was misconceived inasmuch as S.397, Cr.P.C. empowered the Court to direct separate sentence of separate trial to run concurrently when. the accused was already undergoing a sentence of imprisonment---Case of accused stood on a different footing altogether, as the sentence for the offence of murder was awarded to him by the Appellate Court in the same case and not in a separate case---Appeal being continuation of trial could not be equated with a separate trial---Besides, accused at that time was not undergoing the sentence of imprisonment awarded by the Trial Court for the offence of attempted murder---Case for grant of benefit of the sentence actually suffered by the accused under the order of Trial Court was made out on different grounds---Accused would have been well within his right to seek enforcement of the sentences concurrently, had he been convicted for the offence of murder also by the Trial Court and sentenced to imprisonment for life or the appeal filed by the State had been disposed of while he was undergoing the sentence awarded by the Trial Court---Grant of the benefit prayed for would secure the ends of justice and refusal would amount to putting premium on the delay in disposal of cases which was tarnishing the image of the judiciary gradually--­Sentence actually suffered by the accused out of the sentence of ten yeas, R.I. under S.307, P.P.C. awarded by Trial Court was, therefore, ordered to be deducted from the sentence of imprisonment for life under S.302, P.P.C. awarded by High Court.

Zakir Ali v. The State PLD 1977 Kar. 833; Altaf Hussain v. The State 1987 PCr.LJ 2169; Zora Singh v. The State AIR 1955 Pepsu 128; Baijnath v. State AIR 1961 Pat. 138 and Nagappa Vyankappa v. Emperor AIR 1931 Born. 529 distinguished.

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

-----S.302---Sentence---Expectancy of life---Principle of expectancy of life is not by itself sufficient for withholding the normal sentence of death for murder.

Mian Aftab Farrukh, Senior Advocate Supreme Court for Appellants (in Criminal Appeals Nos.242 and 288-L of 1996).

Ch. Amir Hussain, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate- on-Record (absent) for Petitioners.

Sardar Muhammad Siddique, Advocate Supreme Court for the State.

Date of hearing: 9th June, 2000.

2001 SCMR 89

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

MAQBOOL AHMED ---Petitioner

versus

GUARDIAN JUDGE, LAHORE and 15 others---Respondents

Civil Petition No. 15.22-L of 1997, decided on 12th February, 1998.

(On appeal from the judgment, dated 12-11-1997 by the Lahore High Court, Lahore in Writ Petition No. 18798 of 1997).

Constitution of Pakistan (1973)---

----Art.185(3)---Inheritance---Distribution of shares of deceased ---Validity--­Trial Court directed the petitioners to make distribution in accordance with the shares of the heirs of the deceased according to Islamic law---Resolution of the dispute had not been shown to be suffering from any infirmity in law-­-Such direction could not but be held to be advancing the cause of justice--­Leave to appeal was refused.

Syed Nadeem Saqlain, Advocate Supreme Court with Mian Ataur Rehman, Advocate- on-Record for Petitioner.

Zaffar Iqbal, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Respondents Nos.3 and 7.

Shahzad Shoukat, Advocate Supreme Court with Tanvir Ahmad Khan, Advocate- oh-Record for Respondents Nos.8, 10, 12 and 14.

Nemo for the Remaining Respondents.

Date of hearing: 12th February, 1998.

2001 S C M R 90

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Hamid Ali Mina, JJ

ABDUL MAJEED---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.218 of 1998, decided on 2nd June, 2000.

(On appeal from the judgment, dated 24-7-1997 of the Lahore High Court, Lahore, passed in Criminal Appeal No.399 of 1995).

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

----Ss.302 & 324---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to the accused to examine the question whether the evidence on record had been appraised by the Court below keeping in view the principle settled by the superior Courts or not.

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

----Ss.302 & 324---Appreciation of evidence---Interested witnesses---Rule that the evidence of interested eye-witnesses should not be believed at all is not inflexible.

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

----Ss.302 & 324---Appreciation of evidence---Principle---Grain is to be sifted from chaff and thereafter if a portion of a certain evidence appears to be true, the same can be used against the accused.

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

----Ss.302 & 324---Appraisal of evidence---Accused had been' found to have fired effectively at the deceased---Ocular account had been accepted against the accused for cogent and believable reasons---Medical evidence and abscondence of accused had corroborated the ocular testimony---Findings of the Courts below suffered from no error---Conviction and sentence of accused were upheld accordingly.

(e) Criminal trial--

----Evidence---Appreciation of evidence---Principle---Grain is to be sifted from chaff and thereafter if a portion of a certain evidence appears to be true, the same can be used against the accused.

Syed Ali Hassan Gillani, Advocate Supreme Court for Appellant. M. Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 2nd June, 2000.

2001 SCMR 94

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Qazi Muhammad Farooq and

Abdul Hameed Dogar, JJ

SABIR and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.259 and 260 of 1994, decided on 8th June, 2000.

(On appeal from the judgment of the Peshawar High Court, Circuit Bench, Abbottabad in Criminal Appeal No.54 of 1991 in Murder Reference No.6 of 1991 and 56 of 1991).

Penal Code (XLV of 1860)---

----S.302/34---Appraisal of evidence---Immediate apprehension of the death of the deceased being not eminent, non-attestation of the report of the occurrence made by the deceased in injured condition in the hospital either by the Medical Officers or any other' person could not render the same to be false---Deceased, while injured, was not only conscious and able to speak but had made the statement voluntarily ---Expiry of the deceased after five days of the incident also showed that there was no imminent danger of his death and he had made the statement consciously which was corroborated by medical evidence and the motive---High Court, for convincing reasons had commuted the death sentence of each accused to imprisonment for life---Life imprisonment having been served out by the accused could not, even otherwise, be enhanced to death---Impugned order passed by High Court needed no interference and the same was upheld accordingly.

Mst. Razia Begum v. Jehangir and others PLD 1982 SC 303; Mewa v. Emperor AIR 1935 Lah. 337 and K. Ramchandra Reddy and another v. The Public Prosecutor AIR 1976 SC 1994 ref.

Mian Aftab Farrukh, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.259 of 1994).

Rashid-ul-Haq, A.A.-G., N.-W.F.P. for the State (in Criminal Appeal No.259 of 1994).

Abdul Karim Kundi, Advocate Supreme Court and Saeed Akhtar, Advocate Supreme Court for the Complainant (in Criminal Appeal No.259 of 1994).

Syed Zafar Ali Shah, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in Criminal Appeal No.260 of 1994).

Nemo for Respondents (in Criminal Appeal No.260 of 1994).

Dates of hearing: 1st and 8th June, 2000.

2001 SCMR 99

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Mrs. NARGIS LATIF---Petitioner

versus

Mrs. FEROZ AFAQ AHMED KHAN---Respondent

Civil Petition No.720-K of 1999, decided on 6th July, 2000.

(On appeal from the judgment, dated 26-10-1999 of the High Court of Sindh, Karachi, passed in First Rent Appeal No.664 of 1998).

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

----O. V, R.20---Substituted service---Scope---Unless all efforts to effect service in the ordinary manner are verified to have failed, substituted service cannot be resorted to.

1996 SCMR 1703; PLD 1998 Lah. 118; 1995 MLD 170; 1993 CLC 2303 and 1984 CLC 2855 ref.

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

----O. V, R.20---Substituted service, order of---Scope---Where, in spite of various efforts and issuance of notices on different dates, service could not be effected on the respondent, direction by Trial Court for substituted service was as effective as personal service---Trial Court, on failure of the respondent to appear after the substituted service was effected, could hear the suit ex parse.

PLD 1979 SC 18; 1993 MLD 54, 1988 CLC 292 AND PLD 1975 Azad J&K 122 ref.

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

--S.15---Civil Procedure Code (V of 1908), O.V, R.20---Ejectment of tenant---Default in payment of monthly rent ---Pagri, proof of---Adjustment of amount of Pagri against rent due---Ex pane proceedings against tenant--­Despite repeated notices issued by the Rent Controller, tenant did not appear in the Court---Tenant remained absent from Trial Court even after issuance of substituted service---Rent Controller ordered for ejectment of the tenant and order was upheld by High Court---Contention raised by the tenant was that Rent Controller failed to adjust the amount of "Pagri" paid to the landlady against the rent due---Validity---Where the receipt of "Pagri" produced by the tenant was unsigned and undated, the tenant failed to prove that such amount was paid to the landlady and the receipt had been rightly discarded by the Rent Controller---Amount of Pagri could not have been adjusted against rent---No illegality or irregularity had been committed either by the Rent Controller or by the High Court and ex parte decree was passed after completion of all necessary formalities as envisaged in O. V, R.20, C P.C.

Syed Haider Ali Pirzada, Advocate Supreme Court and A. Aziz Khan, Advocate- on-Record for Petitioner.

Abdul Rahim Kazi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate- on-Record for Respondent:

Date of hearing: 6th July, 2000.

2001 SCMR 103

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

KHALID QURESHI end 5 others---Petitioners

versus

UNITED BANK LIMITED I.I. CHUNDRIGAR ROAD, KARACHI---Respondent

Civil Petition No.286-K of 2000, decided on 28th July, 2000.

(On appeal from the judgment, dated 17-4-2000 of the Sindh High Court, Karachi, passed in I.A. No.D-15 of 2000).

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----Ss. 9 & 22---Baking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.6(1)(a)---Constitution of Pakistan (1973), Art.185(3)---Recovery of damages against Bank---Time-barred claim, revival of---Effect of provision of S.22, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Damage to the petitioner was allegedly caused in the year 1980 and the suit for recovery of the damages was filed after the lapse of the period of limitation---Suit as well as the appeal were dismissed by High Court---Contention of the petitioner was that right extinguished due to bar of limitation was revived by virtue of the provisions as contained in S.22(1), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and the suit was time-barred as no remedy was available to the petitioner prior to the promulgation of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997--­Validity---Petitioner could have invoked the jurisdiction of Special Court under S.6(1)(a) of Banking Companies (Recovery of Loans) Ordinance, 1979, and the suit could have been filed because the Special Court had jurisdiction in respect of a claim filed by banking company against a borrower or by a borrower against a banking company ---Where such remedy was available to the petitioner and he failed to avail the same, the petitioner could not file the suit on the basis of provision as contained in S.22(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Claim of the petitioner was time-barred and S.22, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 could not render any assistance to the petitioner and the time-barred claim could not be revived or reopened---Rights once extinguished could not be revived unless so provided in specific manner and the provision as contained in S.22(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, did not give any such impression---Courts below had acted in accordance with law and within the parameters of agreed stipulations between the parties---Judgment of High Court was free from any legal infirmity and did not call for any interference--Leave to appeal was refused by the Supreme Court.

(b) Interpretation of statutes---

---- Absurdity in a provision---Initial presumption is that an absurdity is not intended by the law-maker---Interpretation, which leads to manifest absurdity, should, if possible, be avoided---If proposition accepted, leads to absurd result, there is always a presumption against such absurdity.

PLD 1964 Dacca 756; PLD 1962 Lah. 878; PLD 1964 Lah. 101; PLD 1966 Azad J&K 138 and PLD 1959 Quetta 1 ref.

(c) Interpretation of statutes---

---- Language of statute---Modification---Principle---Courts are not only competent to modify the language of the statute to give effect to the manifest arid undoubted intention of the Legislature, but are under st4tutory obligation to supply the omission with a view to prevent the defeat of the very object of the statute.

PLD 1965 Pesh. 65 ref.

(d) Interpretation of statutes---

---- Absurdity alleged in a statute---Principle---Remedy---Duty of Court--­Court can fill in the gaps in a piece of legislation, where a plain construction leads to absurd results---Initially the Court is to presume that an absurdity has not been intended by the law-maker.

PLD 1964 Dacca 773; PLD 1961 SC 119 and Interpretation of Statutes by M. Mahmood ref.

(e) Interpretation of statutes-----

---- Object of statute---Interpretation, which is more in consonance with the avowed policy underlying the statute as decipherable from its title and preamble is to be preferred to an interpretation, which is at tangent with its object.

PLD 1972 Kar. 421 ref.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S.22 (2)---Past transaction, revival of---Scope---Provision of S.22(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, cannot abridge, abrogate or infringe such rights which have accrued in favour of the parties by any means.

(g) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S.22(2), proviso---Expression "past transaction" and exclusion of word "closed "---Object and scope---Such exclusion was indicative of the fact that the past transactions regarding which no suit could be instituted or settlement made, could be brought before Banking Court and a fresh cause of action was to be available for the purpose of limitation, filed on the date when Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was promulgated---Real intention of exclusion of word "closed" in S.22(2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was to save financial institutions/Banks from huge loss and enabling them to file their claims (not adjusted, decided or settled previously) on the basis of fresh cause of action made available where the right to sue existed on the date of promulgation of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Rights which had extinguished were never revived under the provision of S.22(2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

(h) Interpretation of statutes---

---- Object of statute---Where main object and intention of a statute is clear, it must not be reduced to a nullity by draftsman's unskilfulness or ignorance of law, except in a case of necessity, or absolute intractability of the language used.

Interpretation of statute by Maxwell, 11th Edn., p. 221 ref. .

(i) Interpretation of statutes---

---Language of a statute---Object and intention----Court of law is not authorized to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker to supply the omission in order to avoid doing a manifest injustice---Object and intention of a statute cannot be ignored and the entire statute is to be examined before any particular provision can be interpreted.

PLD 1973 Lah. 114; Colonial Sugar Refining Company Limited v. Irving 1905 AC 369 and In re: Joseph Suche & Co. Limited (1875) 1 Ch. D 48 ref.

(j) Interpretation of statutes---

---- Statute purporting to transfer jurisdiction over certain causes of action may operate retroactively ---Retroactivity of a statute---Principle---Change of forum by a law is retrospective being a matter of procedure only---Where in such process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts do not even in the case of a procedural statute" favour an interpretation giving retrospective effect to the statute---Courts favourably incline towards giving effect to such procedural statute retroactively where the new procedural statue is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned.

Colonial Sugar Refining Company Limited v. Irving 190 AC 369: Joseph Suche & Co. Limited (1875) 1 Ch.D 48; Crowfard on Construction of Statutes, 1940 Edn., p.581; The State v. Muhammad J D 965 SC 681; PLD 1966 Kar. 480 and PLD 1973 Lah. 114 ref.

(k) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 22(1)---Past transaction, revival of---Retrospective effect---Scope--­Right extinguished due to bar of limitation cannot be revived by virtue of the provisions as contained in S.22(1) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, as no retrospective effect has been given to the same.

(l) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

Mn----S.22(2)---Banking Tribunals Ordinance (LVIII of 1984), S.12---"Mark-up based transaction" and "interest-based transaction" ---Removal of distinction or disparity between the two transactions---Scope---Provision of S.22(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was enacted to remove the anomaly pertaining to "mark-up-based transaction" as the provisions of Limitation Act, 1908, were not made applicable in such-like cases by virtue of S.12 of Banking Tribunals Ordinance, - - ' "interest based transactions" were excluded from the domain of provision of S.12 of Banking Tribunals Ordinance, 1984---In order to remove such distinction or disparity in-between the two transactions; S.22 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was enacted so that it could save the financial institutions/Banks from huge loss by which they might have collapsed and, accordingly, "fresh cause of action" was made available regarding "mark-up ­based transactions" to overcome hurdle of limitation.

N.D.F.C. v. Anwar Zaib White Cement Ltd. 1999 MLD 1988 ref.

A.R. Akhtar, Advocate Supreme Court/Advocate-on-Record for Petitioners.

Arif Hussain Khilji, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record (absent) for Respondent..

Date of hearing: 19th July, 2000.

2001SCMR114

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Iftikhar Muhammad Chaudhry, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB

and others---Petitioners

versus

MUHAMMAD AZAM ANJUM and others---Respondents

Civil Petitions Nos. 957-L and 850-L of 2000, decided on 4th July; 2000.

(On appeal from the judgment dated 1-3-2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No.1610/98).

Constitution of Pakistan (1973)--

----Art. 212(3)---Charge of procedural irregularity---Civil servant did not cause any loss to the Government and the other civil servant proceeded against for similar charges had been exonerated of the charges---Service Tribunal allowed the appeal of the civil servant---Contention by the Authorities was that the, Tribunal should have restored the punishment imposed by the Competent Authority--Validity---Neither any legal flaw could be indicated in the judgment of the Tribunal, nor any substantial question of law of public importance was involved in the mater--- Leave to appeal was refused.

M. Anwar Ghuman, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate- on-Record for Petitioners (in C.P. No.957-L of 2000).

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate- on-Record for Petitioners (in C.P. No.850-L of 2000).

Nemo for Respondents.

Date of hearing: 4th July, 2000.

2001 SCMR 116

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

NATIONAL INVESTMENT TRUST LTD. ---Petitioner

versus

SAMI ULLAH and another---Respondents

Civil Petition for Leave to Appeal No. 285-K of 2000, decided on 3rd August, 2000.

(On appeal from the judgment of Federal Service Tribunal dated 84-2000 passed in Appeal No. 611(K) of 1999).

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

----S. 2-A---Banks Nationalization Act (XIX of 1974), S.11---Employees of National Investment Trust---Status of civil servant---Validity---Federal Government under the provisions of S. 11, Banks Nationalization Act, 1974 has the control, management and administration over the affairs of the Trust---Employees of the Trust are-deemed to be civil servants within the purview of S.2-A of Service Tribunals Act, 1973.

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

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S. 2-A---General Clauses Act (X of 1897), S. 6 (c)--Settlement of dues after retirement of civil servant---Voluntary Separation Scheme---Civil servant was initially an employee of Ministry of Finance and was later on selected as Officer Grade-III in National Investment Trust---Voluntary Separation Scheme was referred by the Trust to its employees and the civil servant accepted the same---Period of service of the civil servant with the Federal Government in Ministry of Finance was rot included for the purpose ,of retirement and settlement of dues pursuant to the Scheme---Service Tribunal, on appeal directed that period of service of civil servant in the Ministry of Finance be included in his service---Validity---Civil servant who had applied for his appointment through proper channel and there was no break in his service was entitled to service benefits on voluntary retirement---Civil servant was also governed by S. 6(c) of General Clauses Act, 1897 for computation of period of service for receiving settlement dues pursuant to the acceptance of option for Voluntary Separation Scheme---Service Tribunal was right in arriving at the conclusion by allowing the civil servant's appeal and the judgment of the Tribunal did not suffer from any inherent infirmity or Jurisdictional error---Indulging of public functionaries in litigation at public expense instead of being fair and reasonable towards civil servants was deprecated by Supreme Court---Public functionaries should act fairly, justly and equitably---Leave to appeal was refused by the Supreme Court.

Noor Muhammad Shaikh, Advocate Supreme Court.

Nemo for Respondents.

Date of hearing: 3rd August, 2000.

2001 SCMR 121

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUHAMMAD SHERAZ WARIS and 3 others---Petitioners

versus

GOVERNMENT OF SINDH through Secretary Health, Karachi and others ---Respondents

Civil Petitions Nos. 465-K, 470-K, 479-K and 529-K of 1999, decided on 1st August, 2000.

(On appeal from the judgment dated 30-6-1999 of the High Court of Sindh, Karachi in Constitutional Petitions D-657 to 660 of 1999).

(a) Sindh Permanent Residence Certificates Rules, 1971---

----R. 5---Permanent Residence Certificate for admission in educational institutions--- Permanent Residence Certificate and domicile ---Distinction--­Domicile of a person is his legal status, one may qualify to be domiciled of two different countries under the relevant rules---Permanent residence is a question of fact and a person cannot be assumed to be a permanent resident of two different areas.

(b) Prospectus of Dow Medical College Karachi for Year 1998-99---

----R. 7 (h)---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Constitutional petition---Conduct of petitioner---Effect---Admission in Medical College--- Application for admission by the candidate in two Medical Colleges in two different provinces during the same session---Candidate having used Domicile/Permanent Residence Certificate of more than one district for his admission in two different medical colleges was disqualified and ineligible for the admission---Such candidate not found to be entitled to the discretionary and equitable relief of the High Court which dismissed his Constitutional petition on the basis of suppressing the material facts while submitting his admission form---Validity---Fact of applying in two medical colleges during the same session warranted disqualification for admission of the candidate under the rules and was disqualified and was found ineligible for admission in the Medical College under the provisions of R. 7(h) of Prospectus of Dow Medical College, Karachi for year 1998-99---Candidate had, not approached the Court for discretionary and equitable relief with clean hands---Where the petitioner furnished untrue information to the Authorities and also suppressed material facts while submitting the papers, such conduct of the petitioner could not be termed to be above board, and same disentitled him to the discretionary and equitable relief under the Constitutional jurisdiction of High Court---Leave to appeal was refused by the Supreme Court.

Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Muhammad Aman and Atta Muhammad 1982 SCMR 270; Raza Khan v. Vice­-Chancellor, N.-W.F.P. University of Engineering and Technology Peshawar 1982 SCMR 560; Deen Carpets Limited v. Iqbal Ghuman PLD 1989 SC 516; Ahmad Khan v. Custodian of Evacuee Property PLD 1963 (W.P.) Kar. 450 and Syed Shah v. Political Agent, Bajaur Agency PLD 1981 Pesh. 57 ref.

Khalilur Rehman, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate- on-Record for Petitioners.

Sarwar Khan, Additional Advocate-General, Sindh for Respondents.

Date of hearing: 1st August, 2000,

2001 S C M R 125

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Munir A. Sheikh and Qazi Muhammad Farooq, JJ

AMJAD ALI and others---Petitioners

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others ---Respondents

Civil Petitions Nos. 146-L, 150-L, 1731-L and Criminal Originals Nos. l and 2-L in Civil Petitions Nos. 146-L and 150-L of 2000, decided on 31st July, 2000.

(On appeal from the judgment, dated 12-1-2000 passed in Writ Petition 6496 of 1996 and 22-6-2000 of the Lahore High Court passed in I. C. A. No. 1102 of 1999).

Board of Intermediate and Secondary Education, Faisalabad Employees (Service) Regulations---

----Relgn. 12(2)---Constitution of Pakistan (1973), Art.212(3)---Ad hoc appointment ---Termination---Failure to provide opportunity of hearing--­Vested right of ad hoc appointee---Petitioners were appointed on ad hoc basis and their services were terminated before expiry of period of probation--­Constitutional petition filed by the petitioners were dismissed by High Court---Contention by the petitioners was that no opportunity of hearing was provided to them before terminating their services---Validity---Opportunity of hearing to the petitioners in circumstances was not necessary as termination was made in accordance with terms and conditions of service as contained in their appointment letters and the same had been accepted by the petitioners---Where the terms and conditions of the appointment letter were invoked, the petitioners could not object to the same---Petitioners could not take any objection to their termination as they had not been appointed on regular basis---Ad hoc appointment against a post was only for a fixed period and the appointee had not vested right to claim continuation in service and appointees had not vested right to challenge the act of termination of their service---Leave to appeal was refused.

Malik Noor Muhammad Awan, Advocate Supreme Court, Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners (in Civil Petitions Nos. 146-L and 150-L of 2000).

Qazi Mohyuddin, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent.

Malik Noor Muhammad Awan, Advocate Supreme Court and Tanvir Ahmad, Advocate -on-Record for Petitioners (in Civil Petition No. 1731-L of 2000).

Qazi Mohyuddin Muhammad Awan, Advocate Supreme Court and M. Aslam Ch., Advocate-on-Record for Respondents Nos. 1 and 2.

Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Abhl Aasim Jafri, Advocate-on-Record for Petitioners (in Crl. Org. Nos. l and 2-L of 2000) .

Tanvir Ahmad, Advocate-on-Record for Respondents.

Date of hearing: 31st July, 2000.

2001 S C M R 130

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah

and Hamid Ali Mirza, JJ

ASHIQ ALI and another---Petitioners

versus

MEHAR ELAHI and 13 others---Respondents

Civil Petition No.81-K of 2000, decided on 2nd August, 2000.

(On appeal afrom the order, dated 22-12-1999 of the High Court of Sindh, Karachi in First Rent Appeal No.553 of 1999).

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

----Ss.15, 16(1) & 16(2)---Constitution of Pakistan (1973y, Art.185(3)--­Default in deposit of arrears of rent as ordered by Rent Controller---Striking off defence---Concurrent findings of fact by Courts below---Tenant claimed to have deposited monthly rent in the miscellaneous case---Rent Controller directed the tenant to deposit the arrears of rent in the Court but the amount was not so deposited---Rent Controller struck off the defence of the tenant and passed order of his ejectment ---High Court also dismissed the appeal filed by the tenant---Validity---No jurisdiction existed for the tenant not to deposit arrears and future rent in terms of the order passed by the Rent Controller---Non-compliance of the order being wilful and deliberate was not a technical one---Supreme Court refused to interfere in the concurrent findings of the two Courts below---Leave to appeal was refused by the Supreme Court.

Abdullah Ghanghro and another v. Mst. Tahira Begum and another 1988 SCMR 970 and Noor Muhammad v. Mehdi PLD 1991 SC 711 distinguished.

S. Amjad Ali, Advocate Supreme Court for Petitioners.

Zafar Hadi Shah, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.

Date of hearing: 2nd August, 2000.

2001 SCMR 133

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Iftikhar Muhammad Chaudhry, JJ

GHULAM HAIDER ---Petitioner

versus

MUHAMMAD AYUB --- Respondent

Civil Petition No. 86-Q of 1998, decided on 8th August, 2000.

(On appeal from the judgment, dated 17-4-1998 passed by High Court of Balochistan in Civil Revision No.5 of 1998).

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

----O.VI, R.17---Constitution of Pakistan (1973), Art. 185(3)---Amendment of pleadings ---Seeking amendment in pleadings at appellate stage---Proposed amendment changing complexion of the suit---Suit of the plaintiff was decreed by the Trial Court and during the pendency of appeal the defendant filed application for amendment of the written statement filed during the trial---Appellate Court dismissed the appeal alongwith the application for amendment---Revision also met the same fate---Contention by the defendant was that-amendment of pleadings could be sought at any stage ---Validity-­Application for amendment of pleadings could be entertained at any stage of the proceedings but such amendment could not be allowed to change the complexion of the suit---Amendment sought by the defendant in written statement would have changed the complexion of the plea taken by him in written statement filed earlier during the trial and the plaintiff who had successfully established his case before the Trial Court producing evidence in support of the issues, would have to establish once again his title over the suit property as after the permission of the amendment the case had to be remanded to the Trial Court---Amendment could not be permitted in the pleadings under O.VI, R.17 C.P.C. where the same amounted to cause prejudice to opposite-party---By obtaining a decree from the Trial Court, which had been maintained up to the stage of High Court, a right had accrued in favour of the plaintiff and if the amendment as sought for was granted the same would deprive the plaintiff from the affirmative findings recorded in his favour---Leave to appeal was refused.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 and Mst. Imam Hussain v. Sher Ali Shah and others 1994 SCMR 2293 ref.

Basharatullah, Senior Advocate Supreme Court and Mehta K. N. Kohli, Advocate -on-Record for Petitioners.

Tariq Mehmood, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate- on-Record for Respondent.

Date of hearing: 8th August, 2000.

2001 SCMR 138

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Iftikhar Muhammad Chaudhry, JJ

Mst. SURRAYA BEGUM and 3 others---Petitioners

versus

ASSISTANT COMMISSIONER and others---Respondents

Civil Petitions Nos. 1994-L to 1997-L of 1999, decided on 27th July, 2000.

(On appeal from the judgment, dated 15-9-1999 of the Lahore High Court, Lahore passed in Writ Petitions Nos.4302 to 4305 of 1983).

Punjab Pre-emption Act (I of 1913)----

----S.21---Land Reforms Regulation, 1972 (M.L.R. 115), para.25--­Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit--­Concurrent findings of fact by the Courts below ---Pre-emptors claimed their right of pre-emption on the basis of tenancy---Suit land was agricultural land and the vendee claimed the same to be exempted from pre-emption on the ground that it was purchased for construction of residential house---Revenue Courts decreed the suit in favour of .the pre-emptors and Constitutional petition by the vendee in the High Court was also dismissed---Validity--- Contention by vendee was repelled on the ground that if such was the intention, the same could be expressed by the law-makers by making a provision to that effect in para. 25 of the Land Reforms Regulation, 1972, which dealt with the right of pre-emption of tenant of agricultural land--­Judgments of the High Court and the Courts below did not suffer from any illegality or jurisdictional defect---Leave to appeal was refused.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate- on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 27th July, 2000.

2001 S C M R 140

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and

Iftikhar Muhammad Chaudhry, JJ

Dr. GHULAM SIDDIQUE---Petitioner

versus

NASRULLAH---Respondent

Civil Petition No. 176-Q of 1998, decided on 3rd August, 2000.

(On appeal from the judgment, dated 4-9-1998 of the High Court of Balochistan, Quetta passed in Civil Revision No.301 of 1997).

(a) British Balochistan Rent Control Regulation (II of 1944)---

----Art.7---Ejectment of tenant---Default in payment of monthly rent---Period of default---Scope---Period of default has been divided into two classifications; firstly the period before filing of ejectment application and secondly any period thereafter i.e. after filing of the application---Provisions of Art.7 of British Balochistan Rent Control Regulation, 1944, were exhaustive enough and the same were to be read conjunctively catering for the two separate periods of default in payment of rent.

(b) Interpretation of statutes---

---- Intention of Legislature---Nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express---Case not provided for in a statute was not to be dealt with merely because there seemed to be no good reason why the same had been omitted as the omission appeared to have been unintentional.

(c) British Balochistan Rent Control Regulation (II of 1944)--

----Art. 7---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant---Default in payment of monthly rent---Application of landlord was dismissed by Rent Controller but was allowed by High Court in exercise of revisional jurisdiction---Tenant failed to pay the monthly rent for a period over five years and he was not willing to pay the same---Effect---Conduct of the tenant throughout had been that he had not only failed to pay the rent but was not ready and willing to pay the rent due within the contemplation of Art.7(a) & (b) of British Balochistan Rent Control Regulation, 1944---High Court was justified in setting aside the findings of the Rent Control who had completely ignored the conduct of the tenant manifested on the record of the case as a habitual defaulter in payment of rent in respect of the period not only before the application for eviction but also for the period thereafter during which the tenant had been in possession of the premises---Leave to appeal was refused.

(d) British Balochistan Rent Control Regulation (II of 1944)---

----Art.7(g)---Expression "for the occupation of any person for whose benefit the premises are held" in Art.7(g), British Balochistan Rent Control Regulation, 1944---Bona fide personal need of landlord for his son, daughter or brother---Scope---Such bona fide need is not included in the provisions of Art.7(g) of British Balochistan Rent Control Regulation, 1944, as the phraseology "for the occupation of any person for whose benefit the premises are held" implies only the person for whose .benefit the premises are held by the landlord which may include the principal for which the landlord is holding the power of attorney or a minor whose guardian ad litem the landlord may become---Expression "for the occupation of any person for whose benefit the premises was held" does not include any relative of the kind within the contemplation of the West Pakistan Urban Rent Restriction Ordinance, 1959, or the Cantonments Rent Restriction, Act, 1963.

(e) British Balochistan Rent Control Regulation (II of 1944)---

----Art.7---Civil Procedure Code (V of 1908), S.115---Ejectment proceedings under the provisions of Bnris Balochistan Rent Control Regulation, 1944---Revisional jurisdiction of High Court, exercise Of-7 Validity---Revisional jurisdiction was available to the High Court in peculiar circumstances of the cases emanating from the proceedings under British Balochistan Rent Control Regulation, 1944.

Haji Sheikh Meraj-ud-Din and anther v. Haji Seth Abdul Ghafoor Rishi PLD 1979 Quetta 118; Khudai Rahim and others v. Mst. Noor Jamal and 2 others PLD 1989 Quetta 54 and Syed Din Muhammad v. Mst. Amino Bibi and 7 others PLD 1994 Quetta 42 approved.

M. Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate- on-Record for Petitioner.

Basharatullah, Senior Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Respondent.

Date of hearing: 3rd August, 2000.

2001 S C M R 148

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Iftikhar Muhammad Chaudhry, JJ

Sardar MUHAMMAD KAZIM ZIAUDDIN DURRANI and others---Petitioners

versus

Sardar MUHAMMAD ASIM FAKHURUDDIN DURRANI and others--- Respondents

Civil Petitions Nos.207 and 208-Q of 1999, decided on 10th August, 2000.

(On appeal from the judgment dated 1-3-1999 passed by the High Court of Balochistan, Quetta in Civil Revisions Nos.306 and 326 of 1997).

(a) Words ands Phrases---

----"Formal defect "---Meaning.

Black's Law Dictionary, Vth Edn., p.376 ref.

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

----O. XXIII, R.1(2)(a)---Expression "formal defect" ---Meaning---Suit framed under the provisions of C.P.C. if not arranged in accordance with O.VI, Rr.1, 2, 3, 4, 14, 15 or O.VII, Rr.1 to 7, C.P.C. would be deemed to be suffering from "formal defect"

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

----O. XXIII, R.1---Defect in suit, removal of---Scope---Permission can only be granted to remove a defect, which is apparent or formal and its presence in the suit may fail the same---Where the defect is latent and touches merits of the case, then permission to withdraw the suit on this score cannot be granted.

Muhammad Din v. Atta Muhammad and others PLD 1957 (W.P.) Lah. 971; Ahmad Bakhsh v. Allah Bakhsh and another PLD 1962 (W.P.) Lah. 476; Aqil Hussain v. Muhammad Sadiq and 7 others 1986 CLC 1316 and Ahmad Din and 3 others v. Town Committee, Depalpur 1972 SCMR 203 ref.

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

----O. XXIII, R.1---Withdrawal of suit with permission to file fresh suit on the same cause of action---Failure to claim declaration and possession of the suit property---Not a formal defect---Application under O.XXIII, R.1, C.P.C. was filed by the plaintiffs, Trial Court allowed the same, but was dismissed by the High Court in exercise of its revisional jurisdiction--­Contention by the plaintiff was that the omission of such claim was a "formal defect" covered under the provisions of O.XXIII, R.1, C.P.C.---Validity--­Claim of the plaintiffs stated in the application was that the suit property was gifted to their mother and they omitted to claim the relief of recovery of possession---Such defects were substantial or latent in nature as they touched the merits of the case and could not be considered as formal defect in the plaint to make out a ground for the withdrawal of the suit---Permission to withdraw the suit, therefore, was unwarranted.

PLD 1965 SC 634; 1970 SCMR 233; PLD 1957 Lah. 971; PLD 1961 Dacca 844; PLD 1962 Lah. 476; 1972 SCMR 203 and 1986 CLC 1316 ref.

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

----O.I, Rr.9, 10 & O.XXIII, R.1(2)(a)---Non-joinder of necessary parties--­Formal defect ---Non-joinder of parties was not fatal for a suit and such defect can be removed by adhering to the provisions of O.I, R.10, C.P.C. read with S.151, C.P.C.

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

----O.XXIII, R.1 & S.149---Improper valuation of subject-matter of suit--­Formal defect---Valuation of the subject-matter of the suit both for the purpose of jurisdiction of the Court and payment of court-fee could be corrected by the Court after recording evidence---Where deficient court-fee had been paid on the plaint, the Court could call upon the plaintiff to make the deficiency good in exercise of its jurisdiction conferred upon it by 5.149, C.P.C.---Question of payment of court-fee was a matter between the subject and the State and the same had nothing to do with opponents---Improper valuation of the subject-matter of the suit would not constitute formal defect.

Siddique Khan v. Abdul Shakoor Khan and another PLD 1984 SC 289 ref.

H. Shakil Ahmad, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate-on-Record for Petitioners (in both Civil Petitions).

Mehta K. N. Kohli, Advocate-on-Record for Respondents Nos. l to 5 (in both Civil Petitions).

Basharatullah, Senior Advocate Supreme Court for Respondents Nos.6 to 30 (in both Civil Petitions).

Nemo for Respondents Nos.31 and 32 (in both C.Ps.).

Date of hearing: 10th August, 2000.

2001 S C M R 155

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah

and Hamid Ali Mirza, JJ

REVENUE EMPLOYEES COOPERATIVE HOUSING SOCIETY

LIMITED and 8 others---Appellants

versus

Mst. BACHOO and others---Respondents

Civil Appeals Nos. 782-K and 783-K of 1990, decided on 2nd August, 2000.

(On appeal from the judgment of the Sindh High Court dated 13-12-1988 passed in C.P. No. D-49 of 1985).

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

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court ---Scope--­Disputed question of fact---Leave to appeal was granted by Supreme Court to consider questions whether High Court was justified in resolving disputed questions of fact relating to ownership of immovable agricultural property in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution; whether cancellation of allotment of Government land in favour of the petitioner could be questioned in a Constitutional petition preferred by persons who claimed to have transferred the land in question to other persons and thereby lost title thereof; whether High Court was justified in cancelling the allotment of Government land lawfully effected in favour of the petitioner on the ground of some entries allegedly made in records of rights, the veracity whereof could not even be established; and whether the decision of High Court was based upon correct principles of exercise of jurisdiction under Art. 199 of the Constitution.

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

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court---Disputed question of fact---Decision as to question of title of land---Validity---Title in respect of land where the documents were alleged to be forged and fabricated, being a question of fact, could not be decided by High Court in its Constitutional jurisdiction.

Tanbir Ahmed Siddiky v. Province of East Pakistan PLD 1968 SC 185; Saghir Ali v. Mehar Din 1968 SCMR 145; Benedict F. D'Souza v. Karachi Building Control Authority 1989 SCMR 918; Ehsanul Haq Kiani v. Allied Bank Limited, Karachi 1984 SCMR 963 and Mian Muhammad v. Municipal Committee 1983 SCMR 732 ref.

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

---Arts. 199 & 185(3)---Constitutional jurisdiction of High Court---Disputed question of fact---Decision as to question of title of land ---Validity--­Disputed question of fact as to title was based on the document which were said to be forged and fabricated and the same required evidence to arrive at a correct conclusion---High Court could not have decided the question in exercise of Constitutional jurisdiction---Judgment of High Court was set aside by Supreme Court.

Miss Wajahat Niaz, Advocate-on-Record for Appellants (in C.A. No. 782-K of 1990).

Muneer Rehman. Additional Advocate-General, Sindh for Appellants (in C.A. No.783-K of 1990).

Abdul Rahim Kazi, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondents Nos. 2, 3, 4, 6 and 7 (in both Appeals).

Imran Ahmad, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Respondents Nos.9 and 12 (in both Appeals).

A.A. Siddiqui, Advocate-on-Record for Respondents Nos.10, 11 and 14 (in C. A. No. 782-K of 1990).

Date of hearing: 2nd August, 2000.

2001 SCMR 159

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

Chaudhary GHULAM GHAUS through Legal Heirs---Petitioners

versus

SAIFULLAH and another---Respondents

Civil Petition No.348-K of 2000, decided on 26th July, 2000.

(On appeal from the judgment dated 17-5-2000 passed by High Court of Sindh Bench at Sukkur in F.R.A. No.79 of 1987).

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

----S. 21---Appeal, restoration of---Disappearance of attorney of Pardahnashin unmarried lady---Failure of the counsel to contract the lady--- Appeal of Pardahnashin lady was being pursued by her attorney who disappeared during the pendency of appeal and his whereabouts were not known---High Court dismissed the appeal on 10-10-1990 but restored the same on 12-6-1998 on the basis of affidavits filed by the lady and her counsel in that respect---Main reason for the restoration of the appeal as shown in the High Court judgment was that the person who used to persue the matter on behalf of the Pardahnashin and unmarried lady was missing and his whereabouts were not known as such the lady having no other male member in her family was quite unaware of the proceedings and for the same reason she could not contact her counsel- --Validity---Petitioner gave valid reasons for restoration of appeal in circumstances.

(b) Administration of justice-----

---- Justice demands that the valuable rights of the parties need to be agitated upon merits rather than dismissing the matter on technical grounds.

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

----S. 15---Ejectment proceedings---Review---Rent Controller, powers of--­Scope---Right of appeal or review was substantive in nature and the same must be conferred by the statute---In the absence of any provision for the review in Sindh Rented Premises Ordinance, 1979, power of review cannot be exercised in such proceedings.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

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

----Ss. 15 & 18---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Default in payment of monthly rent--­Relationship of landlord and tenant was accepted by the parties and notice under S. 18, Sindh Rented Premises Ordinance, 1979 was received by the tenants---Rent Controller dismissed the ejectment application while the High Court allowed the appeal---Validity---Where the tenants had not paid rent to any of the owners, they were defaulters and were liable to be ejected--­Sufficient evidence was placed on record by the landlord to prove their personal bona fide need---No illegality or infirmity was pointed out in the judgment of High Court and same did not call for any interference by Supreme Court---Leave to appeal was refused.

Haji Suleman v. Haji Amin Shakoor Tumbi and another 1982 CLC 1453 ref.

Zafar Nadi Shah, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th July, 2000.

2001 SCMR 163

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MEHBOOB SULTAN and 2 others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.294 and 295 of 1997, 406 and 407 of 1999, decided on 1st June, 2000.

(On appeal from the judgment, dated 12-6-1997 passed by Lahore High Court, Lahore in M.R. No.46 of 1992 and Criminal Appeals Nos.16 and 18 of 1991).

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

----S. 302/307/149---Constitution of Pakistan (1973), Art.l85(3)--­Sentence---Rule of consistency---Applicability---Leave to appeal was granted to consider whether in the facts and circumstances of the case, the evidence produced by the prosecution was such on which reliance could be placed for the conviction and that grant of lesser punishment to the co-accused persons was justified.

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

----S.302/307/149---Appraisal of evidence---Interested witnesses---Four persons were murdered by the accused---Trial Court awarded death sentence to four accused while other five co-accused were awarded imprisonment for life---High Court maintaining such conviction---Contention raised by the accused before High Court was that the wives of the complainant's brother and other prosecution witness were real sisters thus, the prosecution witnesses were relatives and were "interested witnesses" ---Validity---Defence failed to prove such relationship from documents viz. Nikahnama and "B" Form from Registration Office---Report of Ballistic Expert, that the empties recovered from scene of offence were fired from the weapon recovered from the accused, had corroborated the ocular version---Motive also stood established from the evidence on record ---Factum of incident was corroborated by the statement of defence witnesses---Sufficient material had been placed on record to prove the case against the accused as such the sentence of death was maintained by Supreme Court.

Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251; Israr v. The State 1994 SCMR 1082; Tariq Khan v. The State 1997 SCMR 254 and Sheral alias Sher Muhammad v. The State 1999 SCMR 697 distinguished.

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

----S.302/307/149---Sentence---Rule of consistency---Applicability---Old age of the accused--- Effect---One of the co-accused who was aged about 70 years was awarded life imprisonment by the Trial Court by taking lenient view due to his old age---Case of the accused was at par with that of co-accused--­Accused was aged about 75 years and was entitled to the same benefit as per rule of consistency---Sentence of accused was reduced from death to imprisonment for life accordingly.

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

----S.302/307/149---Sentence---Age of accused---Influence of the father of the accused on the accused---Scope---Accused was 16 years of age and being minor might have acted under the influence of his father---Sentence was commuted from death to imprisonment for life.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Appeal No.294 of 1997).

Ch. Ghulam Ahmad, Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate-on-Record for the State (in Appeal No.294 of 1997).

Ch. Afrasiab Khan, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate-on-Record for Appellants (in Appeal No.295 of 1997).

Nemo for the State (in Appeal No.295 of 1997).

Kh. Sultan Ahmad, Senior Advocate Supreme Court for Appellants (in both Criminal Appeals).

Nemo for Respondents ((in both Criminal Appeals).

Date of hearing: 1st June, 2000.

2001 S C M R 171

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

SECRETARY, GOVERNMENT OF PUNJAB, EDUCATION

DEPARTMENT, LAHORE---Appellant

versus

Allama MUHAMMAD ABDULLAH---Respondent

Civil Appeal No.423 of 1993, decided on 27th March, 1998.

(On appeal from the judgment, dated 30-6-1992 of the Punjab Service Tribunal, Lahore passed in Appeal No.50-A of 1992).

(a) West Pakistan Municipal Committees (Grades of Pay) Rules, 1964---

----R.31---Constitution of Pakistan (1973), Art. 212(3)---Grade of pay--­Leave to appeal was granted to examine the issue that while holding that the civil servant was entitled to the grade and post of Headmaster, the Service Tribunal did not advert to the question as to whether the civil servant was possessed of equivalent qualifications prescribed for the post of Headmaster of the educational institution maintained by the Government.

(b) West Pakistan Municipal Committees (Grades of Pay) Rules, 1964---

----R.31---Punjab Senior Teaching Post (National Pay Scale) Rules, 1974--­Service Tribunals Act (LXX of 1973), S.4---Fixation of pay --­Provincialization of school---Granting of same pay scale which was applicable to the employees of Government Schools---Civil servant was Headmaster with a qualification of "Allama" ---Such qualification was equivalent to that of degree of Bachelor of Arts---Contention raised by Government was that the Administrator, Municipal Committee was not competent to promote the civil servant as Headmaster with the result that the civil servant had no right to the pay for the post of Headmaster ---Validity--­All the events succeeding the promotion of the civil servant by the Administrator stood merged in the new discipline which came about on account of Provincialization of the year 1975---Civil servant did opt for National Pay Scale introduced by Punjab Senior Teaching Post (National Pay Scale) Rules, 1974, which were made applicable with effect from 1-3-1972 when the management and control of the schools of Municipal Committees and Municipal Corporations were transferred to Government of Punjab in Education Department with effect from 1-7-1975---Government did not even so much as raised any objection whatsoever to the then existing position--­Civil servant had rightly relied upon R.31 of West Pakistan Municipal Committees (Grade of Pay) Rules, 1964---Resolution of the dispute by the Service Tribunal in favour of the civil servant was not suffering from any taint.

Altaf Ilahi Sheikh, Additional Advocate-General, Punjab instructed by Rao Muhammad Yousaf Khan, Advocate-on-Record (absent) for Appellant.

Muhammad Ismail Qureshi, Senior Advocate Supreme Court instructed by Anwar H. Mir, Advocate-on-Record for Respondent.

Dates of hearing: 26th and 27th March, 1998

2001 SCMR 177

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Javed Iqbal and Abdul Hameed Dogar, JJ

RIAZ HUSSAIN---Appellant

versus

THE STATE---Respondent

(On appeal from the judgment of the Lahore High Court, Lahore, dated 10-6-1997 passed in Criminal Appeal No.522 of 1992, M.R. No.215 of 1992 and Criminal Revision No.622 of 1992).

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

----S.302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to consider; whether the prosecution evidence had wrongly been relied upon against the accused, because all the witnesses were interested; whether the ocular evidence was highly inimical and interested; whether the Courts below did not properly appreciate the defence version; and whether in the absence of any material corroboration the prosecution evidence could not be accepted against the accused when it had been disbelieved against all other accused.

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

----S.302---Appraisal of evidence---Evidence, corroboration of--­Corroboration of evidence must proceed from a source independent of and extraneous to the person whose evidence is to be corroborated--­ Corroboration may consist of direct or circumstantial evidence and same need not amount to the confirmation of the whole story of the witness so long it corroborates such evidence in some respect material to issue or charge under consideration---Extent and degree of corroboration rests on judicial discretion of the Court and varies with facts and circumstances of each case---Corroboration evidence should at least tend to show that the evidence of the witness when he had named the accused as taking part in the crime is true---No rule of law that every ancillary fact has to be supported by other independent evidence---Only for the safe dispensation of justice that corroboration is necessary in certain given circumstances but the scope of this principle does not extend to the case of ancillary facts testified by the witness.

PLD 1977 SC 413; PLD 1956 SC 1986 and 1972 PCr.LJ 107 ref.

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

----S.302---Qanun-e-Shahadat (10 of 1984), Art.18---Evidence, admission of--Question of fact---Question as to whether a particular piece of evidence is sufficiently reliable to be used, or even if such evidence appears unreliable whether it ought not to be accepted in view of some other independent and reliable corroborative evidence is a question of fact.

Vadivleu Thevar v. State of Madras, AIR 1957 SC 614 and Devi Prasad v. State AIR 1967 All. 64 ref.

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

----S.302---Appreciation of evidence---Witness---Interested witness, statement of ---Corroboration of such statement---Principles and scope---No inflexible rule that statement of an interested witness can never lie accepted without corroboration---To be satisfied that no innocent persons are being implicated alongwith the guilty, the Court, in case of an ordinary interested witness, has to look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction and this is what is meant by saying that the statement of an interested witness ordinarily needs corroboration.

Devi Prasad v. State AIR 1967 All. 64; Niaz v. The State PLD 1960 SC (Pak.) 387; PLD 1962 SC 269 arid PLD 1971 SC 541 ref.

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

----S.302---Appraisal of evidence---Evidence of related witness ---Validity--­Evidence of related witness or an interested witness must be corroborated by ignoring the surrounding circumstances by means of some independent evidence and statement of such witness can be relied upon if found worthy of credence and confidence inpsiring.

PLD 1962 SC 269 ref.

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

----S. 302---Appraisal of evidence---Maxim "falsus in uno in omnibus" ---Meaning and scope---Maxim means false in all---Maxim is not applicable in prevalent; of justice and moreso there is no rule having universal some accused persons have not been found guilty the ipso facto, stand acquitted because the Court has to sift from chaff.

1969 SCMR 1327 and 1973 SCMR 162 ref.

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

-----S.302---Appraisal of evidence ---Abscondence of accused---Effect---Such is a corroborative circumstance of the charge against accused---Conduct of accused soon after the incident plays an important part in determining his guilt and the same is a corroborative piece of evidence---Conduct of a person absconding after the commission of offence is an evidence to show that the person is concerned in the offence ---Factum of abscondence cannot altogether be ignored and corroborative value of the abscondence of accused is to be judged in the light of facts and circumstances of each case.

PLD 1971 Pesh.32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ 217; Manzoor Elahi v. State PLD 1965 Lah. 656; Permeshwar Din v. E. AIR 1941 Oudh.517; Crown v. Fateh Muhammad 35 PLR 740; Chandika Prasad v. E; 126 IC 684: AIR 1930 Oudh. 324: 31 Cr.LJ 1081; Gangaram Hari Parit v. E. 62 IC 545: 22 Cr. LJ 529; Q.E. v. Sami and others 13 Mad. 426; Q.E. v. Gobardhan 9 All. 528; Rakhal Nikart v. Q.E.2 C W N 81; Mahla Singh v. E. 130 IC 410: 1931 Lah. 38:32 Cr.LJ 522; Q v. Sorab Roy 5 W R Cr. 28; Khan v. State AIR 1955 Cal. 146 and PLD Y1978 SC 103 ref.

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

----S.302---Appraisal of evidence---Solitary statement of prosecution witness--- Conviction based upon such statement---Validity--'-Prosecution had proved the motive which was an old enmity and a few murders had also been committed---Such aspect of the matter could also be considered as supporting factors to the version of the solitary prosecution witness ---Factum of abscondence of accused and medical evidence had lent full corroboration to the eye-witness account of the witness---Quality of evidence and not quantity is to be considered---Conviction could be based on the evidence of a solitary witness---No mitigating circumstances being available, benefit whereof could be given to the accused, Supreme Court declined interference.

PLD 1980 SC 225; 1971 SCMR 659; 1969 SCMR 76; 1971 SCMR 273; 1995 SCMR 1979; PLl 1979 SC 142 and 1975 Cr.LJ 218 ref.

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

----S.302---Appraisal of evidence---Motive---Effect---Motive is a double­edged weapon but it has its own importance which cannot be overlooked--­Motive cannot be sine qua non for bringing offence home to accused yet relevant and significant enough to determine the fact of intention and can be considered in view of peculiar circumstances of the case.

PLD 1976. SC 557; PLD 1962 SC 259 and PLD 1973 SC 83 ref.

Malik Saeed Hassan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Appellant.

Abdul Waheed Siddiqui, Advocate Supreme Court for the State.

Date of hearing: 8th May, 2000.

2001 S C M R 190

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Mian Muhammad Ajmal and Deedar Hussain Shah, JJ

NAZIR AHMED and another---Appellants

versus

GILLETTE PAKISTAN LIMITED and others---Respondents

Civil Appeals Nos. 1501 and 1502 of 1997, decided on 31st May, 2000.

(On appeal from the order of the High Court of Balochistan, dated 20-6-1995 passed in Civil Petitions Nos. 131 of 1995 and 13 of 1995).

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

----S.25-A---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider whether the order of High Court, that the petitioners were not the employees of employer company but were personal drivers of the officers of the company and their applications under S.25-A, Industrial Relations Ordinance, 1969 were not maintainable, was sustainable on the evidence on record.

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

----S.25-A---Grievance petition---Termination of service---Failure to regularize and confirm the services of employees---Employer company terminated the services of employees without notice on the ground that they were not the employees of the company---Labour Court accepted the grievance petition acid reinstated the employees, the judgment was reversed by the Labour Appellate Tribunal---High Court dismissed the Constitutional petition of the employees against the order of Appellate Tribunal in limine and did not consider and discuss evidence produced by the parties—­Validity ---Appointment letters and admissions of witnesses established that -the employees were in employment of the company and the services were terminated without assigning any reason or issuing any formal written order, which resulted in displacement of the employees---Order of the High Court as well as the judgment of the Labour Appellate Tribunal were set aside and that of Labour Court was upheld by Supreme Court.

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

----Art.187---Jurisdiction of Supreme Court---Scope---Supreme Court being at the apex, is competent under Art. 187 of the Constitution to pass any order, decree and issue directions for the advancement of complete/substantial justice---Mere technicalities cannot restrain the Supreme Court in rendering complete and substantial justice as envisaged under Art. 187 of the Constitution.

Mehta K.N Kohli, Advocate-on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court and M.A. Zaidi, Advocate- on-Record for Respondent No. 1.

Date of hearing: 31st May, 2000.

2001 S C M R 195

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Qazi Muhammad Farooq

and Abdul Hameed Dogar, JJ

MEHRBAN KHAN and another‑‑‑Appellants

versus

JAVAID KHAN and 2 others‑‑‑Respondents

Criminal Appeals Nos.490 and 491 of 1995, decided on 5th June, 2000.

(On appeal from the judgment/order, dated 24‑7‑1995, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No. 125 of 1991 and Murder Reference No. 510 of 1991).

(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 principles enunciated by superior Courts for safe administration of justice in criminal cases were kept in view and to examine the correctness of reasons for the acquittal of the accused.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302/304(1)/34‑‑‑Appraisal of evidence‑‑‑Double murder‑‑‑Grave and sudden provocation, plea of‑‑‑Version given by both the eye‑witnesses produced by the prosecution was not accepted by the High Court and the motive part of the story was disbelieved‑‑‑Recoveries were not considered to be of any significance‑‑‑Plea of grave and sudden provocation did not appear to be an afterthought as the same was taken at the earliest before the Investigating Officer‑‑‑High Court accepted the plea and converted the death sentence, awarded by the Trial Court, into imprisonment for life ‑‑‑Validity‑‑­Judgment of the High Court was well‑reasoned and the same did not call for interference‑‑‑Appeal was ,dismissed by Supreme Court.

Mst. Razia Begum v. Jahangir and others PLD 1982 SC 302 ref.

Ch. Ghulam Ahmad, Advocate Supreme Court for Appellant (in Criminal Appeal No.490 of 1995).

Muhammad Munir Paracha, Advocate Supreme Court for Respondents Nos. 1 and 2 (in Criminal Appeal No. 490 of 1995).

Dil Muhammad Tarar, Advocate Supreme Court for Respondent No.3

Dr. M. Amin Ahmad, Advocate Supreme Court for Appellant (In Criminal Appeal No.491 of 1995).

Dil Muhammad Tarar, Advocate Supreme Court for Respondent (in Criminal Appeal No. 491 of 1995).

Date of hearing: 5th June, 2000.

2001 S C M R 199

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

MUHAMMAD MANSHA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No. 194 of 1998, decided on 29th May, 2000.

(On appeal from the judgment, dated 7‑9‑1998 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 1093 of 1992 and Murder Reference No. 198 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Reappraisal of evidence‑‑‑Hostile witness may be truthful one, while a disinterested witness may be bribed or pressurised to make a false statement‑‑‑Court should look to the quality of evidence whether probable or consistent.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Reappraisal of evidence‑‑‑Triple murder‑‑‑Solitary statement of injured prosecution witness, basis of conviction‑‑‑Credibility of the solitary witness‑‑‑Incident, place of occurrence and presence of the injured prosecution witness remained unchallenged ‑‑‑Occurrence was admitted but the mode of commission of offence was controverted ‑‑‑Injured prosecution witness had given a detailed account of the incident by attributing the entire responsibility to the accused in respect of fire‑armed injuries sustained by her and three other persons were killed‑‑‑Evidence of the witness was duly supported by medical evidence, positive report of Forensic Science Laboratory, Report of Serologist, recovery of empty cartridges from the place of occurrence, recovery of gun at the pointation of the accused and motive‑‑‑Validity‑‑‑Injured witness was worthy of credence, independent, natural and trustworthy witness and there was no lawful justifiable cause to discard her testimony‑‑‑Evidence of the injured prosecution witness was rightly considered by the Trial Court and the High Court in circumstances.

1980 PCr.LJ 898; PLD 1980 SC 225; 1971 SCMR 659; 1969 SCMR 76; 1998 PCr.LJ 1441; 1971 SCMR 273; 1971 SCMR 530; 1995 SCMR 1979; PLJ 1980 SC 492; 1993 SCMR 2405; NLR 1985 Cr. 501; AIR 1936 Lah. 778; PLD 1957 SC (Ind.) 525 and 1972 SCMR 620 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 17(2)(b)‑‑‑Conviction based upon evidence of single witness‑‑‑Competence and number of witnesses required for conviction‑‑‑Scope‑‑‑If testimony of the single witness is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof‑‑‑Even as the guilt of an accused person may be proved by the testimony of a single witness, innocence of accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution‑‑‑Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact‑‑‑Particular number of witnesses is not required for the proof of any fact and the same can be produced by a single witness under the provisions of Art. 17(2)(b) of Qanune‑e‑Shahadat 1984.

Principles and Digest of the law of Evidence by M. Monir, p. 1458 and on the Law of Evidence by C.D. Field, p. 4746 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.17(2)(b)‑‑‑Fact‑‑‑Proof‑‑‑Number of witnesses required‑‑‑Principle "unus nullus" (one is equal to none)‑‑‑Applicability‑‑‑Such principle is no more enforced hence cannot be taken into consideration‑‑‑In order that the sole testimony of a witness is made the foundation and the basis for finding a person guilty of the charge, the evidence must be clear, cogent and consistent and should be of an unimpeachable character:

(1982) 53 Cut. LT 368 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Reappraisal of evidence‑‑‑Interested witness is one who has a motive to falsely implicate an accused or has some previous enmity to involve a person mala fidely‑‑‑No rule of law that statement of an interested witness cannot be taken into consideration without corroboration and uncorroborated version can be relied in context with other circumstances of a particular case.

PLD 1962 SC 269; PLD 1969 SC 488; PLD 1960 SC 387 and 1985 SCMR 203 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Reappraisal of evidence‑‑‑Solitary evidence of injured prosecution witness‑‑‑Validity‑‑‑Fact of witness being injured and such injuries not self‑suffered is not by itself indicative of witness having told the truth‑‑‑Statement of an injured witness should be and up to what extent can be relied upon depends upon the circumstances of each case‑‑‑Injury to the witness, however, lends corroboration to factum of presence of the witness at the place of occurrence and if some corroboratory and confirmatory material is available such statement cannot be discarded.

1981 SCMR 795 and Khalil Ahmad v. The State 1976 SCMR 161 ref.

(g) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Reappraisal of evidence‑‑‑Interested witness‑‑‑Such witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused‑‑‑Friendship or relationship with the deceased is not sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.

PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274; Shehruddin v. Allah Rakhia 1989 SCMR 1461; 1998 SCMR 1814 and Niaz v. State PLD 1960 SC 387 ref.

Malik. Muhammad Jehanzeb Tamman, Advocate Supreme Court for Petitioner.

Ch. Arshad Ali, Advocate. Supreme Court for the State. .

Date of hearing: 29th May, 2000.

2001 S C M R 209

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and

Ch. Muhammad Arif, J

GOVERNMENT OF THE PUNJAB through Collector, Faisalabad and another‑‑‑Appellants

versus

HUDABIA TEXTILES MILLS, FAISALABAD through

Chairman and 4 others ‑‑‑Respondents

Civil Appeal No.578 of 1997 decided on 26th March, 1998.

(On appeal from the judgment, dated 13‑6‑1995, passed by Lahore High Court, Lahore, in Writ Petition No.3323 of 1981).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑‑

‑‑‑‑Ss.7 & 24‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 163 & 164‑‑‑Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.25(2)(s)‑‑‑Land Acquisition Act (I of 1894)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to consider the question as to whether Colony Assistant, who passed resumption order, was not empowered at the relevant time under S.24 of Colonization of Government Lands (Punjab) Act, 1912, to resume the land in dispute and the order of resumption was without jurisdiction, whether there was anything in the Board of Revenue West Pakistan's Notification No.140‑70/282‑CV Revenue, dated 23‑1‑1970 to suggest, in any manner whatsoever, that it had the effect of divesting the Colony Assistant of the powers under S.24 of Colonization of Government Lands (Punjab) Act, 1912, given to him by Notification No.6463/4271‑CVI, dated 21‑10‑1963 issued by the Government of West Pakistan in pursuance of the powers conferred by S.3 of the said Act; whether in presence of adequate statutory remedies available by way of review, appeal and revision provided by Ss.163 & 164 of West Pakistan Lands Revenue Act, 1967, read with S.7 of Colonization of Government Lands (Punjab) Act, 1912 High Court was right in exercising its Constitutional jurisdiction under Art.199 of the Constitution; whether the Governor was within his lawful authority to order the delivery of the possession of land in dispute, being evacuee before its general exchange to the company and whether in consequence of general exchange of evacuee land including the land in dispute, with Crown Land approved by the Government of Pakistan under S.25(2)(s) of Pakistan (Administration of Evacuee Property) Act, 1957, and upheld by High Court in its judgment passed in Constitutional petition, the land in dispute assumed the character of State land and could Government's interest in the land be legally acquired under the Land Acquisition Act, 1894.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Illegal order on the face of record‑‑‑Failure to avail right of statutory appeal‑‑‑Effect‑‑‑Where there was lack of jurisdiction or where order of the Authority suffered from illegality on the face of record, a writ might be issued even though the right of statutory appeal had not been availed.

Nagina Silk Mills Ltd. v. I.T.O. and another PLD 1963 SC 322; Premier Cloth Mills v. Sales Tax Officer 1972 SCMR 257 and Salahuddin and 2 others v. Fronties Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.24 & 30‑‑‑Resumption of land by Colony Assistants‑‑‑Powers of Collector, exercise of‑‑‑Approval of exchange of evacuee land including the State land owned by the Provincial Government‑‑‑Estimated amount was deposited but entries in the column of owners by Revenue Authorities were not made in the names of the respondents‑‑‑Colony Assistant while exercising the powers of Collector directed the resumption of the land in dispute‑‑‑High Court in exercise of Constitutional jurisdiction had found that resumption order of the Colony Assistant was mala fide and incapable of being sustained‑‑‑Resurrection of the matter at the level of the Colony Assistant after a period of more than 29 years of the delivery of possession to the respondent was also resolved by High Court‑‑?High Court had not committed any illegality while holding that Colony Assistant was not possessed of the requisite jurisdiction to make the resumption order‑‑‑Judgment passed by High Court thus did not suffer from any jurisdictional error or defect to justify interference by Supreme Court.

Ahbab Cooperative Society v. Commissioner PLD 1978 Lah. 273; Faiz Ali v. Rafia Jan PLD 1956 Lah. 94; Rehmatullah v. Muhammad Ismail PLD 1958 (W.P.) Rev. 77; Mazhar Hussain v. Noor Ahmad PLD 1958 (W.P.) Rev. 17; Ilam Din v. Muhammad Din PLD 1964 SC 842; Zafar Ullah Khan v. Abdul Rehman 1984 MLD 1574; Alnoor Textile Mills Ltd. v. Collector of Customs 1990 ALD 356; Province of West Pakistan v. Muhammad Yasin PLD 1964 SC 430 and Muhammad Nawaz v. Federation of Pakistan and others 1992 SCMR 1420 ref.

(d) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Arts. 184 & 199‑‑‑Striking down order of a public functionary??Procedure ‑‑‑Examination of entire field of jurisdiction of a public functionary should be trade before striking down his order.

Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar PLD 1966 SC 725 and Lahore Improvement Trust, Lahore through Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 rel.

K.M.A. Samdani, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record (absent) for Appellants.

A. Karim Malik, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondent No.2.

Syed Jamshed Ali, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Respondent No.3.

S.M. Masud, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑ on‑Record for the Intervenors.

Date of hearing: 26th March, 1998.

2001 SCMR 221

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan

and Ch. Muhammad Arif, JJ

MUHAMMAD SHARIF alias SHARIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.6‑L of 1998, in Criminal Petition No. 199‑L of 1997 and Criminal Appeal No.240 of 1997, decided on 13th February, 1998.

Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XXXIII, R.6‑‑‑Inherent power‑‑‑Correction of name of petitioner in the order of the Court‑‑‑Name of the petitioner was wrongly described in the order of the Court‑‑‑Supreme Court, after verifying the same from the record, directed for the correction of the name.

Muhammad Sharif Chohan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Khawaja Muhammad Sharif, Advocate‑General, Punjab for the State.

Date of hearing: 13th February, 1998.

2001 S C M R 223

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUHAMMAD ASLAM and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 133 to 136 of 1996, heard on 19th May, 2000.

(On appeal from the judgment, dated 6‑4‑1995 of the High Court of Sindh, Karachi, in Criminal Appeals Nos.22, 23 and 40 of 1992, Criminal Revision Application No.27 of 1992 and Confirmation Case No.6 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑‑S.302‑‑‑Sentence‑‑‑Absence of motive‑‑‑In the presence of confidence inspiring evidence with regard to the commission of crime by the accused, absence of motive would not come in the way of the prosecution and would not deter the Courts from passing the normal sentence of death under S.302, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302/34 & 307/34‑‑‑Appraisal of evidence‑‑‑Failure on the part of prosecution to show motive was not fatal to its case‑‑‑Prosecution evidence being strong, reliable and confidence‑inspiring, could not be challenged‑‑­Non‑assignment of motive in the case would not be a mitigating circumstance for reduction of the sentence of accused from death to imprisonment for life‑‑‑Accused had mercilessly and cruelly inflicted stab wounds with a dagger on the vital parts of the body of the unarmed and helpless deceased who had been caught hold of by two companions of accused and accused, thus, caused his death‑‑‑No leniency on award of normal sentence of death as provided by 5.302, P.P.C. could, in circumstances, be shown to the accused‑‑‑Courts below had concurred in awarding death sentence to accused doing complete justice strictly in accordance with law which did not warrant any interference by Supreme Court‑‑‑Appeal of accused was dismissed accordingly.

Talib v. Crown PLD 1959 FC 42: Muhammad Sharif v. State 1991 SCMR 1622; Abdul Sattar v. Muhammad Anwar PLD 1974 SC 266; Mushtaq Ahmed v. Siddiqullah PLD 1975 SC 160; Saeed Gul v. The State PLD 1992 Pesh. 40; Muhammad Jehangir v. State 1999 SCMR 2422; Mardan Ali v. Gulistan 1980 SCMR 889; Piran Ditta v. The State 1993 SCMR 1934; Mst. Bismillah v. Muhammad Sabbar 1998 SCMR 1862 and Pervaiz v. State 1998 SCMR 1976 ref.

Labha v. State 1984 SCMR 1514; Ali Hussain v. Mukhtar 1983 SCMR 806; Liaqat Hussain v. Abdul Majid 1986 SCMR 1906 and Asghar Ali v. State 1987 SCMR 1344 distinguished.

(c) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302/34‑‑‑Sentence‑‑‑Expectancy of life‑‑‑Principle of expectancy of life per se is not a valid ground for awarding lesser sentence in cases involving capital punishment.

Raheem Bakhsh v. Abdul Subhan 1999 SCMR 1190 and Maqbool Ahmed v. The State 1987 SCMR 1059 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Sentence, enhancement of‑‑‑Accusations made against accused were quite independent and distinguishable from those against the principal accused who had caused fatal injuries to the deceased‑‑‑Lesser sentence of imprisonment for life awarded to accused by the Courts below being justified in the circumstances did not call for interference by Supreme Court‑‑‑Appeal for enhancement of sentence of accused to death was consequently dismissed.

Waris Ali v. State 1999 SCMR 1469 ref.

K.M.A. Samdani, Senior Advocate Supreme Court for Appellants (in Cr.As. Nos. 133 and 134 of 1996).

Ch. Iftikhar Ahmed, Advocate Supreme Court for Appellant (in Cr.A. No. 135 of 1996).

Javed Aziz Sindhu, Advocate Supreme Court for Appellant (in Cr.A. No. 136 of 1996).

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 19th May, 2000.

2001 S C M R 232

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Javed Iqbal

and Abdul Hameed Dogar, JJ

DIL BAGH HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 88 of 1996 out of Criminal Petition No.430‑L of 1995, decided on 10th May, 2000.

(On appeal from the judgment/order of the Lahore High Court, Rawalapindi Bench, Rawalpindi, dated 26‑9‑1995 passed in Criminal Appeal No.5 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302, 306(c) & 308‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Leave to appeal was granted by Supreme Court to the accused to consider whether the case fell under S.306(c), P.P.C. and for that reason the accused could not be convicted of the offence of Qatl‑i‑Amd liable to Qisas, and secondly as to whether the case fell under S.308, P.P.C., inasmuch as, the widow of the deceased, who was also the daughter of the accused, was one of the Walis of the deceased and a direct descendant of the accused and in such circumstances could death sentence be awarded to the accused when he was not liable to Qisas.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss.302, 306(c), 308(2) & 309(2)‑‑‑Sentence, propriety of‑‑‑Accused had murdered his son‑in‑law who had a minor son out of the wedlock‑‑‑Widow and her son were Walis of the deceased and the widow being the daughter of the accused was his direct descendant‑‑‑Offence committed by the accused, therefore, according to S.306(c), P.P.C. was not liable to Qisas i.e. 'death, but he was liable to pay Diyat and could also be awarded imprisonment up to 14 years as Tazir under S.308(2), P.P.C.‑‑‑Widow had waived her right of Qisas without any compensation, but the minor son of the deceased whose right of Qisas could not be waived, was entitled to his share of Diyat‑‑­Death sentence awarded to accused under S.302, P.P.C. was consequently altered to the payment of Diyat to the minor son of the deceased and he was also sentenced to imprisonment for fourteen years as Tazir in circumstances.

Khalil‑uz‑Zaman v. Supreme Appellate Court PLD 1994 SC 85 and Muhammad Iqbal v. The State 1999 SCMR 403 ref.

Raja M. Anwar, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate‑on‑Record for Appellants.

Rao M. Yousuf Khan, Advocate‑on‑Record (absent) for the State.

Date of hearing: 10th May, 2000.

2001 S C M R 237

[Supreme Court of Pakistan]

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

GHULAM QADIR KHAN‑‑‑Petitioner

versus

DISTRICT AND SESSIONS JUDGE, VEHARI and others‑‑‑Respondents

Civil Petition No. 1700‑L of 1998, decided on 5th November, 1998.

(On appeal from the judgment, dated 1‑10‑1998 passed by the Lahore High Court, Multan Bench, Multan, in Writ Petition No.6963 of 1998).

(a) Representation of the People Act (LXXXV of 1976)‑‑‑‑

‑‑‑‑S.39‑‑‑Recounting of ballot papers‑‑‑Scope‑‑‑Recounting of ballot papers can only be ordered under S.39 of Representation of the People Act, 1976 if the conditions laid down therein are fulfilled and Returning Officer is satisfied that the request is reasonable.

Kunwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 rel.

(b) Punjab Local Councils (Elections) Rules, 1979‑‑‑

‑‑‑‑R.40(4)‑‑‑Explanation‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Ballot papers, counting of‑‑‑Stamp appearing in two columns‑‑‑Court on examination of the disputed ballot paper found that the full impression of the stamp appeared on the ballot paper, the major portion would have fallen in the column of the symbol allotted to the respondent‑‑‑Validity‑‑‑Petitioner did not dispute the finding of High Court and rightly so as the finding of the Election, Tribunal as well as of the High Court' was supported by Explanation to R.40(4) of. Punjab Local Councils (Elections) Rules, 1979‑‑­Leave to anneal was refused by Supreme Court.

Dr. M. Mohyuddin Qazi, Senior Advocate Supreme Court and Tanveer Ahmad, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 5th November, 1998.

2001 SCMR 241

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Hamid Ali Mirza, JJ

MUNIR AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent , Jail Petition No.45 of 1999, decided on 31st May, 2000.

(On appeal from the judgment, dated 24‑11‑1998 of the Lahore High Court, Lahore, passed in Criminal Appeal No.33 of 1994 and Murder Reference No.39 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑‑S.302(b)‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 174‑‑‑First Information Report‑‑‑Contents‑‑‑Inquest report‑‑‑Mention of crime empties in F.I.R. or inquest report not required‑‑‑Law does not require that the crime empties found on the spot must be mentioned in the F.I.R. or inquest report.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)‑‑‑Intrinsic value of the evidence of eye‑witnesses was of the nature that there was no legal hurdle in accepting the same‑‑‑Truthfulness and independent character of ocular evidence had, by itself, qualified it for a valid foundation for conviction even without corroboration by any other evidence‑‑‑Disinterested, unbiased and independent ocular testimony, recovery of pistol and "Chhurri" at the instance of accused and the matching of the crime empties with the pistol supported by motive and medical evidence were sufficient for safe conviction of accused‑‑­Sentence of death imposed on accused also did not suffer from any legal flaw.

Syed Zia Hussain Kazmi, Advocate Supreme Court for Petitioner.

Nemo for the State.

Dil Muhammad Tarar, Advocate Supreme Court for the Complainant.

Date of hearing: 31st May, 2000.

2001 S C M R 244

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Iftikhar Muhammad Chaudhry

and Rana Bhagwan Das, JJ

SAKHAWAT ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 274 of 1998, decided on 31st May, 2000.

(On appeal from the judgment, dated 5‑3‑1997 passed by Lahore High Court, Lahore, in Criminal Appeal No.669 of. 1992 and Murder Reference No.247 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to re‑examine the quantum of a sentence in view of contentions that assuming that the accused was guilty of the commission of the offence, even then he did not deserve the sentence of death inasmuch as he had committed the crime under the influence of his father and question whether it was a sudden affair and not premeditated one and in , the sudden heat of passion on a sudden quarrel, the crime was committed and, therefore, the award of death sentence was not justified and whether the motive was also shrouded in mystery and the same was unbelievable.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302‑‑‑Sentence, award of‑‑‑Motive‑‑‑Commission of offence under influence of any elder member of family‑‑ Effect‑‑‑Even if the offence was committed under such influence, the Trial Court was not bound to award lesser punishment to the accused because it was not accepted as a universal rule that whenever the motive alleged by the prosecution was found to be weak or was not proved, the Court was bound to award lesser sentence than death for a murder nor could it be said that a convict was entitled as a matter of right to claim lesser sentence than death when the accused had allegedly committed the offence under the influence of his father or any other elder member of his family.

Noor Muhammad v. The State 1999 SCMR 2722 ref.

(c) Penal Code (XLV of 1860 )‑‑‑

‑‑‑‑‑S.302(b)‑‑‑Reappraisal of evidence ‑‑‑Qatl‑i‑Amd‑--‑‑Falling within the mischief of S.302(b), P.P.C. ‑‑‑Contention by the accused was that it was a sudden affair and not premeditated one and in the sudden heat of passion on a sudden quarrel, the crime was committed‑‑‑Validity‑‑‑Accused alongwith his father went to the place of occurrence having concealed revolver in his Shalwar‑‑‑Once an offence of Qatl‑i‑Amd falling within the mischief of S.302(b), P.P.C. had been successfully established, the convict under Islamic dispensation of criminal justice was liable for normal penalty of death, unless there were facts and circumstances on record like plea of grave and sudden provocation, loss of power of self-­control etc. ‑‑‑Case of accused was not made out for lesser sentence in circumstances.

S.Waris Ali alias Dulli and others v. The State 1999 SCMR 1469 and Abdul Haq v. The State PLD 1996 SC 1 fol.

Ghuncha Gul v. State 1971 SCMR 368; Fazal Ghafoor v. State 1993 SCMR 1136; Muhammad Sharif v. Muhammad Javed alias Jeda PLD 1976 SC 452; Mst. Bismillah v. Muhammad Jabbar 1998 SCMR 862 and Pervaiz v. State 1998 SCMR 1976 ref.

Malik Muhammad Jehanzeb Tamman, Advocate Supreme Court for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate‑on‑Record (absent) for the State.

Date of hearing: 31st May, 2000.

2001 S C M R 250

[Supreme Court of Pakistan]

Present: Mamoon Kazi, Abdur Rehman Khan and Ch. Muhammad Arif, JJ

KAMRAN MALIK ---Petitioner

versus

THE STATE---Respondent

Criminal Petition. No. 154 of 1998, decided on 22nd October, 1998.

(On appeal from the order, dated 31-8-1998 passed by the High Court of Sindh, Karachi in Criminal Transfer Application No.42 of 1997).

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

----S.526---Constitution of Pakistan (1973), Art. 185(3)---Murder---Transfer of case---All the accused persons had been declared as proclaimed offenders---Plea raised by one of the accused persons, for the transfer of the case from place 'J' to any Court at place 'K' was that trial at 'J' involved danger to his life---High Court dismissed the application due to abscondence of the accused---Validity---Accused was himself to blame for the situation in which he found himself---Accused was an absconder ever since the registration of the case against him in 1994 and the whereabouts of other absconders were not known till that day---Accused could not obtain any relief from the Courts of law without surrendering in the case---Leave to appeal was refused.

Muhammad Munir Peracha, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 22nd October, 1998.

2001 S C M R 252

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Qazi Muhammad Farooq, JJ

MUHAMMAD SIDDIQUE, STENOGRAPHER, F I A

HEADQUARTERS, ISLAMABAD and another---Petitioners

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD

and 5 others---Respondents

Civil Petitions for Leave to Appeal Nos. 114 and 115 of 1999, decided on 18th May, 2000.

(On Appeal from the judgment, dated 3-11-1998 of the Federal Service Tribunal, Islamabad, passed in Appeals Nos.324 and 325(R) of 1998).

Civil Servants Act (LXXI of 1973)---

----S. 8(1)---Civil Servants (Seniority) Rules, 1993---Seniority list---Term "selection grade" ---Concept and scope---Selection grade, grant of---Claim of seniority on the basis of selection grade---Validity---Civil servants were granted selection grade prior in point of time but they could not claim seniority over the respondents for the reason that they were not promoted from a lower to higher post---Grant of selection grade was not a promotion in strict sense of the word though the same had overtones of promotion in view of the financial benefit involved---Expression "selection grade" was confined to revision of basic pay scale and did not find mention in S.8 of Civil Servants Act, 1973 and Civil Servants (Seniority) Rules, 1993 under which seniority list of civil servants was required to be prepared with reference to a service, cadre or post and not grade.

1991 SCMR 696 distinguished.

Fazal Elahi Siddiqui, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Mansoor Ahmed, Deputy Attorney-General and Raja Abdul Ghafoor, Advocate- on-Record for Respondents.

Date of hearing: 18th May, 2000.

2001 S C M R 256

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Javed Iqbal, JJ

ALLAH YAR --- Appellant

versus

GENERAL MANAGER, RAILWAYS HEADQUARTERS, LAHORE and another---Respondents

Civil Appeal No. 1254 of 1997, decided on 4th October, 2000.

(On appeal from the order of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 24-6-1997 passed in ICA 46 of 1997).

(a) Railways Servants (Efficiency and Discipline) Rules, 1975---

----S. 4---General Rules for Pakistan Railways, R.120---Removal from service of Railways employee---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider as to whether the judgment of High Court was in accordance with law.

(b) Civil service---

---- Administrative enquiry---Principles.

Following are the principles for administrative enquiry:--

(1) The administrative authority must act in good faith.

(2) The administrative authority is not bound to treat the matter as if it were a trial or to administer oath or examine witnesses.

(3)' The authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him.

(4) In order to act justly and to reach just ends by just means the Courts insist that the authority should adopt the elementary principles of natural justice unless the same have been expressly excluded.

University of Dacca v. Zakir Ahmad PLD 1965 SC 90 ref.

(c) Civil service----

---- Administrative enquiry---Judicial or quasi judicial proceedings---Rules of natural justice---Applicability---Following principles are laid down with reference, to enquiries:--

(1) In conducting an enquiry the Enquiry officer does not act as a Court but he exercises judicial or quasi-judicial functions.

(2) He is not bound to conform. to the provisions of the Evidence Act, but in exercising judicial or quasi-judicial function he must act in a judicial spirit and manner in conformity to well-recognised principles of natural justice.

(3) When a public authority is directed under a law to make an "enquiry" I and the competent authority has to take action on the basis of its report and recommendations it cannot carry out a grotesque caricature of it, but on the contrary, has to conduct it in a manner which does not violate the basic rules of natural justice.

Osman Abdul Karim Bawaney v. Collector of Customs, Chittagong PLD 1962 Dacca 162 and Muhammad Nawaz Khan v. Pakistan PLD 1970 Lah. 811 rel.

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

----Arts. 2-A, 4 & 25---Equality of citizens, principle of---Exercise of discretion by Authority---Scope---Exercise of discretion is not an act of discrimination--Discretion becomes an act of discrimination only when it is improper or capricious exercise or abuse of discretionary authority, and the person against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise---Where the discrimination is not based on any rational ground bearing upon the subject dealt with, the law offends against the principle of equality and is void.

1992 CLC 219; AIR 1965 All. 275 and AIR 1952 SC 75 ref.

?(e) Appeal---

----Appellate forum is required to examine each and every aspect of the matter in depth and only thereafter conclusion should be drawn in accordance with record, evidence, prevalent laws, rules made therein, principles of natural justice and settled norms of justice.

Abdul Hafeez v. Chairman, Municipal Corporation, Lahore PLD 1967 Lah. 1251 ref.

(f) General Rules for Pakistan Railways (1970 Edition)-?---

---- Rr.??????????? 120 & 397---Compulsory retirement---Employee on the charges of violation of rules? and negligence was dismissed from service---Dismissal from service was converted into compulsory retirement in departmental appeal---Service Tribunal dismissed appeal of the employee on the ground that Tribunal had no jurisdiction ---Employee remained unsuccessful before Labour Court as well as the High Court---High Court had not appreciated the factual and legal aspects of the controversy in its true perspective which resulted in serious miscarriage of justice---High Court had also made no mention about the prevalent rules, evidence and record of the case which ought to have been considered---Inquiry having not been conducted in accordance with law, the entire subsequent actions based on that inquiry report had no legal sanctity---Order of dismissal of employee, which was subsequently converted into compulsory retirement, suffered from legal infirmity which was not curable and the same was set aside---Employee was ordered to be reinstated in service with back benefits from the 'date of his dismissal from service.

Shafiullah Khan v. Government of West Pakistan PLD 1970 Pesh. 176; AIR 1954 Bom. 351 and PLD 1971 Lah. 734 ref.

Appellant in person.

Muhammad Aslam Sindhu, Advocate Supreme Court and Mahmud?ul-Islam, Advocate- on-Record for Respondents.

Date of hearing: 4th October, 2000.

2001 SCMR265

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J., Munir A.

Sheikh and Nazim Hussain Siddiqui, JJ

DILBER HUSSAIN HASHMI and another---.Appellants

versus

MUSLIM COMMERCIAL BANK, SHAHRA-E-IQBAL BRANCH, QUETTA ---Respondent

Civil Appeal No.99-Q of 1994, decided on 21st September, 2000.

(On appeal from the order, dated 16-9-1993 passed by the Balochistan High Court, Quetta in R. F. A. No. 15 of 1993).

(a) Contract Act (IX of 1872)---

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether there was sufficient oral and documentary evidence to justify to hold that the relevant documents and mortgage deed was obtained from the appellants under coercion and duress.

(b) Contract Act (IX of 1872)---

----S. 15---"Coercion"----Defined.

The term "coercion" is defined in section 15 of the Contract Act. It means committing or threatening to commit any act forbidden by the Pakistan Penal Code or unlawful detaining or threatening to detain any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

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

----S. 39---Contract Act (IX of 1872), S. 15---Cancellation of document--­Plea of coercion and duress---Concurrent findings of both the Courts below---Appellants misappropriated certain amount and during criminal proceedings acknowledged their liability to the tune of Rs.366,534.59 and executed the disputed mortgage deed---Mere fact that agreement was entered into under fear of a criminal proceedings was not sufficient to avoid the agreement on the ground of coercion, and that simply because a creditor threatened his debtor to involve him in a criminal case---Where there were some basis for the prosecution, the same would not be "coercion"--­Documents in question, held, were executed voluntarily in circumstances.

Rameshwar Marwari v. Upendranath Das Sarkar AIR 1926 Cal. 455 and Kazi Noor Muhammad v. Pir Abdul Sattar Jan PLD 1959 Kar. 348 ref.

Appellants in person. M.K.N. Kohli, Advocate-on-Record for Respondent.

Date of hearing: 21st September, 2000.

2001 S C M R 269

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh

and Nazim Hussain Siddiqui, JJ

ATTAULLAH SHEIKH---Petitioner

versus

WAPDA and others---Respondents

Civil Appeal No.668 of 1999, decided on 20th September, 2000.

(On Appeal from the judgment, dated 1-9-1997 passed by the Federal Service Tribunal in Appeal No.295(L) of 1997).

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

----Art. 212(3)---Fundamental. Rules, F.R.' No.54(b)---Leave to appeal was granted by Supreme Court to consider if F.R. No.54(b) already having been declared as repugnant to Injunctions of Islam as per judgment of Supreme Court reported as Dr. Muhammad Islam, Instructor, Animal Husbandry In-­Service Training Institute, Daudzai, Peshawar District v. Government of N.­W.F.P. (1998 PLC (C.S.) 1430) could be invoked.

Dr. Muhammad Islam, Instructor, Animal Husbandry In-service Training Institute Daudzai, Peshawar District of N.-W.F.P. (1998 PLC (C.S.) 1430 ref.

(b) Fundamental Rules----

-----F.R. 54(b)---Pay and allowances, grant of---Period of absence from duty- --Entitlement of reinstated civil servant---Scope---Authority under the provision of F.R.54(b) of Fundamental Rules may withhold part of allowance and pay of a Government servant on his reinstatement---Rule 54(b) could be invoked by the Departmental Authority in appropriate cases--­Where the civil servant is not honourably acquitted and his case is not covered by F.R.54(a) of Fundamental Rules, Revising or Appellate Authority may under the provision of F.R.54(b) of Fundamental Rules, still grant to the civil servant for the period of his absence from duty such portion of such pay and allowances as the Authority deems fit---Normally the period of absence from duty in a case covered by F.R. 54(b) of Fundamental Rules is not to be treated as period spent on duty, but in deserving cases, the Revising/Appellate Authority can direct so.

(c) Criminal trial---

----Acquittal---All acquittals are "honourable" and there can be no acquittal which can be termed as "dishonourable".

Dr. Muhammad Islam, Instructor, Animal Husbandry In-service Training Institute Daudzai, Peshawar District of N.-W.F.P. (1998 PLC (C. S.) 1430 ref.

(d) Fundamental Rules---

---- F.R. 54---Pay and allowance for period of suspension---Acquittal of civil servant from criminal case---Civil servant was reinstated in service after acquittal from a criminal case---Payment of subsistence allowance only to the civil servant---Validity---Where the criminal charges were not established before a competent Court of law and the civil servant was acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant 'and unjustified---Civil servant was acquitted by the competent Court of law which would mean that civil servant had not been suspended and would be entitled to all pay and allowances admissible under the rules, minus the amount which the civil servant had already drawn.

Dr. Muhammad Islam, Instructor, Animal Husbandry In-service Training Institute Daudzai, Peshawar District of N.-W.F.P. (1998 PLC (C.S.) 1430 and Government of N.-W:F.P. v. I.A. Sherwani and another PLD 1994 SC 72 ref.

Ch. Amir Hussain, Advocate Supreme Court for Appellant.

Muhammad Sharif, Advocate Supreme Court for Respondents.

Date of hearing: 20th September, 2000.

2001 SCMR274

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

SHAFQATULLAH and others---Petitioners

versus

DISTRICT AND SESSIONS JUDGE, NOWSHERA, N.-W.F.P and 4 others---Respondents

(On appeal from the judgment, dated 29-7-2000 of Peshawar High Court in Writ Petition No.813 of 2000).

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

----O. XXI, Rr. 99, 100 & 103---Specific Relief Act (I of 1877), Ss. 42 & 56---Constitution of Pakistan (1973), Arts,. 199 & 185(3)---Relief of declaration of right, title and right to injunction---Decree passed by the Trial Court was maintained up to Supreme Court---During execution application, brother of the judgment-debtor filed objection on the ground that they were not party to the suit proceedings and they were condemned unheard---Plea of non joinder of necessary parties was found to be without merit by the Trial Court---Such objection was overruled by the Executing Court as well as by the Lower Appellate Court and by High Court in its Constitutional jurisdiction---Validity---Relief of declaration of right, title and right to injunction could be asked only against the persons who would deny such right---Where the petitioners were not unaware of the pending proceedings which lasted for more than two years, they, at the time of execution of the decree could not be permitted to object to its execution considering that the petitioners were estopped on the ground of their such conduct---Petitioners did not approach the High Court ,with clean hands entitling them to discretionary equitable relief under the Constitutional jurisdiction---Leave to appeal was refused.

Adam Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 29th September, 2000.

2001 S C M R 279

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Syed ALI ASGHAR and 3 others---Petitioners

versus

CREATORS (BUILDERS) and 3 others---Respondents

Civil Petition No.279-K of 2000, decided on 5th September, 2000.

(On Appeal from the judgment, dated 12-4-2000 of High Court of Sindh at Karachi in C.P. D-1939 of 1998).

(a) Sindh Buildings Control Ordinance (V of 1979)---

----S. 6(3)---Change in use of plots---Failure to obtain permission under S.6(3) of Sindh Buildings Control Ordinance, 1979---Validity---Permission for change in the use of building was though not required but change in the use of plots being necessary, provision of S.6(3) of Sindh Buildings Control Ordinance, 1979, was not applicable.

(b) Pakistan Environmental Protection Ordinance (XXXVII of 1983)---

-----S. 8(2)---Raising of multi-storeyed building---No bar under Pakistan Environmental Protection Ordinance, 1983, to the raising of such building.

(c) Administration of justice---

---- Changed circumstances---Court can take notice of changed circumstances and subsequent events relevant for the determination of controversy between the parties.

(d) Karachi Development Authority Order (5 of 1957)---

----Arts. 36 & 40---Change in use of plots---Power to grant such permission---Change in use of plots being for the benefits of the people, Competent Authority was vested with the powers to grant such permission--­No absolute bar exists to grant such permission for change of use of plots under provisions of Karachi Development Authority Order, 1957.

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

----Art. 129---Judicial and official acts---Presumption of truth--In absence of legal and valid material on record, legal presumption under Art. 129, Qanune-e-Shahadat, 1984 is that the judicial and official acts have been regularly performed.

(f) Karachi Building and Town Planning Regulations---

----Part II, R. 4(c)---Karachi Development Authority Order (5 of 1957), Arts.36 & 40---Constitution of Pakistan (1973), Arts. 1.85(3) & 199--­Change in use of plots ---Constitutional petition under Art. 199 of the Constitution challenging the construction of commercial building--­Residential plots converted into commercial plots ---Respondents had got the plots commercialized from the concerned Authorities on payment of required fees---Karachi Buildings Control Authority also granted approval for raising building after getting the required public notices published in daily newspapers---No-objection Certificates were also obtained from the civic agencies for the supply of amenities in respect of the building to be raised in accordance with the approved plan---High Court had rightly dismissed the Constitutional petition filed by the petitioners against the construction in question----Leave to appeal was refused by. Supreme Court.

Ardeshir Cowasjee v. Muhammad Naqi Nawab PLD 1993 Kar.639; Abdul Razak v. Karachi Buildings Control Authority PLD 1994 SC 512; Hashmatullah v. Karachi Municipal Corporation PLD 1971 Kar. 514; Hakim Ali v. Muhammad Salam 1992 SCMR 46; Amina Begum v. Ghulam Dastagir PLD 1978 SC 220; Raj Muhammad v. Muhammad Zareen 1980 SCMR 241; Ibrahim v. Rehmatullah 1985 SCMR 241; Federation of Pakistan v. Aftab Ahmad Khan Sherpao PLD 1992 SC 723; Ardeshir Cowasjee v. Government of Sindh 1998 MLD 1219 and Excell Builders v Ardeshir Cowasjee 1999 SCMR 2098 ref.

K.M. Nadeem, Advocate Supreme Court alongwith Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

G.H. Malik, Advocate Supreme Court alongwith Farogh Naseem, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondent.

Date of hearing : 5th September, 2000.

2001 S C M R 286

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry

and Rana Bhagwan Das, JJ

ALLAH DINO and another---Petitioners

versus

MUHAMMAD SHAH and others---Respondents

Civil Petition No.459-K of 2000, decided on 26th October, 2000.

(On appeal from the judgment of the High Court of Sindh Hyderabad Bench, Hyderabad, dated 11-5-2000 passed in R.A. No.34 of 1998).

Civil Procedure Code (V of 1908)---

----S. 115--Limitation Act (IX of 1908), Ss. 5 & 29---Constitution of Pakistan (1973), Art.185(3)---Revision---Provisions of S. 5, Limitation Act, 1908--- Applicability--- Revision was dismissed by High Court as being time-barred and delay was not condoned---High Court refused to condone the delay for the reasons that the provisions of S. 5 of Limitation Act, 1908, were not applicable to the proceedings under S. 115, C.P.C. in view of the provision of S. 29(2) of Limitation Act, 1908---Validity---Where the statute governing the proceedings did not prescribe period of limitation, the proceedings instituted thereunder would be controlled by Limitation Act, 1908, as a whole---Where the law under which proceedings had been launched had itself prescribed a period of limitation as under S. 115, C.P.C. then the benefits of S. 5 of the Limitation Act, 1908, could not be availed unless the same had been made applicable as per S. 29(2) of Limitation Act, 1908---No flaw in the judgment of High Court relating to interpretation of S.5 of the Limitation Act, 1908 qua S. 115(2), C.P.C. having been found leave to appeal was refused.

1994 SCMR 883 and 1995 SCMR 197 distinguished.

The Canara Bank, Ltd. v. The Warden Insurance Co. Ltd. AIR 1935 Born. 35; Abdul Ghaffar and others v: Mst. Mumtaz PLD 1982 SC 572; Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239; Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi PLD 1999 Kar. 76 and Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330 ref.

Abdur Rahim Kazi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate- on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th October, 2000.

2001 S C M R 288

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Rashid Aziz Khan, JJ

Mst. YASMIN QADEER---Petitioner

versus

Dr. AKHTAR SUHAIL CHUGHTAI and another---Respondents

Civil Petition No.973-L of 1999, decided on 20th March, 2000.

(On appeal from the judgment of Lahore High Court, Lahore, dated 8-5-1999 passed in SAO No. 171 of 1996).

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

----S. 13---Bona fide personal need of landlord---Subletting of the premises and using of residential property for commercial purposes---Landlady required the premises for use of her son and it was alleged that the tenant had sublet the premises---Rent Controller dismissed the petition while the Lower Appellate Court allowed the appeal filed by the landlady---High Court in exercise of appellate jurisdiction restored the order passed by the Rent Controller---Validity---Ample evidence was produced to establish personal reed as well as subletting by means of oral as well as documentary evidence---Supreme Court repelled the contention that residential property could not be used for commercial purposes---Judgment passed by High Court being not sustainable was liable to be set aside---Tenant was directed to hand over the vacant possession of the premises to the landlady within six months without execution proceedings---Petition for leave to appeal was disposed of accordingly.

Abdul Ghaffar v. Salamat Ullah PLD 1961 (W.P.) Lah. 233 and Mst. Zubaida Sultana v. Dr. Ihkhlaq Ahmad and others NLR 1991 Civil 769 ref.

Sh. Zia Ullah, Senior Advocate Supreme Court and Muhammad Islarn, Advocate- on-Record for Petitioner.

Mahfooz-ul-Haq Khan, Advocate Supreme Court and M.A. Qureshi, Advocate- on-Record for Respondent.

Date of hearing: 20th March, 2000.

2001 S C M R 290

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Iftikhar Muhammad Chaudhry, JJ

WASEEM-UD-DIN---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.401-L of 1999, decided on 29th March, 2000.

(On Appeal from the judgment, dated 31-5-1999 passed by Lahore High Court, Lahore in Criminal Appeal No.91 of 1993/BWP and M.R. No.7 of 1994/BWP).

Penal Code (XLV of 1860)----

----S. 302---Criminal Procedure Code (V of 1898), S. 342---Constitution of Pakistan (1973), Art. 185(3)---Defence plea---Admissibility---Happening of the incident and causing of injuries to the deceased by the accused was not denied---Prosecution established that the accused committed the offence--­Trial Court convicted the accused under S. 302, P.P.C. and sentenced him to death---High Court maintained the conviction but converted death penalty into imprisonment for life---Contention of the accused was that the defence version was not accepted in toto by the Courts below---Validity---High Court' had considered the defence plea at length and had rejected the same by giving cogent reasons---Statement of accused could only be accepted where the prosecution evidence was rejected in its totality---Prosecution evidence in the case was not rejected, therefore, stand taken by the accused in his statement under S. 342, Cr.P.C. was not worthy of acceptance---Judgment of High Court called for no interference by Supreme Court---Leave to appeal was refused.

Faiz and another v. The State 1983 SCMR 76; Sultan Khan v. Sher Khan and others PLD 1991 SC 502 and State v. Muhammad Hanif (1992 SCMR 2047 ref.

Sh. Naveed Shehryar, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 29th March, 2000.

2001 S C M R 294

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rashid Aziz Khan, JJ

Mrs. SHAHIDA FAISAL and others---Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos. 1630-L and 1662-L of 2000, decided on 10th July, 2000, (On Appeal from the judgment, dated 25-4-2000 (14-6-2000) passed in W.Ps. 739 and 6184 of 2000 respectively).

(a) National Accountability Bureau Ordinance (XVIII of 1999)---

----S. 5(R) [as amended by National Accountability Bureau Ordinance (IV of 2000)]---Constitution of Pakistan (1973), Art. 185(3)---"Wilful default"--­Borrower after negotiation with the Bank, got his loan rescheduled--­Authorities initiated proceedings against the borrower under the provisions of National Accountability Bureau Ordinance, 1999, declaring him as a "wilful defaulter"---Validity---Leave to appeal was granted by Supreme Court to examine the interpretation of the relevant provisions of National Accountability Bureau Ordinance, 1999 [as amended].

(b) National Accountability Bureau Ordinance (XVIII of 1999)---

----S. 9(b)---Bail, grant of---Jurisdiction of Supreme Court---Courts other than Supreme Court were covered under the provisions of S.9(b) of National Accountability Bureau Ordinance, 1999 and as such the Courts including the High Court had no jurisdiction to grant bail---Omission of words "Supreme Court" from S. 9(b) of National Accountability Bureau Ordinance, 1999, being significant jurisdiction of Supreme Court to grant bail was not barred under S. 9(b) of National Accountability Bureau Ordinance, 1999.

(c) National Accountability Bureau Ordinance (XVIII of 1999)---

----S. 5(R)---Bail, grant of---Wilful default---Accused (borrowers) were behind the bar for the last more than six months---Loans were rescheduled by the Bank and the accused-persons were adhering to the schedule of payment settled between the Banks and the accused persons, was yet to be determined as to whether the cases of the accused persons fell within the mischief of the term "wilful default" and there was no allegation that the accused persons had not adhered to the schedule of payment settled between them---Bail was granted in circumstances.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Nasir Mahmood, Advocate and M.A. Qureshi, Advocate-on-Record for Petitioners.

Kh. Saeed-uz-Zafar, D.A.-G. for Respondents.

Date of hearing: 10th July, 2000.

2001 S C M R 300

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J., Nasir Aslam Zahid

and Mamoon Kazi, JJ

SHAH MUHAMMAD CHAUDHRY----Petitioner

versus

FEDERAL SERVICE TRIBUNAL and others----Respondents

Civil Petition No.363-K of 1999, decided on 27th December, 1999.

(On appeal from the judgment of the Federal Service Tribunal, dated 22-4-1999, passed in Appeal No.65-K of 1999).

Constitution of Pakistan (1973)----

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Appeal before Service Tribunal---Limitation---Appeal of the civil servant was dismissed by Service Tribunal being time-barred---Contention raised by the civil servant was that his case was pending before Reinstatement Review Committee and appeal was filed after the decision of Committee thus appeal before the Tribunal was not time-barred---Validity---Where the civil servant's case had been referred to the Committee and case remained there pending for decision, there was no occasion for the civil servant to approach the Service Tribunal unless final decision was taken in that regard---Service Tribunal had overlooked such fact of the case and the finding of the Service Tribunal that the case of civil servant was time-barred required reconsideration---Judgment of Service Tribunal was set aside and Supreme Court converted petition for leave to appeal into appeal and remanded the case accordingly.

Ali Akbar, Advocate Supreme Court and Advocate-on-Record for Petitioner.

Date of hearing: 27th December, 1999.

2001 S C M R 302

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif Qazi Muhammad Farooq

and Deedar Hussain Shah, JJ

MUHAMMAD SIDDIQUE and others----Petitioners

versus

SAJAWAL KHAN and another----Respondents

Civil Petition for Leave to Appeal No.572 of 2000, decided on 25th September, 2000.

(On appeal from the judgment/order, dated 22-11-1999, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in C.R. No.575-D of 1998).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit--­Talb-i- Muwathibat and Talb-i-Ishhad---Pre-emptor proved making of both the Talbs and without loss of time approached the Court for relief and the suit was decreed--- Documentary evidence furnished by the parties was properly examined, analysed and assessed, by the Trial Court as well as the Lower Appellate Court and High Court---No irregularity, illegality, misreading or non-reading of evidence by the Courts below was found--­Order of High Court did not suffer from any jurisdictional error and was not open to exception---Findings of the Courts below being in accordance with the principles settled by Supreme Court, leave to appeal was refused.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Shah Hussain v. Khani Zaman PLD 1996, Pesh. 73; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Khani Zaman v. Shah Hussain PLD 1998 SC .121; Amir Jan v. Ghulam Muhammad PLD 1997 SC 883, Hedaya, Chap. II and 1999 SCMR 958'ref.

Fazal Elahi Siddiqui, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Date of hearing: 25th September, 2000.

2001 S C M R 308

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Iftikhar Muhammad Chaudhry

and Abdul Hameed Dogar, JJ

THE STATE---Appellant

versus

MUHAMMAD YAQOOB and others---Respondents

Criminal Appeals Nos. 49 of 1999 and 173 of 2000, decided on 18th September, 2000.

(On appeal from the judgment/order dated 24-6-1998, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.85-T/98/M.R No. 62-T/98).

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

----S. 540---Penal Code (XLV of 1860), S.302/34/109---Anti-Terrorism Act (XXVII of 1997), S.7---Summoning of material witnesses---Prosecution version was that the accused was arrested on 22-10-1997, whereas the defence version was that he was in fact arrested during the night between 16/17-10-1997---Such two conflicting versions were not about a minor or insignificant matter but related to a very crucial and important piece of evidence---Eye-witnesses, the Magistrate and the Investigating Officer had been cross-examined about the date of arrest of the accused as shown in the newspaper which indicated that the accused had made efforts to lay basis for his arguments that he was arrested as claimed by him and before his remand to judicial lock-up he was shown to the witnesses---Had the trial Court accepted-the application of accused under S.540, Cr.P.C., his plea would also have appeared on record and keeping the stand of the prosecution and the defence side by side Court would have been able to resolve the controversy in accordance with law---Conviction and sentence of accused were consequently set aside and the case was remanded to Trial Court with the direction to summon the witnesses mentioned in the application submitted by the accused under S. 540, Cr.P.C. alongwith the relevant record and examine them as Court witnesses and decide the case afresh on the basis of the whole evidence available on record according to law.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Rashid Ahmad v. The State PLD 1971 SC 709; Abdul Latif and others v. State of Uttar Pradesh AIR 1978 SC 472 and Shakir Muhammad and another v. The State PLD 1985 SC 357 ref.

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

----S. 540---Power of Court to summon material witness etc.---Scope--­Section 540, Cr.P.C. has two parts; in the first part discretion lies with the Court to examine or not to examine any person as a witness, but according to its second part Court is bound to examine any person as a witness if his evidence appears to be essential for just decision of the case irrespective of the fact that any party had requested for it or not.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.

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

----S. 540---Court's power to summon material witness etc.---Intent and import---Calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose, but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object--­Salutary principle of judicial proceedings in criminal cases is to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court---Every criminal case, no doubt, has its own facts and. therefore, no hard and fast rule or criteria for general application can be laid down in this respect, but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of S. 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical or formal objection in this respect as do justice and to avoid miscarriage of justice.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; The State v. Maulvi Muhammad Jamf and other PLD 1965 SC 681; Rashid Ahmad v. The State PLD 1971 SC 709; Abdul Latif and others v. State of Uttar Pradesh AIR 1978 SC 472 and Shakir Muhammad and another v. The State PLD 1985 SC 357 ref.

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

----Ss. 302/34/109---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal of accused---Mere recovery on the pointation of accused, in the absence of any other incriminating evidence, was not sufficient to hold him guilty---Prosecution was unable to show that the reasons given by High Court in the impugned judgment for acquittal of the accused were arbitrary or perverse---Acquittal order being not suffering from misreading or non-reading of evidence was not interfered with by the Supreme Court---Appeal against acquittal of accused was dismissed in circumstances.

Mehram Ali's case PLD 1998 SC 1445 ref.

Sahibzada Ahmad Raza Khan Qasuri, Advocate Supreme Court and Karam Elahi Bhatti. Advocate-on-Record for Appellant (in Criminal Appeal No. 173 of 2000) and for Respondent (in Criminal Appeal No. 49 of 1999).

Maqbool Elahi Malik, A.-G., Punjab, Nasim Sabir and Tariq Khokhar, Addl. A.-G. Punjab, Ms. Yasmin Saigal, Asstt. A.-G. Punjab and Rao M. Yousaf Khan, Advocate- on-Record for Appellant (in Criminal Appeal No.49 of 1999) and for Respondent (in Criminal Appeal No. 173 of 2000).

Dates of hearing: 12th to 15th and 18th September, 2000.

2001 S C M R 328

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Javed Iqbal

and Hamid Ali Mirza, JJ

CIVIL AVIATION AUTHORITY

and 3 others---Petitioners

versus

IZHAR AHMAD and 144 others---Respondents

Civil Petition No. 1081 of 2000, decided on 14th September, 2000.

(On Appeal from the judgment, dated 9-6-2000 of the Lahore High­ Court in Civil Revision No.295 of 2000).

(a) Words and phrases----

---------Abate"---Meaning.

Black's Law Dictionary, VIth Edn., p. 4, col. 1 ref.

(b) Words and phrases---

----"Abatement"---Meaning.

The Oxford English Dictionary, Vol. 1, p. 9 ref.

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

----Ss.2-A & 6---Word "abate"---Scope---Word "abate" has not been used in S. 6 of Service Tribunals Act, 1973, with the object of nullifying the effect of decree or orders passed prior to the insertion of S.2-A in Service Tribunals Act, 1973.

The State v. Dosso PLD 1958 SC (Pak.) 533 ref.

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

----Ss. 2-A & 6---Constitution of Pakistan (1973), Art. 212---Abatement of proceedings---Insertion of S. 2-A in Service Tribunals Act, 1973---Effect--­Service matter was decreed by Civil Court prior to 10-6-1997---Authority preferred appeal before District Judge but during pendency of the appeal, S.2-A was inserted in Service Tribunals Act, 1973, consequently the appeal was dismissed as abated---Authority filed appeal under Ss.2-A & 6 of Service Tribunals Act, 1973, but the same was dismissed in limine---Civil servant filed execution application and the Authority resisted the same by filing objections---Executing Court overruled, the objections and allowed execution---Such order of the Executing Court was upheld by the Appellate Court as well as by the High Court in revision---Contention of the Authority was that as the appeal was continuation of the suit and the appeal having been abated by operation of law, the execution application had become infructuous as there was no decree for execution---Validity---Only the pending appeal had abated and the decree passed prior to the target date i.e. 10-6-1997 could not be said to have been abated because of promulgation and insertion of S.2­A into Service Tribunals Act, 1973---Judgment and decree unless either set aside or reversed by the higher Court or was so declared to be nullity by operation of law, same could not he said to have become ineffective, inoperative and inexecutable when the decree-holder had acquired vested rights which could not be taken away subsequently because of abatement of pending proceedings.

Messrs Sui Southern Gas Company Limited v. Khawaja Muhammad Munir and another 2000 SCMR 702; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Wajid Ali v. Sayed Sajid Ali 1985 SCMR 401; Allaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Commissioner of Income-tax v. M/s. Farrukh Chemical Industries 1992 SCMR 523; Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income-tax PLD 1992 SC 549 and Zahiruddin v. Anjuman-e-Himayat-e-Islam 1989 MLD 480 distinguished.

The State v. Dosso PLD 1958 SC (Pak) 533; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 and Sardar Ali v. Muhammad Ali PLD 1988 SC 287 ref.

Fakhruddin G. Ebrahim, Advocate Supreme Court and M.S. Khattak, Advocate- on-Record for Petitioners.

Dr. A. Basit, Senior Advocate Supreme Court for Respondents.

Date of hearing: 14th September, 2000

2001 S C M R 338

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ

MUHAMMAD LEHRASAB KHAN---Petitioner

versus

Mst. AQEEL-UN-NISA and 5 other---Respondents

Civil Petition for Leave to Appeal No. 1433 of 1999, decided on 29th September, 2000.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15-7-1999 passed in Writ Petition No.135/99).

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

----Art. 199---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitutional petition---Writ of certiorari---Reappraisal .of evidence---Exercise of jurisdiction by High Court---Scope---Ordinarily High Court in its Constitutional jurisdiction, does not undertake to reappraise evidence in the matters to disturb the findings of fact but the Court would certainly interfere where such findings are found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers---Where the District Court is the final Appellate Court and the Court in appropriate cases of special jurisdiction reverses the finding of the Trial Court on the grounds not supported by material on record, the High Court can interfere with such findings by issuing writ of certiorari to correct the wrong committed by the Appellate Authority---High Court can justifiably exercise its Constitutional jurisdiction as the same is supervisory as well as in aid and to sub-serve the cause of justice and to correct the wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject.

Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401 and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Mutation---Document of title---Proof of such document---Burden of proof---Mutation is not a document of title and such document by itself does not confer any title, right or interest---Burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour--­Although record of rights are not instruments of title but unless rebutted, presumption of truth is attached to them.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Mutation---Exclusion of heirs---Attestation on the basis of custom--- Validity---No mutation can be entered and attested on the basis of custom excluding other legal heirs of the propositus.

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

----S. 13---West Pakistan Land Revenue Act (XVII of 1967), S.42--­Ejectment of tenant---Mutation, proof of ownership---Petitioner being brother of the respondent, claimed exclusive ownership of the premises--­Petitioner in proof of ownership relied on mutation of inheritance wherein the respondent sister was not included---Rent Controller did not rely on the mutation and decided the ejectment petition in favour of the respondent sister---Appellate Court reversed the findings of the Rent Controller, but High Court, in exercise of its Constitutional jurisdiction, set aside the order of Appellate Court and restored that of the Rent Controller---Validity---Rent Controller, in view of the evidence and the documents placed on record, was justified to hold the respondent sister as landlady---Appellate Court failed to appreciate the evidence both oral and documentary in its true perspective, hence, arrived at the erroneous conclusion and the same was rightly upset by High Court in its Constitutional jurisdiction.

Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Lal Din Masih v. Sakina Jan 1985 SCMR 1972; Muhammad Hayat v. Sh. Bashir Ahmad and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul 1988 SCMR 401; Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2,514 and Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others 1982 SCMR 392 ref.

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

Gulzar Ahmad Khan, Advocate and Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 14th September, 2000.

2001 S C M R 345

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Late Mst MAJEEDAN through Legal Heirs

and another---Petitioners

versus

Late MUHAMMAD NASEEM through Legal Heirs

and another---Respondents

Civil Petition No.566-K of 1999, decided on 28th July, 2000.

(On Appeal from the order of the High Court of Sindh, Karachi, dated 10-9-1999 passed in Civil Revision Application No. l of 1999).

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

----S. 9---Suit for recovery of possession---Essentials to be proved---Raising question of title in such suit---Scope---Suit under S. 9, Specific Relief Act 1877 is entirely a different kind of action---Provision of S. 9, Specific Relief Act, 1877 gives a special privilege to persons in possession who take action promptly on their dispossession of immovable property---Where persons are dispossessed, S. 9 of Specific Relief Act, 1877, entitles them to succeed simply by proving that they were in possession; that they had been dispossessed by the defendant: that the dispossession is not in accordance with law, and that the dispossession had taken place within six months of the suit---No question of title either of the plaintiff or of defendant can be raised or gone into such cases.

1989 CLC 318; 1987 Dhaka LR 8; 1985 CLC 2309; 1983 CLC 507; 1981 CLC 654; PLD 1970 Lah. 560; 18 DLR; PLD 1969 Kar. 78; AIR 1959 All. 1; AIR 1956 Hyd. 170 and AIR 1927 All. 669 ref.

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

. ----S. 9---Suit for recovery of possession---Question of title qua suit property---Title is not material in a suit falling under S.9 of Specific Relief Act, 1877---Any person who has been dispossessed otherwise than due course of law, without pleading or proving title, can seek to be re-inducted into possession even though such a relief has been sought against true owner of the property.

Sobha v. Ram Phal AIR 1957 All. 394; Azam Khan v. The State of Pakistan and another PLD 1957 Kar. 892; Siddiq Ahmed v. Estate Officer and another PLD 1957 Kar. 887; Riaz and another v. Razi Muhammad PLD 1979 Kar. 227 and Supercon Ltd. v. Eastern Construction Ltd. 1987 CLC 1566 ref.

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

----S. 9---Civil Procedure Code (V of 1908), S.115---Suit for recovery of possession--- Order or decree of Trial Court---Remedy---Revision lies to High Court under S. 115, C.P.C. in respect of order or decree made in a suit under S.9 of Specific Relief Act, 1877---Where in such a suit an aggrieved party can institute a suit on the basis of title, interference in revision would be generally declined even though S. 9 of Specific Relief Act, 1877 does not exclude the remedy by way of revision altogether.

1983 PSC 158; PLD 1964 Pesh. 157=16 DLR (W.P.) 164; PLD 1950 Pesh. 35; PLD 1952 Dacca 89; 1991 MLD 1046; PLD 1952 Dacca 89; AIR 1953 Assam 158; 72 Mad. L.W. 361; PLR 1951 Dacca 140; AIR 1942 Oudh 179; AIR 1957 Hyd. 4; AIR 1949 Nag. 422; AIR 1926 Mad. 290; AIR 1933 Mad. 609; AIR 1932 Oudh 39; AIR 1937 Oudh 183; AIR 1934 All. 541 and 1989 CLC 219 ref.

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

-----S.9---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art. 185(3)---Suit for recovery of possession--­Dispossession by force without due course of law---Plaintiff was dispossessed some 27 years back and the, matter was pending before the Courts on hyper technical issues---Trial Court 'decreed the suit and revision before High Court was dismissed---Validity---No illegality or infirmity had been committed either by the Trial Court or Revisional Court calling for interference ---Interference 'in' a revision in a particular case was justified where the case might have been disposed of on an obvious misapprehension as to the legal position, or where there was some defect of jurisdiction--- Where, however, no exceptional circumstances were brought out and the only contention raised was that the finding on a question of fact was not based on adequate evidence or was erroneous, interference would not be justified---Converting revision petition into appeal would be against the spirit of S. 9 of Specific Relief Act, 1877, as the same was expressly disallowed by law.

AIR 1953 Assam 158; 1989 CLC 219 and 17 C WN 501 ref.

Khalil-ur-Rehman, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Syed Sarfraz Ahmed, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate- on-Record (absent) for Respondents.

Date of hearing: 27th July, 2000.

2001 SCMR 352

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

NAZEER AHMED ---Petitioner

versus

GOVERNMENT OF SINDH through Chief Secretary

Sindh, Karachi and 2 other---Respondents

Civil Petition for Leave to Appeal Nos.462-K and 484-K of 1999, decided on 9th October, 2000.

(On Appeal from the order of the Sindh Service Tribunal .at Karachi, dated 25-5-1999 passed in Appeal No.67 of 1998).

(a) Sindh Civil Servants Act (XV of 1973)---

-----S. 8---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 13---Constitution of Pakistan (1973), Art. 212(3)--­Seniority---Retrospective promotion--- Such promotion was made on the basis of notification issued by Government and the petitioner civil servant was made senior to the respondent civil servant---Service Tribunal allowed appeal filed by the respondent civil servant and fixed the seniority in the light of order passed by Supreme Court in an earlier petition filed by the respondent civil servant---Validity---Seniority could not be confirmed with retrospective effect unless such right was established--Government had the power to make retrospective promotion but there must exist some criteria for assignment of such right with retrospective effect---Seniority might be so assigned that the seniority of senior was not adversely affected---Dates of promotion could not be later than dates of actual promotion as valuable right accrued on promotion and the officials concerned could not be denied the benefits which had accrued to them---Regularization of seniority from the retrospective date was not permitted and was beyond the power of Government---Notification in question which could not have been issued under R.13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 and which was a unique and classic example of misuse of authority and abuse of power and uncalled attempt had been made by distorting legal position to frustrate the object and decision of Supreme Court---Such administrative tyranny was deprecated by Supreme Court--­Petitioner civil servant could have been promoted with the same batch but he could not be made senior to the respondent civil servant---View taken by the Service Tribunal was in accordance with Service Rules and settled norms of justice---When the petitioner civil servant got himself impleaded as intervenor, and proper opportunity of hearing was afforded to him, he could not say that he was condemned unheard---Supreme Court refused to interfere with the judgment of the Service Tribunal---Leave to appeal was refused.

Bashir Ahmed Khan-v. Mahmud Ali Khan PLD 1960 SC 195; PLD 1991 SC 82 and 1985 SCMR .1201 ref.

(b) Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---

----Rr. 11 & 13---Seniority, fixing of---Provisional seniority list---Validity--­Seniority in the grade to which a civil servant was promoted had to take effect from the date of regular appointment to a post in the grade---Civil servants who were selected for promotion to a higher grade in one batch on their promotion to the higher grade were to retain their inter se seniority as in the lower grade---No provisional seniority list could be continued for more than a period of six months during which objections might be invited, decided and provisional seniority list was to be made final---Supreme Court showed grave concern over the continuation of provisional seniority list for years together which had resulted in endless litigation which was an extra burden on the meagre financial resources of Government servants on the one hand and wastage of precious time of the Courts on the other, besides its detrimental effect on the administration as a whole.

Abdul Rahim Kazi, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioner (in C.P. No.462-K of 1999).

Mian Khan Malik, Additional A.-G. for Respondent No. 1. (in C.P. No.462-K of 1999).

Haider Ali Pirzada, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record (absent) for Respondent No.3 (in C.P. No.462-K of 1999).

Mian Khan Malik, Additional A.-G. and A.A. Siddiqui, Advocate­-on-Record (absent) for Petitioner (in C.P. No.484-K of 1999)

Rao Shakir Ali Naqashbandi, Advocate Supreme Court for Respondent (in C.P. No.484-K of 1999).

Date of hearing: 27th July, 2000.

2001 SCMR 359

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Messrs NAQVI LAW ASSOCIATES---Petitioner

versus

ABDUL RAUF and others---Respondents

Civil Petitions Nos.202-K to 209-K of 2000, decided on 18th August, 2000.

(On Appeal from the judgment of the High Court of Sindh, dated 15-12-1999 passed in F.R.As. Nos. 252, 253, 254, 255, 256, 257, 258 and 259 of 1999).

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

----S. 15---Landlord and tenant, relationship of---Such relationship was denied by the tenant---Validity---Where title of the landlord had not been successfully disturbed and a valid registered sale-deed had been produced by the landlord, landlord was rightly found to be owner by the Courts below.

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

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Default in payment of monthly rent---Subletting the premises by tenant---Concurrent findings of fact by the Courts below----Subletting of premises was admitted by the tenant and default in payment of monthly rent was also established---Rent Controller ordered for the eviction of the tenant and such order was upheld by High Court---Validity---Concurrent findings of fact recorded by the Courts below wherein contentions of the petitioners had rightly been repelled were valid---No illegality or any material irregularity was found in the orders of the Courts below---Leave to appeal was refused by Supreme Court.

Najmuddin v. Zamir Ahmad PLD 1982 Kar. 188; Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Mst. Hajra Bai v. Allah Din 1993 CLC 1693; Hussain Khan and Sons v. Ibrahimji Sulemanjee Mithaiwala 1995 CLC 446 and Jan Muhammad v. A. Razzaq 1999 SCMR 2924 distinguished.

Muhammad Saeed v. Akhtar Ahmed 1999 MLD 1945; Hayatullah v. Abdul Rasheed 2000 SCMR 845; Tahir Hussain Malik v. Najma Rafi 1995 SCMR 1407; Pervaiz Akhtar v. Dr. Muhammad Ahsan PLD 1988 SC 734 and Muhammad Ishaque v. Khursheed Alam PLD 1988 SC 353 ref.

Muhammad Sharif, Advocate Supreme Court for Petitioners.

K.A. Wahab, Advocate- on-Record for Respondents.

Date of hearing: 18th August, 2000.

2001 SCMR 363

[Supreme Court of Pakistan]

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

Haji ALLAH BAKHSH---Appellant

versus

ABDULLAH KHAN and 4 others---Respondents

Civil Appeal No. 84-Q of 1997, decided on 20th September, 2000.

(On Appeal from the judgment, dated 2-7-1992 of the High Court of Balochistan in C.R. No.84 of 1992).

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 52--Balochistan Tenancy Act (XXIV of 1978) Ss. 8 & 99--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether the two Courts below and the High Court while dealing with the case had wrongly interpreted the entries in Column No.3 of Register Haqdaran to hold that the appellant was not co­sharer of the land; whether the relevant entry recorded in the Revenue Record implied that as a co-sharer of the land with the respondent, the appellant was also mortgagee in possession thereof; and whether the appellant was not "Lath Band Bazgar" under the respondent and he would be deemed to be co-sharer in the property.

(b) Baluchistan Tenancy Act (XXIV of 1978)----

----Ss. 8 & 99---West Pakistan Land Revenue Act (XVII of 1968). S. 52--­Specific Relief Act (I of 1877), S. 42---Suit for declaration---Concurrent findings of fact by the Courts below---Assailing entries of first ever Settlement Record of a Revenue Estate---Plaintiff claimed himself to be Lath Band Bazgar of the disputed land but such entry did not appear in the first Settlement Record of the Revenue Estate---Effect---Presumption of truth of the highest degree was attached to the entries of the first ever Settlement Record of a Revenue Estate---Extraordinary strong evidence was required in order to dislodge such presumption---Plaintiff had been unable to prove himself to be Lath Band Bazgar of the disputed land and the entries of the Settlement Record were correct and legally not amenable to any exception--­Suit for declaration was rightly dismissed by the Trial Court---Supreme Court concurred with the findings of the two Courts below which had been duly affirmed by the High Court and found that the disputed entries were quite valid.

Tahir Muhammad Khan, Advocate Supreme Court for Appellant.

M. W. N. Kohli, Advocate-on-Record for Respondents Nos. l and 2.

Official Respondents Nos. 3 to 5: Ex parte.

Date of hearing: 20th September, 2000.

2001 S C M R 367

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Qazi Muhammad Farooq and

Abdul Hameed Dogar, JJ

NOOK HASSAN AWAN----Petitioner

versus

MUHAMMAD ASHRAF----Respondent

Civil Review Petition No.72 of 1999 in Civil Petition for Leave to Appeal No. 1184 of 1998, decided on 12th June, 2000.

(On review from the judgment, dated 11-5-1999 of the Supreme Court of Pakistan passed in Civil Petition for Leave to Appeal No.1184 of 1998).

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

---Art. 188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Principles governing review of Supreme Court judgment detailed.

Following are the principles governing the review of Supreme Court judgment:--

(i) That every judgment pronounced by the Supreme Court is presumed to be a considered solemn, and final decision on all points arising out of the case;

(ii) that if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;

(iii) that the fact the view canvassed in the review petition is more reasonable than the view which found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;

(iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;

(v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;

(vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case, a review petition would lie;

(vii) that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, -but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;

(viii) that the constitution does not place any restriction on the power of the Supreme Court to review does not place any restriction on the power of review its earlier decisions or even to, depart from them nor the doctrine of stare decisis will come in its way so long as review is warranted in view of Significant impact on the fundamental rights of citizens or in the interest of public good;

(ix) that the Coin ,is competent to review its judgment/order suo motu without any formal application;

(x) that under the Supreme Court Rules, Court sits in division and not as a whole. Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches irrespective of their size, are decisions of the Court having the same binding nature.

Abdul Ghaffar, Abdur Rehman and others v. Asghar Ali and others PLD 1998 SC 363 ref.

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Condition precedent for grant of review---Grounds of were not spelt out in the course of arguments---Validity---Grounds of review were snot spelt out in the review petition clearly and were formulated during the course of argument---Such omission could not be overlooked or condoned as the same lead changed the tenor of the review petition and had transformed the petition fact was apparent on to a petition for leave to appeal---No error of law or e face of the judgment which was a condition precedent for grant of important aspect of the review---Court had neither failed to consider some important aspects nor overlooked something obvious---Petition for review being hit by principles laid down by Supreme Court in case of Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363, petition was dismissed.

Muhammad Guy v, Mead Afzal 1999 SCMR 724; Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883; Abdul Ghaffar­ Abdur Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Justice Sajjad Ali Shah Malik Asad Ali and 5 others 1999 SCMR 640; Federation of Pakistan, through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189: Mian Muhammad Jehangir and others v. Government of Punjab 1999 SCMR 2051 and Muhammad Ramzan v. Lal Khan 1995 SCMR1510 ref.

Muhammad Ghani, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for petitioner.

Abdul Karim Kundi, Advocate Supreme Court and Imtiaz M. Khan, Advocate-on-Record for Respondent.

Date of hearing: 7th June, 2000.

2001 S C M R 374

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Rashid Aziz Khan and

Iftikhar Muhammad Chaudhry, JJ

MUHAMMAD AFAQ---Appellant

versus

THE STATE----Respondent

Criminal Appeal No.324 of 2000, decided on 16th October, 2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 18th of July, 2000 passed in Criminal Original No.23 of 2000).

Constitution of Pakistan (1973)---

----Arts. 204 & 185(2)(c)---Contempt of Court Act (LXIV of 1976), Ss. 4 & 10---Contempt of Court ---Affixture of the cause list outside the Court-room being a step towards the dispensation of justice, act of the accused in tearing the same into pieces before general public had definitely obstructed not only the process of the Court but also course of justice and constituted gross contempt of Court with a deliberate attempt to undermine its dignity and authority---Manner and the mode in which the accused had assaulted and humiliated a functionary of the High Court (Reader) and showed his disrespectful attitude by tearing the cause list of the Court in view of the public within the Court premises was not only sensational but alarming as well---Accused, therefore, legitimately deserved to be tackled with iron hands as none could be allowed to make a mockery of the system of the administration of justice in such-like fashion---Impugned judgment passed by High Court convicting and sentencing the accused for contempt of Court was absolutely in accord with the settled principles of the dispensation of safe administration of justice and was not at all open to any exception.

Ch. Naseer Ahmad, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Appellant.

Advocate-General, Punjab for the State.

Date of hearing: 16th October, 2000.

2001 S C M R 377

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Hamid Ali Mirza and

Tanvir Ahmad Khan, JJ

FEDERATION OF PAKISTAN and another----Appellants

versus

MUHAMMAD RAFEEQ----Respondent

Civil Appeal No.47 of 1997, decided on 12th October, 2000.

(On appeal from the order, dated 30-1-1996 of the Lahore High Court, Lahore on Civil Miscellaneous Nos. l and 2 of 1995 in R.F.A. 56 of 1995).

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

----O. XXVII, R.8-A & O. XLI, Rr. 5 & 6---Stay of execution of money decree---Appeal by Government or public servant in its official capacity--­Furnishing of security for grant of stay---Where appeal is filed by Government or any public officer, there cannot be automatic grant of stay of execution of decree---If the appellant is Government or public servant and a convincing ground is made out, stay of execution can be ordered without furnishing of security.

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

----O. XLI, R. 5---Stay of execution of decree---Failure to show sufficient cause---High Court suspended execution of decree passed against the appellants subject to deposit of decretal amount by them---Validity---Where High Court was satisfied that the appellants had not been able to show sufficient cause to stay execution and further they would not sustain substantial loss within the meaning of O. XLI, R. 5, C.P.C., if the stay of execution was not granted its order refusing stay was just, fair and in proper exercise of jurisdiction.

Shafsal Enterprizes, Government Contractors v. Province of Punjab 1995 SCMR 708; Bundiai Bus Services v. Sanjeeda Afzal 1975 SCMR 203; Banaris Khan v. Central Government 1986 SCMR 1805; Sadiq Sayeed Khan v. Central Government 1986 SCMR 1147; Province of Punjab v. Muhammad Jamil PLD 1992 Lah. 300 and Government of Sindh v. Suresh PLD 1997 Kar. 351 ref.

Jehangir A. Jhoja, Advocate Supreme Court for Appellants.

Mian Nisar Ahmed, Advocate Supreme Court for Respondent.

Date of hearing: 12th October, 2000.

2001 S C M R 380

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

THE STATE----Petitioner

versus

JAHANGIR AKHTER AWAN and others----Respondents

Civil Petition No.737-K of 1999, decided on 24th August, 2000

(On appeal from the judgment of the High Court of Sindh, dated 21-10-1999 passed in C.P. No.D-991 of 1999).

Anti-Terrorism Act (XXVII of 1997)---

----Ss. 6(b) & 23---Constitution of Pakistan (1973), Art. 185 (3)---Transfer of case from Anti-Terrorism Court---Public servant was brutally murdered--­Accused persons had not approached Anti-Terrorism Court for transfer of the case under S. 23 of Anti-Terrorism Act, 1997 and got the same transferred by High Court, in Constitutional petition---Manner in which the deceased was done to death showed that it was an act of terrorism and the same should have been allowed to be proceeded before Anti-Terrorism Court as required under S. 38 of Anti-Terrorism Act, 1997---Leave to appeal was granted by Supreme Court to consider; whether the judgment of High Court was sustainable in law, whether notification regarding trial of the case by Anti-­Terrorism Court could be impugned in Constitutional petition before High Court under Art. 199 of the Constitution; whether a criminal case could be transferred to another Court by the High Court under its Constitutional jurisdiction; and whether writ was competent to stay the transfer of a criminal case from one jurisdiction to another in exercise of jurisdiction under Art. 199 of the Constitution.

Ainuddin, A.A.-G., Sindh for Petitioner.

Gul Zaman Khan, Advocate Supreme Court for Respondents Nos. 1 to 3.

S. Zaki Muhammad, D.A.-G. for Respondents Nos.4 and 6 (or Court's Notice).

Date of hearing: 24th August, 2000.

2001 S C M R 383

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

NAILA TRANUM JAMSHED---Petitioner

versus

Haji MUHAMMAD ABBAS and 4 others---Respondents

Criminal Petition No. 178 of 2000, decided on 28th September, 2000.

(On Appeal from the judgment, dated 21-6-2000 of the Peshawar High Court, D. I. Khan Bench, in Cr. M/Q No. 15 of 1999).

Criminal Procedure Code (V of 1898)---

----Ss. 88(6-A) & 561-A---Attachment proceedings, objection to---Invoking of jurisdiction of High Court under S. 561-A, Cr.P.C.---Locus standi--­Interim attachment orders were passed by Sub-Divisional Magistrate with the object of compelling the attendance of proclaimed offender---Appellant, the wife of the proclaimed offender filed objections under S. 88(6-A), Cr.P.C. against the interim order---Sub-Divisional Magistrate after inquiry recalled the interim orders and the objections were allowed ---Father of the deceased challenged the said order by invoking the inherent jurisdiction of High Court and the case was remanded to the Sub-Divisional Magistrate by High Court in exercise of its jurisdiction under S. 561-A, Cr.P.C.---Validity---Father of the deceased had no locus standi to challenge the recalling order by S.D.M. as he had no interest or right in the attached property---Attachment was a matter between the State and the absconding accused and the person having any right or interest in the attached property---Where after inquiring into the objections the Sub-Divisional Magistrate prima facie found that the interim orders were not sustainable in law, he recalled the same---Recalling order was neither illegal nor invalid nor without jurisdiction or abuse of process of law---Such order could not have been challenged under S. 561-A, Cr.P.C: before the High Court by the father of the deceased who had no locus standi to challenge the same---Exercise of powers under S. 561-A, Cr.P.C. by the Judge ,in Chambers was not, justifiable under the law--­Supreme Court converted the petition for leave to appeal into appeal and order of High Court remanding the case to Sub-Divisional Magistrate was set aside.

Syed Zakaullah Shah v. Mst. Zohra and 3 others 1992 PCr.LJ 360; Habibullah Jan v. M. Hassan Khan 1991 MLD 25 and Sonaullah Fakir v. Alam Fakir and others 1968 SCMR 311(2); Hirschorn v. Evans Barclays Bank Limited 2 KB 801 (CA 1938) and Halsbury's Laws of England, Fourth Edn., Vo1.3 ref.

Abdul Karim Kundi, Advocate Supreme Court for Petitioner.

Muhammad Munir Peracha, Advocate Supreme Court for Respondent No. 1.

Khawaja M. Farooq, Advocate Supreme Court for Respondents Nos.2 and 3.

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

Date of hearing: 28th September, 2000.

2001 S C M R 387

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Nazim Hussain Siddiqui and Javed Iqbal, JJ

WARIS KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 249 of 1999, decided on 11th October, 2000.

(On Appeal from the judgment of the High Court of Balochistan, Quetta, passed in Crl. A. No.67 of 1997 and M.R. No.4 of 1997).

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

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Sentence---Leave to appeal was granted only on the question of sentence.

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

----S. 302---Motive---Sentence---Weakenss or absence of motive or failure to prove the same---Effect---Where the eye-witness account was worthy of credence, unimpeachable, confidence-inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would constitute mitigating circumstances.

1999 SCMR 637; 1968 SCMR 1225; 1996 SCMR 1887 and 1999 SCMR 1138 distinguished.

(1867) 7 W.R. (Cr.) 60; 1932) 11 Pat. 280; 1929 31 Cr.LJ 765; 30 PLR 749; (1924) 26 Cr.LJ 774; AIR 1925 328; (1924) 41 CU 35; AIR 1925 Cal. 525; (1930) 8 OWN 107; AIR 1931 Qudh. 119; (1926) 7 Lah. 84, 89; Tun Khing v. King, 40 Cr.LJ 49: AIR 1938 Rang. 331; Atley v. State AIR 1955 SC 807; Talib Hussain v. State 1995 SCMR 1776; State/Government of Sindh.v. Sobharo 1993 SCMR 585; Mushtaq Ahmad v. Muhammad Siddique PLD 1975 SC 160; Manzoor Ahmad v. The State PLD 1983 SC 197; 1982 SCMR 781; 1981 SCMR 54; 1979 SCMR 214; PLD 1978 SC 462; 1977 SCMR .175; PLD 1975 SC 227; PLD 1974 SC 87; PLD 1969 SC 127; 1968 SCMR 502; Sardar Ali v. State 1969 SCMR 542; Ahmad Nisar v. State 1977 SCMR 175; Abdul Wahab v. State 1999 SCMR 1668; Wali Muhammad v. Bajoo 1978 SCMR 257; Sher Ali v. State 1980 SCMR 291; Ghulam Nazir v. State 1981 SCMR 805; Sher Daraz Khan v. State 1983 SCMR 266; Arif v. State 1984 SCMR 124; Mati-ur-Rehman v. State 1985 SCMR 489; Ahmad Khan v. State 1985 SCMR 975; Faqir Masih v. Mubarik Masih 1987 SCMR 697; Nabi Bakhsh v. State 1988 SCMR 213; Abbas Hussain v. State 1992 SCMR 320; Roheeda v. Khan Bahadur 1992 SCMR 1036; Muhammad Ishaque Khan v. State PLD 1994 SC 259; Zulfiqar v. State 1995 SCMR 1668; Intizar Hussain v. Muhammad Sarwar 1996 SCMR 872; Ghuncha Gul v. State 1971 SCMR 368; Muhammad Nazir v. State 1985 SCMR 507; Fazal Ghafoor v. State 1987 SCMR 136; Muhammad Mushtaq v. State 1973 SCMR 219; Ali Hussain v. Mukhtar 1983 SCMR 806; Nawaz Khan v. Ghulam Shabbir 1995 SCMR 1007; Talib Hussain v: State 1995 SCMR 1776; Muhammad Iqbal and another v. The State 1984 SCMR 1184; Muzammal Din and another v. Nur Hussain and others 1985 SCMR 495; Abdul Aziz v. The State and others 1994 SCMR 35; Muhammad Siddique v. The State 1994 SCMR 88 ; Muhammad Bashir v. Khalid Mehmood and another 1994 SCMR 1096; Muhammad Din alias Manni and another v. The State 1994 SCMR 1847 and Noor Muhammad v. The State 1999 SCMR 2722 rel.

Raja Muhammad Afsar, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for the State.

Date of hearing: 11th October, 2000.

2001 S C M R 396

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh

and Nazim Hussain Siddiqui, JJ

PROVINCE OF PUNJAB through Secretary Industries, Government of

the Punjab, Civil Secretariat, Lahore---Appellant

versus

BUREWALA TEXTILE MILLS LIMITED---Respondent

Civil Appeal No. 826 of 1996, decided on 26th September, 2000.

(On Appeal from the order, dated 28-11-1995 passed by the Lahore High Court, Lahore in E.F.A: No.42 of 1988).

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

----Ss. 34(2) & 47---Executing Court---Modification of decree---Dispute was with regard to interest for post-award period---Such claim was turned down and no appeal was preferred against that order---Executing Court during execution of decree allowed the interest for post-award period ---Validity--­Executing Court by allowing such interest had modified/altered the decree without any legal justification---Where decree was silent with respect to payment of further interest under the provision of S.34(2), C.P.C. the same could be deemed to have been refused---Order of High Court, whereby the order passed by the Executing Court was set aside, was correct and was not open to any exception.

Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 ref.

Dr. Tariq Mehmood Khokhar, Additional Advocate-General for Appellant.

Iftikhar Ahemd Dar, Advocate Supreme Court for Respondent.

Date of hearing: 26th September, 2000.

2001 S C M R 398

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Hamid Ali Mirza, JJ

GHAFOOR BUKHSH---Appellant

versus

HAJI MUHAMMAD SULTAN and others---Respondents

Civil Appeal No.978, decided on 12th June, 2000.

(On appeal against from the judgment dated 8-6-1999 of the Lahore High Court in Civil Revision No. 1166 of 1999).

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

----O.VII, R.11---Plaint, rejection of---Transfer of suit property by Settlement Authorities was assailed by the plaintiff in Constitutional petition---High Court, without deciding the pleas raised by the parties, dismissed the petition on a legal ground, leaving the parties to approach Civil Court for decision in the matter---Plaintiff filed civil suit and the defendant resisted the same by filing application under O.VII, R.11, C.P.C.---Trial Court dismissed the application but the High Court in exercise of its revisional jurisdiction allowed the revision filed by the defendant consequently the suit was rejected---Review was allowed by the High Court on the ground that firstly the Constitutional petition had already been dismissed by the High Court and secondly that the suit was barred by time--­Validity---Mere fact that the evacuee laws were repealed or that High Court had dismissed the Constitutional petition on legal ground without finally deciding the pleas raised before it leaving the same open to be decided by Civil Court was no ground for rejection of plaint as the same was not envisaged under O.VII, R.11, C.P.C.---Where the High Court did not mention as to which Article of the Limitation Act, 1908 was attracted so as to hold the suit of the plaintiff to be barred by time, the suit could not be held to be barred by limitation---Judgment of High Court was set aside by Supreme Court.

(b) Fraud-----

----Fraud or misrepresentation---Such question, unless specifically barred under the law, can only be gone into by a Civil Court of general jurisdiction.

Sultan Hasan Khan v. Nasim Jehan 1994 SCMR 150 ref.

Kh. Muhammad Farooq, Advocate Supreme Court for Appellant.

Malik M. Nawaz, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 30th May, 2000.

2001 S C M R 405

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

ALTAF HUSSAIN and 2 others---Petitioners

versus

MUHAMAMD NAWAZ and 2 others---Respondents

Civil Petition for Leave to Appeal No. 1102 of 1999, decided on 4th October, 2000.

(On Appeal from the judgment, dated 23-12-1998 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in R.S.A. No.87 of 1977).

(a) Limitation Act (IX of 1908)---

----S. 5---Delay, condonation of---Counsel and client, relationship of--­Responsibility of litigant/client---Judgment was reserved by High Court--­Petition for leave to appeal was filed with a delay of 129 days---Reason for such delay was stated to be belated knowledge about decision of High Court---Validity---Where the judgment was reserved, the responsibility of litigant did not come to an end, as the litigant was required to pursue his case with reasonable diligence and care---Litigant was supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case---Plea set up for the delay in filing appeal did not constitute a valid ground for condonation of delay which was refused by the Supreme Court.

(b) Punjab Pre-emption Act (I of 1913)---

----S. 21---Civil Procedure Code (V of 1908), Ss. 47, 144 & 157--­Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit---Restitution of possession---Failure to deposit decretal amount as directed by the Trial Court ---Pre-emption suit was decreed in favour of the pre-emptor by the Trial Court directing him to deposit sum of Rs.11,830 including mortgage charge---Lower Appellate Court enhanced the pre-emption amount , to Rs.13,520---Three out of four mortgagees who were the pre-emptors, on their own, deducted the mortgage amount and deposited the balance amount of Rs.8,567---Vendees filed application for restitution of possession on the ground that the pre-emptors had failed to deposit the full decretal amount as the pre-emptors could not deduct the mortgage amount on their own---High Court in second appeal allowed the application of the vendees---Validity--­Order of the Court was interpreted by the pre-emptors in their own wisdom and was modified unilaterally by them which was not permissible---Where a party considered an order or a judgment passed in a case to be vague or erroneous, the proper course of action for him was to file a review petition before the same Court which passed the order/judgment or to take the matter before Appellate Court in appeal or revision, as the case might be---Party could not assume the role of a Court and if he had chosen to do so, he must himself suffer the unsavoury consequences.

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

Sh. Zamir Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate- n-Record for Respondents.

Date of hearing: 28th July, 2000.

2001 S C M R 410

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Nazim Hussain Siddiqui and Javed Iqbal, JJ

Messrs TRI-STAR POLYESTER LIMITED and another---Appellants

versus

CITI BANK---Respondent

Civil Appeal No. 347 of 1999, decided on 24th August, 2000.

(On Appeal from the order, dated 7-9-1998 passed by the High Court of Sindh at. Karachi in Suit No.486 of 1998/C.M.A. No.5595 of 1998/C.M.A. No.2797 of 1998).

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 29---Limiatation Act (IX of 1908), S. 5---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider, whether S. 5, Limitation Act, 1908, was applicable in view of bar contained in S. 29 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997; whether High Court was not obliged to dismiss the application for leave to defend having held that there was no sufficient case; whether the leave to defend had been granted and the delay condoned on justifiable grounds and whether the petition for leave to appeal was not maintainable having arisen out of an interim order.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----Ss. 2(f), 18(6) & 21(5)---Constitution of Pakistan (1973), Art. 185(3)--­Appeal against interlocutory order---Maintainability---High Court acting as Banking Court under the provision of S.2(f) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was similar to a Special Court---Any such order passed by High Court under the Act was in the capacity of a Banking Court and not the High Court in its ordinary jurisdiction---Where suit was being tried under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, no appeal was competent against interlocutory order---Subject-matter of the petition for leave to appeal being interlocutory order not falling in the categories of orders under S. 18(6) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 petition for leave to appeal was not maintainable.

Allied Bank of Pakistan v. Messrs Tahir Traders and 8 others PLD 1986 Kar. 369 and Union Bank of Middle East v. Messrs Zubia PLD 1987 Kar. 206 fol.

Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88 and Mohtarma Benazir Bhutto, Leader of the Opposition, Bilawal House, Clifton, Karachi and another v. The State through Chief Ehtesab Commissioner, Islamabad 1999 SCMR 759 distinguished.

Abdul Hafeez Prizada, Senior Advocate Supreme Court and M. Afzal Siddiqui, Advocate Supreme Court for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondent.

Date of hearing: 6th June, 2000.

2001 S C M R 416

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Javed Iqbal and Hamid Ali Mirza, JJ

EHSAN ELLAHI and others---Petitioners

versus

MUHAMMAD ARIF and others---Respondents

Criminal Petitions Nos. 110, 111 and 144 of 2000, decided on 25th September, 2000.

(On Appeal from the judgment, dated 17-4-2000 of the Lahore High Court in Criminal Appeal No.201 of 1995 and 21 of 1996 and Murder Reference No.279 of 1995).

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

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal ---Lalkara---Attempt to get back pistol which was snatched by the complainant party---Role attributed to one of the accused persons was of raising Lalkara while the other was alleged to have made an attempt to get back the pistol which had been snatched by the complainant party from him---Both the Courts below had acquitted the accused persons by giving them benefit of doubt---Validity---Where no infirmity was pointed out, Supreme Court refused to interfere with the well-reasoned judgment of acquittal of the accused persons passed by the Trial Court and affirmed by the High Court---Leave to appeal was refused.

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

----S. 382-B---Benefit of S. 382-B, Cr.P.C., grant of---Guiding principles.

Following are guiding principles for the application of the provisions of section 382-B, Cr.P.C:

(i) That section 382-B, Cr.P.C. is attracted when a Court decides to pass a sentence of imprisonment either in the trial or appellate or revisional proceedings against an accused for the offence charged with and in case the sentence is already passed, there would be no legal bar for the appellate or revisional Court to the grant of benefit of the said provisions to convict who would be entitled to agitate said plea before the Appellate Court in case the trial Court had failed to consider the said provisions of law while imposing the sentence or was wrongly denied the benefit of the same and the Appellate Court would be bound to examine the above question and to rectify the error/mistake, if any; committed by the Court below, (ii) that in case the Appellate Court substitutes death sentence to that of imprisonment for life or rigorous imprisonment for a certain period, it would be obligatory on its part to take into consideration the provisions of section 382-B, Cr. P. C.

(iii) that the Court has discretion not to grant the benefit of section 382-B, Cr.P.C. to a convict but the said discretion is to be exercised judiciously on sound judicial principles, and

(iv) that the provisions of section 382-B, Cr.P.C. are mandatory and in the absence of express manifestation of the application of the mind by the Court that it has addressed itself to the above provisions at the time of imposing the sentence on the convict concerned, no presumption can be raised in favour of the Court having adverted to the same.

Javed Iqbal v. State 1998 SCMR 1539; Bashir v. State- 1998 SCMR 1794; Mukhtiar-ud-Din v. State 1997 SCMR 55; Muhammad Rafiq v. State 1995 SCMR 1525 and Liaqat Ali v. State PLD 1995 SC 485 rel.

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

----S. 382-B---Grant of benefit of S. 382-B, Cr.P.C.---Discretionary relief--­Exercise of discretion by Court---Essentials---Court is bound to take into consideration the question whether such benefit is to be granted or not but it is not mandatory to grant the same---Court has discretion to decline the same---Discretion is not to be exercised arbitrarily or capriciously but should be exercised judiciously on sound judicial principles reviewable by the higher forum in appeal or revision, prompted with the desire to do complete justice between the parties keeping in view rule of consistency and reasonableness.

Mukhtiar-ud-Din v. State 1997 SCMR 55 rel.

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

----S. 302---Criminal Procedure Code (V of 1898). S. 382-B---Grant of benefit of S. 382-B, Cr.P.C.---Entitlement of accused---Principle---Accused armed with pistol waylaid the complainant party and committed murder--­Trial Court awarded death penalty but High Court taking a lenient view, converted death penalty into life imprisonment ---Where conviction was not challenged before the High Court but sentence was urged to be modified, accused would not be entitled to the benefit of S. 382-B, Cr.P.C.---Supreme Court declined to extend benefit of S. 382-B, Cr.P.C. to the accused.

Muhammad Asif v. State 1999 SCMR 2489 and Ghulam Murtaza v. State PLD 1998 SC 152 ref.

Sardar Muhammad Ishaq Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in Cr.Ps. Nos. 110 and 111 of 2000).

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in Cr.P. No. 144 of 2000).

Nemo for Respondents (in all Petitions).

Date of hearing: 25th September, 2000.

2001 S C M R 424

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Iftikhar Muhammad Chaudhry

and Abdul Hameed Dogar, JJ

IMRAN ASHRAF and 7 others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 36 to 43 of 2000. decided on 16th October, 2000.

(On appeal from the judgment dated 1-3-1999 of the Lahore High Court, Multan Bench, Mutlan passed in Criminal Appeals Nos. 57 to 64 of 1998).

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to accused to consider the question of jurisdiction of Special Court constituted under the Anti-Terrorism Act, 1997 to try the case and the points as to whether the principles of safe administration of justice in the criminal cases had been followed in the case while appraising the prosecution evidence as also to find out if the view which found favour with the High Court was in consonance with law as enunciated by Supreme Court in various cases from time to time.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Reappraisal of evidence---Principle---Basic principle of reappraisal of evidence in criminal cases is that if a witness is trustworthy and reliable then conviction can safely be based on his evidence---In case such witness is unreliable his evidence cannot be utilized for the passing of conviction against the accused---If, however, the witness has given partially reliable and partially unreliable evidence then applying the device of sifting the grain from chaff and seeking independent corroboration from other reliable evidence on material particulars, conviction can be based on it.

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

----S. 154---Police Rules, 1934, R. 24.5(c)---Registration of First Information Report in cognizable cases---Exercise of powers by police--­Scope---Principles---Delay in registration of F. I. R. ---Adverse effects section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously. Any slackness or lukewarm attitude by the registering authority of F.I.R. in fact intends to help the accused involved in the commission of the offence. Thus it is advisable that the provisions of section 154, Cr.P.C. read with Rule 24.5(c) of the Police Rules, 1934 be adhered to strictly. There should not be any negligence in recording the F.I.R. and supplying copies to concerned quarters because departure from he mandatory provision of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in F.I.R.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7 ------ site plan---Evidentiary value---Site plan loses its evidentiary value if it is not prepared on the pointation of a witness.

Gul Mir v. The State PLD 1980 SC 185 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Unexplained delay in recording statement of eye-witness---Effect---Where no plausible explanation is offered by the prosecution for not recording the statement of eye-witness immediately after the registration of the case, then the evidence of such witness becomes incredible.

1993 SCMR 550 and 1995 SCMR 127 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--- Appreciation of evidence---Principle---Court in criminal administration of justice is duty bound to evaluate the evidence available on record as a whole notwithstanding the fact whether the benefit of the same will go to defence instead of prosecution---Court seized of the matter must consider the' cumulative effect of total evidence while assessing its evidentiary value and not to consider it in isolation.

Asadullah v. Muhammad Ali PLD 1971 SC 541 and Mst. Razia Begum v. Hijrayat Ali and 3 others PLD 1976 SC 44 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Chance witness---Evidentiary value--Evidence of a chance witness in a criminal case can be accepted if he successfully establishes his presence at the place of incident, otherwise Court has to find out strong corroboration to his statement in order to make it admissible.

Javed Ahmad alias Jaida v. The State and another 1978 SCMR 114 and Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

(h) Criminal trial---

----Witness---Crime on a public thoroughfare---Evidence of a passerby--­Admissibility and worth---Principles.

When a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation for their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony.

Javed Ahmad alias Jaida v. The State and another 1978 SCMR 114 and Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

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

----Art. 140---Penal Code (XLV of 1860), Ss. 302, 148 & 382---Evidence--­Contradictions between Police statement and Court statement are required to be proved under the law.

(j) Administration of justice---

---- Judicial functionaries---Conduct of judicial proceedings---Duty and responsibility ---Judicial functionaries bestowed with the powers to exercise the jurisdiction conferred upon them are legally bound to decide the cases correctly and no wrong decision on law is expected from them---Any exercise of jurisdiction in violation, of law for extraneous considerations would make the concerned judicial officer liable for action under the relevant law.

PLD 1987 SC 42 rel.

(k) Administration of justice--

---- No party should suffer on account of wrongs committed by judicial functionaries.

State v. Asif Adil 1997 SCMR 209 ref.

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

----S. 540---Power of Court to summon any person as witness and examine--­Scope---Court, in exercise of powers under 8,540, Cr.P.C. can summon any witness at any stage of the trial of his evidence which appears to be essential for the just decision of the case.

Muhammad Azam v. Muhammad Iqba1 PLD 1984 SC 82; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusvf PLD 1963 SC 51; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Rashid Ahmad v. The State PLD 1971 SC 709; Bashir Ahmw v. The State and another 1975 SCMR 171; Yasin alias Cheema and another v. The State 1980 SCMR 575; Rameshwar Dayal and others v. The State of U.P. AIR 1978 SC 1558; The Crown v. Rafiq Ahmad and another PLD 1955 Bal. 12; Abdul Latif and others v. State of Uttar Pradesh AIR 1978 5C 472; Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178 and Raghunandan v. State of U.P. AIR 1974 SC 463 ref.

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

----S. 540---Power of Court to summon material witness etc. ---Jurisdiction under S. 540, Cr.P.C. is always subject to the satisfaction of the Court that the evidence intended to be produced on record would be a stepping stone necessary for just decision of the case and only on such satisfaction permission can be accorded.

Mst. Amina Bibi v. Kashif-ur-Rehman 1995 PCr.LJ 730; PLD 1987 SC 427; Muhammad Azam v. Muhammad I4bal PLD 1984 SC 82; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Rashid Ahmad v. The State PLD 1971 SC 709; Bashir Ahmad v. The State and another 1975 SCMR 171; Yasin alias Cheema and anotllef v. The State 1980 SCMR 575; Rameshwar Dayal and others v. The State of U.P. AIR 1978 SC 1558; The Crown v. Rafiq Ahmad and another PLI) 1955 Bal. 12; Abdul Latif and others v. The State of Uttar Pradesh AIR 1978 SC 472; Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 5C 178 and Raghunandan v. State of U.P. AIR 1974 SC 463 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7-- Appreciation of evidence---Corroboration---One piece of tainted evidence cannot corroborate another piece of tainted evidence.

Ali Akhtar Hussain v. The State 1972 SCMR 40 and Muhammad Ilyas and another v. The State 1993 SCMR 1602 ref.

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

----Art. 22---Identification parade---Steps to ensure its fairness---In order to ensure that the identification parade was conducted fairly and properly it was incumbent upon the prosecution to adopt such measures so as to eliminate the possibility of identifying witnesses to see the accused after the commission of the offence till the identification parade is held immediately after the arrest of the accused persons as early as possible.

Ashraf and another v. The State AIR 1961 All. 153 and Lal Pasand v. The State PLD 1981 SC 142 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Corroboration---Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony---Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion.

Asadullah v. Muhammad Ali PLD 1971 SC 541 ref.

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

----Ss. 302/149, 148, 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Corroboration---Ocular testimony suffering from material discrepancies and having lost its intrinsic value, cannot be corroborated by any corroborative evidence like medical evidence, recovery evidence etc.

Dhunda v. The Crown ILR 16 Lah. 995 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Medical evidence ---Post-mortem report---Evidentiary value of---Nature--­Corroboration to other evidence ---Extent---Post-mortem report cannot furnish corroboration to the ocular testimony and other evidence brought by prosecution on record in view of principle of law that such evidence being supporting in its nature can only be helpful to prosecution if it succeeds in establishing its case on basis of direct ocular or circumstantial evidence against the accused.

Muhammad Hanif v. The State PLD 1993 SC 895 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Circumstantial evidence---Circumstantial incriminating evidence must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis except that of his guilt.

Mst. Sairan alias Saleema v. The State PLD 1970 SC 56 ref.

(t) Criminal trial---

----Technicalities---Technicalities should be overlooked without causing any miscarriage of justices.

The State v. Farman Hussain PLD 1995 SC. 1 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Circumstantial evidence---Approach of the Court---Technical lapses--­Effect---Treatment and approach by Court---Principles stated.

The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided the same have not prejudiced the accused in the fair trial.

Khurshid v. The State PLD 1996 SC 305 rel.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Benefit of doubt---Prosecution is bound to prove the case against the accused beyond doubt and such burden does not shift from prosecution to accused even if he takes up any particular plea and fails to substantiate it and if there is any room for benefit of doubt in the prosecution case, it will go to accused and not to prosecution.

Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Luqman v. The State PLD 1970 SC 10 and Abdul Haque v. The State PLD 1996 SC 1 ref.

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

----Ss. 535, 537, 227 & 374---Alteration of charge by Appellate Court--­Competency--- Trial Court is competent to alter the charge at any stage in exercise of its inherent jurisdiction conferred on it under S.535 read with S.537, Cr.P.C:---Appellate Court also enjoys the same powers particularly in reference cases under S.374, Cr.P.C. for confirmation or otherwise of death sentence under S.302, P.P.C.

PLD 1957 SC (Ind.) 381 ref.

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

----S. 120-A---Criminal conspiracy---Privacy and secrecy of an agreement, oral or written, to enter into a criminal conspiracy is the essence to establish' that prior to commission of offence two or more persons had entered into a conspiracy for committing an unlawful wrong.

AIR 1965 SC 682; PLD 1979 SC 53; 1985 PCr.LJ 2638; 1995 PCr.LJ 1424; 1998 PCr.LJ 1486; 1990-1903 All ER 1; 1998 PCr.LJ 1990; Bayyappanavara Munishwamy and others v. State AIR 1954 Mys. 81 ref.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Principle---Wholly reliable evidence can be accepted without corroboration, unreliable evidence can be brushed aside without any reservations whereas halfly reliable evidence needs strong corroboration for its acceptance.

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

----Ss. 302/149, 148 & 382---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Neither any prejudice had been caused to the accused nor the impugned order passed by the Special Court was without jurisdiction, because the accused had been convicted and sentenced under S.302/149, P.P.C. as well besides under S.7 of the Anti-Terrorism Act, 1997---Prosecution, however, had failed to produce trustworthy, confidence inspiring and consistent evidence against the accused which suffered from material discrepancies, contradictions and omissions and seemed to have been fabricated to prove the prosecution case---Accused on the basis of evidence of such defective quality could not be immured further because they had every right to be dealt with in accordance with law under the Constitution--­Courts below had passed the judgments contrary to the substantive law as well as the precedented law enunciating the principles for appreciation of evidence---Accused were acquitted in circumstances.

PLD 1978 SC 298; PLD 1995 SC 1; PLD 1996 SC 305; PLD 1998 SC 1445; Noora and another v. The State PLD 1973 SC 469; Muhammad Ashraf and another v. The State PLD 1977 SC 538; Muhammad Aslam and another v. The State PLD 1978 SC 298; 1997 SCMR 89; Gul Mir v. The State PLD 1980 SC 185; 1993 SCMR 550; 1995 SCMR 127; Asadullah. v. Muhammad Ali PLD 1971 SC 541; Mst. Razia Begum v. Hijrayat Ali and 3 others PLD 1976 SC 44; Javed Ahmad alias Jaida v. The State and another 1978 SCMR 114; Mst. Amina Bibi v. Kashif-ur-Rehman 1995 PCr.LJ 730; PLD 1987 SC 427; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 82; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Rashid Ahmad v. The State PLD 1971 SC 709; Bashir Ahmad v. The State and another 1975 SCMR 171; Yasin alias Cheema and another v. The State 1980 SCMR 575; Rameshwar Dayal and others v. The State of U.P. AIR 1978 SC 1558; The Crown v. Rafiq Ahmad and another PLD 1955 Bal. 12; Abdul Latif and others v. State of Uttar Pradesh AIR 1978 SC 472; Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178; Raghunandan v. State of U.P. AIR 1974 SC 463; 1994 PCr.LJ 140; Guli Chand and others v. State of Rajasthan AIR 1974 SC 274; Bahal Singh v. State of Haryana AIR 1976 SC 2032; Dayaramsingh v. The State of M.P. 1981 Cr.LJ 530; PLD 1996 SC 97; 1992 SCMR 338; 2000 PCr.LJ 331; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Khadim Hussain v. The State 1985 SCMR 721; Lal Singh v. Crown ILR 51 Lah. 396; Qurban and another v. The State 1994 PCr.LJ 150; 1992 SCMR 338; Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Ali Muhammad and another v. the State 1985 SCMR 1834; Ali Akhtar Hussain v. The State 1972 SCMR 40; Muhammad Ilyas and another v. The State 1993 SCMR 1602; Ashrafi and another v. The State AIR 1961 All. 153; Lal Pasand v. The State PLD 1981 SC 142; Dhunda v. The Crown ILR 16 Lah. 995; Muhammad Hanif v. The State PLD 1993 SC 895; Mst. Sairan alias Saleema v. The State PLD 1970 SC 56; Allah Ditta v. The Crown 1969 SCMR 558; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Luqman v. The State PLD 1970 SC 10; Abdul Haque v. The State PLD 1996 SC 1; PLD 1957 SC (Ind.) 381; AIR 1965 SC 682; PLD 1979 SC 53; 1985 PCr.LJ 2638; 1995 PCr.LJ 1424; 1998 PCr.LJ 1486; 1990-1903 All ER 1 and Bayyappanavara Munishwamy and others v. State AIR 1954 Mys. 81 ref.

Muhammad Naeem Sheikh, Advocate Supreme Court for Appellants.

Maqbool Elahi Malik, A.-G., Punjab, Ms. Yasmin Saigal, Asstt. A.-G., Muhammad Bashir Ch., Asstt. A.-G. and Rao Muhammad Yousuf Khan, Advocate-on-Record for the State.

Dates of hearing: 19th to 22nd and 25th to 29th September, 2000.

2001 SCMR 502

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

Dr. JEHANDAR SHAH---Petitioner

versus

MUHAMMAD ASHRAF and another---Respondents

Criminal Petition for Leave to Appeal No.37-Q of 2000. decided on 15th December, 2000.

(On Appeal from the order, dated 16-10-2000 of the High Court Balochistan, Quetta, passed in Criminal Appeal No.224 of 1999).

Penal Code (XLV of 1860)----

----Ss. 365-A & 302---Criminal Procedure Code (V of 1898), S.243--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to complainant to consider the questions; as to whether after pleading guilty by the accused it was obligatory upon the Trial Court to have issued a separate show-cause notice to him in terms of S. 243, Cr.P.C. calling upon him to explain as to why he should not be convicted for the offences charged against him; whether in view of the judgments reported as 1999 SCMR 1668 and 1999 SCMR 2722, High' Court had not erred in law in awarding lesser punishment to the accused despite concluding that the charge under S. 302, P.P.C. fully stood established against him; whether any mitigating or extenuating circumstances were available in favour of accused to award him lesser punishment by converting death sentence into imprisonment for life; and whether accused had been rightly acquitted of the charge under S. 365-A, P.P.C.

Abdul Wahab v. State 1999 SCMR 1668 and Noor Muhammad v'. State 1999 SCMR 2722 ref.

Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Qadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th December, 2000.

2001 S C M R 505

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Abdul Hameed Dogar and Tanvir Ahmad Khan, JJ

AHMAD HASSAN and another---Petitioners

versus

THE STATE--- Respondent

Criminal Petitions Nos.235-L, 239-L and Jail Petitions Nos. 117 and 118 of 1999, decided on 6th November, 2000.

(On appeal from the judgment 8-5-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeals Nos.(SCT)-7/1999/BWP and SCT-10 of 1999/BWP and M.R. Nos.4 and 3/BWP/1999 respectively).

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art. 37---Constitution of Pakistan (1973), Art. 185(3)---Accused had committed brutal murders of high officials viz. D:I.-G. and A.D.I.-G. in collusion with-each other while acting in a callous manner and they did not deserve any leniency---Strong and independent ocular evidence furnished by three prosecution witnesses was fully established on record---Both the incidents were so connected in time and space that they had constituted one and the same transaction, as such separate confessional statements were not required to have been recorded in each case, particularly when the motive too was common in them---Judicial confessions were not only true and voluntary but they stood corroborated by matching of empty bullets recovered from the dead body of the deceased and from inside the car, their positive Ballistic Expert Report, motive, last seen evidence, extra judicial confession and recoveries and thus the delay in recording the confession was not material---Confessional statements were not shown to have been recorded under any inducement, threat or promise and, thus, they were admissible in evidence in view of Art. 37 of the Qanun-e-Shahadat, 1984---Very basis for registration of prosecution case depended upon the recovery of the dead body from the Diggi, crime empties, crime weapons at the instance of the accused, voluntary surrendering and subsequent arrest of accused and these pieces of evidence being the connecting links were the natural relevant factors for registration of the F.I.R. which could not be said to have been lodged after preliminary investigation, consultation and deliberation---Motive for the occurrence had also been established on the record---No prejudice having been caused, to the accused in the investigation conducted by S.P., C.I.A., as such contention that he merely being complainant in the case was incompetent to be an Investigating Officer, had no force---No infirmity, misreading or non-appraisal of evidence having been pointed out, concurrent findings of the facts by the two Courts below did not call for .any interference by Supreme Court---Leave to appeal was refused accordingly.

Khan Muhammad and others v. The State 1999 SCMR 1818 ref.

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

----Ss. 302/34---Qanun-e-Shahadat (10 of 1984), Art.41---Appreciation of evidence--Delayed confession---Delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record to have been made voluntarily.

Khan Muhammad and others v. The State 1999 SCMR 1818 ref.

M.A. Zafar, Advocate Supreme Court for Petitioners.

Miss Yasmin Siagal, Assistant Advocate-General and Ch. Nazir Ahmad, Advocate Supreme Court for the State.

Dates of hearing: 1st and 6th November, 2000.

2001 S C M R 514

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Deedar Hussain Shah and Hamid Ali Mirza, JJ

ABDUL JABBAR---Petitioner

versus

HAQ NAWAZ alias AKRAM alias AKOO and 3 others---Respondents

Criminal Petition No.430-L of 1999, decided on 14th November, 2000.

(On appeal from the judgment/order, dated 31-5-1999 passed by Lahore High Court, Lahore in Criminal Appeal No.731 of 1993 and Criminal Revision No.25 of 1994 and Murder Reference No.307 of 1993).

Penal Code (XLV of 1860)----

----Ss. 302. & 449---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to complainant to reappraise the evidence in the case which was necessary to arrive at a just conclusion.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record for Respondents.

Date of hearing: 14th November, 2000.

2001 S C M R 516

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

ARSHAD MEHMOOD---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 5 others---Respondents

Civil Petition No.661 of 2000, decided on 11th December, 2000.

(On Appeal from the judgment, dated 15-2-2000 of the Lahore High Court, Rawalpindi Bench passed in W.P. No. 2660 of 1993).

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

----S. 5---Constitution of Pakistan (1973), Arts. 185(3) &199--- Constitutional jurisdiction of High Court--- Maintenance of minor children--­Concurrent findings of fact by the Courts below---Maintenance was fixed as Rs.1,500 by the Family Court but the same was reduced by the Lower Appellate Court to the sum of Rs.1,000 per mensem---High Court in exercise of Constitutional jurisdiction had upheld the judgment of the Lower Appellate Court and dismissed the Constitutional petition ---Validity--­Maintenance fixed by the Courts below was proper and the same was within the exclusive jurisdiction of the Family Court and the Lower Appellate Court---Petitioner could have challenged the findings of the Courts below in the limited Constitutional jurisdiction of High Court only if he had succeeded in proving that the findings of the two Courts below were not based on any evidence or were based on total misreading of evidence---High Court had rightly dismissed the Constitutional petition---Leave to appeal was refused by Supreme Court.

Muhammad Aslam Uns, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

M. Tariq, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 11th December, 2000.

2001 S C M R 519

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Iftikhar Muhammad Chaudhry and

Abdul Hameed Dogar, JJ

Dr. ALI SANA SHAKIR BOKHARI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.261 of 2000, decided on 6th December, 2000.

(On appeal from the judgment, dated 28-6-2000, of the Lore High Court, Lahore, passed in Criminal Appeal No.764 of 1993).

(a) Contempt of Court Act (LXIV of 1976)-----

----Ss. 3/4---Constitution of Pakistan (1973), Art. 204---Contempt of Court---Contempt proceedings---Procedure---Courts in dealing with contempt proceedings are not bound by the Civil Procedure Code or Criminal Procedure Code or other technicalities involved in Civil or Criminal proceedings.

Muhammad Ibrahim and others v. Syed Ahmed and others PLD 2000 SC 71 ref.

(b) Contempt of Court Act (LXIV of 1976)----

----Ss. 3/4---Constitution of Pakistan (1973), Art. 204---Contempt of Court ---Averments made in the application in question were clearly covered under S.3 of the Contempt of Court Act, 1976---Contemner by filing the said application had meant that the Chief Justice and the two Judges of the High Court had initiated the judicial inquiry against him with ulterior motive in order to avenge their insult/disgrace caused to them by filing the Reference against the Chief Justice and not complying with their orders and directions---Chief Justice had ordered the judicial inquiry against the contemner (accused) in his capacity as Chief Justice and not in his private capacity and to allege the same as biased and motivated, had clearly lowered the authority of the Court and amounted to scandalize the Chief Justice and the Judges in relation to their office ---Attributing improper and dishonest motive to Chief Justice and the two Judges in initiating inquiry against the accused under the disciplinary rules could definitely lower the confidence of public in the credibility of the judicial system which the said Judges were to administer ---Averment made in the application and the plea of truth taken therein had not been made in the circumstances and before the Authorities as envisaged under S. 3(vi) & (vii) of the Contempt of Court Act, 1976---Said application was submitted in the High Court arraying the Chief Justice as respondent No.1 therein and it was not submitted before the Chief Justice of the High Court or the Chief Justice of Pakistan for initiating action against the Chief Justice or other Judges in any Reference against them---Contempt proceedings had not been started against the accused for his allegation in the Reference made by him before the Competent Authority, but those had been initiated on the basis of the aforesaid application filed by him in the High Court---Conviction of accused was maintained in circumstances---Accused, however, had remained under suspension, strains and stress for a period of more than seven years---Sentence of six months' S.-I. awarded to accused was, therefore, reduced to one month's S.I.

`Muhammad Ibrahim and others v. Syed Ahmed and others PLD 2000 SC 71; PLD 1976 SC 315; PLD 1973 Lah. 778; AIR 1966 Andh. Pra. 167; AIR 1954 SC 10; Yusuf Ali Khan, Bar-at-Law v. The State PLD 1977 SC 482; AIR 1976 SC, 354 and AIR 1975 SC 383 ref.

Talib H. Rizvi, Senior Advocate Supreme Court for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court Advocate­-General Punjab for Respondent.

Date of hearing: 5th October, 2000.

2001 SCMR 533

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and

Tanvir Ahmed Khan, JJ

LADHA KHAN and others---Appellants

versus

Mst. BHIRANWAN---Respondent

Civil Appeal No. 1126 of 1997, decided on 30th November, 2000.

(On Appeal from the judgment, dated 10-4-1996 of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No.51 of 1979).

(a) Punjab Pre-emption Act (I of 1913)---

----S. 21--Pre-emption suit---Omission by Government functionaries---Non impleading of all the vendors---One of the vendors was omitted by the plaintiff in his plaint and the omission was due to absence of the name of that vendor in the certified copy of sale-deed which was issued by the office of the Registrar---Effect---Plaintiff could not be penalized for not impleading that vendor in the array of defendants in the suit as the omission had been made in the number of vendees during the course of recording entries by the office of the Registrar---Act of Court would prejudice no man---All the public functionaries were enjoined by law to perform their duties in honest manner---Where some omission or irregularity was committed, the ordinary man should not be made to suffer for the same provided he had no hand therein---High Court had rightly restored the judgment and decree of the Trial Court in circumstances.

(b) Maxim--­

---- Act of Court shall prejudice no man.

Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another PLD 1983 Lah. 1; Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others PLD 1975 Lah. 7; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Sh. Mehraj Din v. Ghulam Muhammad PLD 1965 Lah. 374;

Muhammad Ashraf and 5 others v. Alam Din and 7 others 1989 CLC 211 and Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957 ref.

Mansoor Ahmed, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate- on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court with Ch.

Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 30th November, 2000.

2001 S C M R 536

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Iftikhar Muhammad Chaudhry

and Abdul Hameed Dogar, JJ .

MUHAMMAD SALEEM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.315 of 1998, decided on 10th October, 2000:

(On appeal from the judgment, dated 9-4-1997, of the Lahore High Court, Lahore passed in Criminal Appeal No.58/J-92).

(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 only on the limited question of sentence on the plea of his minority.

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

----Ss. 302 & 308---Death sentence, propriety of---Provision of the Criminal Law (Second Amendment) Ordinance (VII of .1990) whereby "adult" had been defined to mean a person having attained the age of 18 years and not liable to Qisas in terms of S. 308, P.P.C., was promulgated on 5-9-1990 and enforced on 3-10-1990, whereas the offence in the case was committed on 4-1-1989 and as such the said law was not applicable---Even otherwise the said provisions could not apply as the sentence of death had not been given to accused in the case as "Qisas", but had been-awarded as "Tazir"---Record did not prove that the accused at the time of occurrence was 15 years of age as he had not produced any evidence on this point---Trial Court usually recorded the age of the accused at the time of recording statement under S.342, Cr.P.C. at random and in routine manner just by appearance which could not be made basis for finding on such an important matter---Deceased a young boy of 16 years, according to his post-mortem report, had suffered 13 incised wounds mostly on vital parts of the body and he was done to death merely because he refused to surrender to the immoral lust of the accused--­Murder had been committed in a brutal and relentless manner and the accused did not deserve .any leniency in the matter of sentence---Appeal against sentence was dismissed accordingly.

Mirza Masood-ur-Rehman, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Appellant.

Rao Muhammad Yousaf Khan, Advocate-on-Record for the State.

Date of hearing: 10th October, 2000.

2001 S C M R 539

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Javed Iqbal, JJ

NADIR KHAN---Appellant

versus

ITEBAR KHAN---Respondent

Civil Appeal No. 1485- of 1999, decided on 21st November, 2000.

(On Appeal from the judgment, dated 10-2-1999 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No.21 /D of 1999).

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

----S. 13---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit--- Non-mentioning of particulars of Talb-i-Muwathibat in the plaint ---Effect--­Leave to appeal was granted to consider as to whether it was mandatory to give in the plaint of the suit for possession by pre-emption, the particulars and details of date, time and place of making Talb-i-Muwathibat and also to disclose names of witnesses ' in whose presence the Talb was made.

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

----S. 13---Pre-emption suit---Non-mentioning of particulars of Talb-i-­Muwathibat in plaint---Plaintiff was non-suited by the Courts below for the reason that the particulars of the Talb were not mentioned in the plaint--­Validity---Plaintiff had specifically referred in the plaint to the two Talbs having been made---Plaintiff could not be non-suited merely on the ground that time and place of the Talb-i-Muwathibat and the names of the witnesses had not been specifically disclosed in the plaint---Plaintiff had referred to making of the Talbs in the plaint---Copy of notice of Talb-i-Ishhad as envisaged under S.13(3) of Punjab Pre-emption Act, 1990, had been produced in the evidence on which no cross-examination had been directed nor any objection had been raised by the defendant--Judgments and decrees of the Courts below were set aside---Suit of the plaintiff was decreed in circumstances.

Sar Anjam v. Abdul Raziq 1999 SCMR 2167; Haji Noor Muhammad through his Legal Heirs v. Abdul Ghani and 2 others 2000 SCMR 329; Moti Lal Poddar v. Judhistir Das Teor and others AIR 1916 Cal. 658 and Abdul Maleque Laskar v. Begum Tayabunnessa and others PLD 1966 Dacca 217 rel.

Khani Zaman v. Shah Hussain and others PLD 1998 SC 121 distinguished.

Muhammad Munir Peracha, Advocate Supreme Court instructed by Ijaz Muhammad Khan, Advocate-on-Record for Petitioner.

Sh. Riazul Haq, Advocate Supreme Court instructed by M. A. Zaidi, Advocate -on-Record for Respondent.

Date of hearing: 21st November, 2000.

2001 S C M R 543

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and

Tanvir Ahmed Khan, JJ

SHAHAB-UD-DIN and 5 other's---Appellants

versus

MIR ALI KHAN---Respondent

Civil Appeal No. 1242 of 1998, decided on 30th November, 2000.

(On appeal from the judgment, dated 17-9-1997, of the Peshawar High Court, Circuit Bench, D.1 Khan, passed in Civil Miscellaneous (Review) Ng.66 of 1996 in C.R. No.61 of 1996).

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

--r-S. 24---Constitution of Pakistan (1973), Art.185(3)---Deposit of pre­-emption money---Concealing of original price by the pre-emptor --- Leave to appeal was granted by Supreme Court to consider that whether in the plaint the pre-emptor deliberately with mala fide intention did not disclose that the sale consideration was Rs.66,95,000 whereas a statement was made that the sale consideration was Rs.13,01,400 in order to avoid deposit of 1/3rd of Rs.66,95,000 and therefore he approached the Court with unclean hands; that whether deposit of 1/3rd of the pre-emption money as required by law was intended to ascertain that the pre-emptor in pre-emption suit had money to pre-empt the sale and he was prosecuting the suit bona fidely and the act of concealment of the real amount of consideration in the plaint would detract from the bona fides of the pre-emptor; that whether no appeal against the order of Trial Court requiring the pre-emptor to make up deficiency in the pre-emption money was maintainable as the same was not appealable order and the Lower Appellate Court extended the time without giving any reason or justification without considering the conduct of the pre-emptor, who, instead of in complying with the order of the Trial Court to make up deficiency in the pre-emption money, filed appeal which established that he was not prosecuting the pre-emption suit bona fidely, that whether on the date when the High Court dismissed the revision petition in limine of the Lower Appellate Court granting him further time to make up deficiency in the pre-emption money the time already allowed by that Court had not yet expired who should have directed to comply with the same but without application of judicial mind to the abovementioned facts and circumstances about mala fides of the pre-emptor the time was further extended without notice to the vendor whose rights were adversely affected as to get rejection of the plaint; that whether after dismissal of revision petition in limine by High Court without notice to the pre-emptors the only remedy available to them was to file a review application to get adjudication about the contentions raised by them on which there was no finding of High Court that whether no appeal was maintainable against the order of the Trial Court qua making up deficiency in pre-emption money, therefore, the Lower Appellate Court in view of the same would be deemed to have passed order under section 115, C.P.C. as if the said appeal was a revision petition as there was no other provision of law under which the Lower Appellate Court could exercise power in the matter, therefore, the second revision before the Court barred under S. 115 (4), C.P.C. and such point was specifically raised not only in review application but also in the argument which though was duly noted but no adjudication made in respect thereof; that whether question of exercise of inherent power by a Court would arise only in the proceedings in which the same was passed were maintainable under the law and since in the present case, second revision petition was not maintainable in High Court as such the power was not vested with the jurisdiction to entertain the same, therefore, question of exercise of inherent power did not arise.

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

----S. 24---Civil Procedure Code (V of 1908), S. 115(4)---Pre-emption money--- Concealing of original sale price of suit property---Conduct of pre­emptor ---Second revision petition ---Maintainability---Pre-emptor in his plaint wrongly stated the sale price and affixed the 1/3rd amount accordingly--­Trial Court on the application of vendee directed the pre-emptors to deposit additional amount so that the amount should have come according to the sale price mentioned in the sale-deed---Such order of Trial Court was assailed before Lower Appellate Court and the Court in exercise of revisional jurisdiction dismissed the revision but extended the time for deposit of the additional amount---Another revision petition was filed in the High Court and the same was also dismissed but there also further time was extended--­Validity---Where the pre-emptor in a mala fide and motivated way intentionally flouted the mandatory provision of law and the Lower Appellate Court as a revisional Court, by exercising the discretion extended period rather placed premium on the fraudulent conduct of the pre-emptor, High Court was not competent to exercise such jurisdiction as second revision was not competent before High Court---Even if the High Court was competent to exercise the jurisdiction in the matter, then it should have taken all the circumstances into consideration before using discretionary power---When the sole object of pre-emptor in filing of an appeal was to delay deposit of the pre-emption money, in such a case Lower Appellate Court might decline to extend the time---Order passed by the Courts below were set aside and the suit of pre-emptor was dismissed for his failure to deposit the pre-emption amount in accordance with law.

Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105 rel.

Qadir Bux and others v. Kh. Nasim-ud-Din and others 1997 SCMR 1267; Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945 and Ch. Muhammad Yaqoob v. Nazim Hussain and others 1995 CLC 1271 ref.

(c) Administration of justice---

---- Discretion should be exercised in a manner to advance justice and not to violate statutory provision.

Abdul Aziz Kundi, Advocate Supreme Court/Advocate-on-Record for Appellants.

Date of hearing: 30th November, 2000.

2001 S C M R 550

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, and Nazim Hussain Siddiqui, JJ

Dr. KHALID MASOOD and another---Appellants

versus

Mst. KHURSHID BEGUM---Respondent

Civil Appeal No. 1294 of 1996, decided on 4th December, 2000.

(On appeal from the judgment, dated 28-6-1995 of the Lahore High Court passed in S.A. O. No. 18 of 1995).

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

----S. 13(3)(a)(ii)(a)---Constitution of Pakistan (1973), Art. 185(3)--­Ejectment of tenant---Bona fide personal need of landlord---Tenant was ordered to be evicted from the premises on the ground of personal need of the landlady---Order of Rent Controller was upheld by High Court--­Validity---Leave to appeal was granted to consider as to whether the landlady required the premises in good faith for her own use and for the use of her son.

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

----S. 13(3)(a)(ii)(a)---Expression "Children"---Scope---"Children" include independent and married children including married daughters.

Muhammad Zaheer Khan v. Ch. Shah Muhammad PLD 1980 Lah: 125; Shorter Oxford Dictionary, 3rd Edn., p. 301; Mian Abdul Hafeez v. Mst. Faridunnisa 1985 SCMR 939; Abdus Salam v. Najam Parvez 1976 SCMR 52 and Mst. Faukhar-un-Nisa v. Safdar Ahmed and 6 others PLD 1985 Kar. 639 ref

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

----S. 13(3)(a)(ii)(a)---Expression "require in good faith for his own use"--­Applicability---Where the premises are used by landlord through the assistance of others still the same would fall within the ambit of the expression "requires in good faith for his own use".

(d) Interpretation of statutes---

Not the words of any statute but its spirit that makes the law meaningful---Court has to carry out real purpose of the statute, rather than to defeat the same---Construction which promotes improvements in administration of justice and removal of defect, should be favoured over one which protects wrong.

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

----S. 13(3)(a)(ii)(a)---Expression "in good faith for his own use"--­Applicability---Need of grandson included in the expression "in good faith for his own use" ---Premises was required for the use of grandson of the landlady---Rent Controller allowed the ejectment application but the Lower Appellate Court dismissed the same for the reason that the use of grandson was not covered under the said expression---High Court in exercise of appellate jurisdiction allowed the appeal and restored the judgment of the Rent Controller---Validity---When the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, looked after interest of both landlord and tenant, the expression "in good faith for his own use" needed liberal interpretation---Expression "in good faith for his own use" was to be interpreted to include the requirements of grandchildren also--[Muhammad Zaheer Khan v. Ch. Shah Muhammad PLD 1980 Lah. 125 overruled].

Muhammad Zaheer Khan v. Ch. Shah Muhammad PLD 1980 Lah. 125 overruled.

Muhammad Anwar and another v. Muhammad Saeed and another 1991 SCMR 2337; Muhammad Fareed Khan v. Haji Mir Zaman Khan PLD 1982 SC 278; Short Oxford Dictionary, 3rd Edn., p. 301; Mian Abdul Hafeez v. Mst. Faridunnisa 1985 SCMR 939; Abdus Salam v. Najam Parvez 1976 SCMR 52 and Mst. Faukhar-un-Nisa v. Safdar Ahmed and 6 others PLD 1985 Kar. 639 ref.

Ch. Ali , Muhammad, Advocate Supreme Court and Walayat Umar, Advocate-on-Record (absent) for Appellants.

Mehmood A. Qureshi, Advocate Supreme Court for Respondent.

Date of hearing: 4th December, 2000.

2001 S C M R 556

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

Messrs ALHAMD TEXTILE MILLS LIMITED---Appellant

versus

PAKISTAN through Secretary, Ministry of Finance and others---Respondents

Civil Appeal No.621 of 1997, decided on 30th November, 2000.

(On appeal from the judgment, dated 13-4-1994 passed by Lahore High Court, Multan Bench Multan in Writ Petition No.30 of 1987).

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

----S.19---Notification NO.S.R.0.500(I)/84, dated 14-6-1984 and Notification NO.S.R.0.700(1)/80, dated 26-6-1980---Constitution of Pakistan (1973), Art. 185(3)---Exemption from import duty---Pay as You Earn (PAYE) Scheme---Leave to appeal was granted by Supreme Court to consider, whether the revised contract for import of textile machinery under Pay As You Earn Scheme having been entered into and sanctioned/approved by the concerned Authorities before the issuance of Notification NO.S.R.0.500(1)/84, dated 14-6-1984, the import of the goods by the petitioner, was covered under the previous Notification NO.S.R.0.700(1)/80, dated 26-6-1980.

Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 and Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and other 1993 SCMR 1905 ref.

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

----S. 31-A---Notification---Modification or withdrawal of--Jurisdiction of Authorities---Vested right of parties---Protection of such right---Criteria--­Scope---Government or its functionaries cannot be bound down for all times to come not to modify, withdraw or promulgate Notification imposing tax only for the reason that one of the parties has entered into a contract for the supply of foreign machinery particularly in those cases in which neither the Federal Government is a party nor in the superseded Notification it has been mentioned that the same would remain operative till a particular period---Where any party is interested to seek benefit from the favourable Notification, it becomes the duty of the party to show from its conduct the steps which have been taken to materialize the contract to establish that a vested right has accrued to that party.

Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 ref.

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

----Ss. 19 & 31-A---Notification. NO.S.R.0.500(1)/84, dated 14-6-1984 and Notification NO.$.R.0.700(1)/80, dated 26-6-1980---Exemption Notification---Modification or withdrawal of---Pay as You Earn (PAYE) Scheme---Appellant entered into contract for import of machinery and Letter of Credit was opened in the name of foreign suppliers---Appellant claimed exemption in import duty on the bases of Notification NO.S.R.0.700(1)/80, dated 26-6-1980 but the Authorities refused to give the exemption on the ground that the Notification was superseded by another Notification NO.$.R.0.500(1)/84, dated 14-6-1984---Validity---Where earlier Notification was superseded by the subsequent Notification and till opening of the Letter of Credit, dated 30-12-1985 no concrete steps were taken to implement the contract, Government could not be compelled to extend the benefit of the earlier Notification to the appellant---Federal Government being not one of the contracting parties to the contract of the appellant, could not be bound down for all times to come not to supersede, rescind or modify Notification NO.S.R.0.700(1)/80, dated 26-6-1980---Where the appellant: could show the Authorities that the machinery so imported was not being manufactured in Pakistan at the relevant time, he could still get the benefit o: non-payment of additional duty of 20% ad valorem.

Sohail Jute Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance and others PLD 1991 SC 329 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404 rel.

Raja Muhammad Akram, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record (absent) for Appellant.

Izharul Haq, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (absent) for Respondents.

Date of hearing: 30th November, 2000.

2001 S C M R 563

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

FEDERATION OF PAKISTAN through Secretary Finance, Finance Division, Islamabad and 3 others---Petitioners

versus

Messrs ZAMAN COTTON MILLS LIMITED through General Manager---Respondent

Civil Petition for Leave to Appeal No. 1791 of 1999, decided on 5th December, 2000.

(On Appeal from the judgment of the Peshawar High Court, Peshawar, dated 29-4-1999 passed in Writ Petition No. 1404 of 1999).

Income Tax Ordinance (XXXI of 1979)---

----Ss. 80-CC & 80-D---Notification S.R.0.60(I)/87, dated 22-1-1987--­Protection of Economic Reforms Act (XII of 1992), S.6---Constitution of Pakistan (1973), Art. 185(3)---Exemption from income-tax---Industrialist of industrial estate of Gadoon Amazai---Contention of the Authorities was that the High Court did not apply properly, the law laid down by Supreme Court in the case of Elahi Cotton Mills reported as PLD 1997 SC 582---Validity--­Leave to appeal was granted by Supreme Court to consider as to whether in view of S. 6 of Protection of Economic Reforms Act, 1992, exemption from the payment of income-tax under S.80-CC and S. 80-D of Income Tax Ordinance, 1979, would be available to the assessees; that whether cl.(122-C), which was incorporated in the Second Sched. of Income Tax Ordinance, 1979, by means of Notification S.R.0.60(I)/87, dated 22-1-1987 would provide protection to the assessees from not making the payment of income-tax under S. 80-CC and S.80-D. of Income Tax Ordinance, 1979 and that whether the rule laid down by Supreme Court in Elahi Cotton Mills Limited's case, had rightly been applied by the High Court keeping in view the facts of the case of the assessees.

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 ref.

Mansoor Ahmad, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondent:

Date of hearing: 5th December, 2000.

2001 S C M R 565

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

ENMAY ZED PUBLICATIONS (PVT.) through Director-General---Appellant

versus

SINDH LABOUR APPELLATE TRIBUNAL through Chairman and 2 others---Respondents

Civil Appeal No. 1298 of 1998, heard on 18th October, 2000.

(On appeal from the judgment, dated 5-1-1998 of the High Court of Sindh, Karachi passed in Civil Petition No. D-1857 of 1997).

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 185(3)---Termination of service---Employment on contract basis---Contentions of the employer was that even in case the Tribunal was of the view that on account of length of service of employee, he was a permanent workman and was entitled to a notice as required by S: 4 of Newspaper Employees (Conditions of Service) Act, 1973, his services could nevertheless be terminated by the employer at any time on payment of wages in lieu of such notice, therefore, the judgment of High Court was liable to be reviewed and that the employee was informed through notice that the service contract was not to be renewed who accepted the same and vide his reply requested for settlement of his dues, consequently the conduct of the employee disentitled him to claim relief of reinstatement---Leave to appeal was granted by Supreme Court to consider the contentions raised by the employer.

(b) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Termination of service--- "Temporary workman" and "permanent workman"---Distinction---Matters of termination of service of newspaper employee are governed by the provisions of S. 4, Newspaper Employees (Conditions of Service) Act, 1973, and the same do not make any distinction between "temporary workman" and "permanent workman" or "contract employee" ---Order of termination of service of employee has to be tested on the touchstone of the provisions of S.4 of the said Act and the same is justiciable if challenged by the employee before a Court of law---Mandatory requirement of the provision is that the decision to terminate the service of newspaper employee must be based on good cause.

(c) Interpretation of statutes---

---- Proviso attached to main section---Effect--Proviso to a section operates as an exception and cannot render redundant or ineffective the substantial provisions of the main section.

(d) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.12(3)---Termination of service--­Newspaper employee---Provisions of S.0.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--­Applicability---Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 have not been excluded to the newspaper employees, therefore, the provision would continue to apply to them unless the same is found to be either inconsistent or in conflict with any provision of Newspaper Employees (Conditions of Service) Act, 1973.

(e) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Termination of service---" Good cause" ---Termination of service has to be made in good cause---Mere fact that the employee was given service for fixed period under .the contract and on expiry of that period service was terminated, was not a "good cause" for termination of service.

(f) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Termination of service---Principe of estoppel---Applicability--­Employment on contract basis---Employee at the time of termination, demanded that his dues should be paid after settlement of accounts---Such demand was not to operate as estoppel against the employee regarding his reinstatement---Mere demand by the employee that his dues should be paid after settlement of accounts could not operate as estoppel against him.

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

----S.25-A---Newspaper Employees (Conditions of Service) Act (LVIII of 1973), S. 4---Grievance petition---Maintainability---Contract employee--­Termination of service---Non-settlement of the accounts of the employee--­Employee had a right to approach the Labour Court for redressal of his grievance against the act of termination of his service.

(h) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 4 & 19(2)---Termination of service---Contract employee---Failure to give, any notice---Validity---Terms of agreement of the employee with the employer as regards termination of service could not be regarded more favourable to him for under S.4 of Newspaper Employees (Conditions of Service) Act, 1973, the services of the employees could not be terminated except on "good cause" whereas a right was being claimed under the agreement that his services could be terminated at any time without any reason merely because the period for which he was employed, had expired--­Appeal of the employer was dismissed.

M.L. Shahani, Advocate Supreme Court for Appellant.

Shahenshah Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 18th October, 2000.

2001 S C M R 574

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Rashid Aziz Khan and Tanvir Ahmad Khan, JJ

SARFRAZ KHAN and another---Petitioners

versus

THE RETURNING OFFICER and another---Respondents

Civil Petition for Leave to Appeal No.3134-L of 2000, decided on 26th December, 2000.

(On appeal from the order dated 19-12-2000 of the Lahore High Court, Lahore passed in Writ Petition No.24977 of 2000).

Constitution of Pakistan (1973)----

----Arts. 199 & 185(3)---Constitutional petition---Question of fact---Dispute was with regard to fake appearance in Matriculation Examination--­Authorities denied, appearance of the petitioner in the examination---Act of the Authorities was assailed before High Court in Constitutional petition and the same was dismissed---Validity---When it was a question of fact the High Court could not have gone into the same, in exercise of Constitutional jurisdiction---Leave to appeal was refused.

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

Nemo for Respondents.

Date of hearing: 26th December, 2000.

2001 S C M R 575

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Deedar Hussain Shah, JJ

MUHAMMAD ISHAQUE and others---Petitioners

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and others---Respondents

Civil Petition for Leave to Appeal No. 1935-L of 1999, decided on 22nd November, 2000.

(On appeal from the judgment/order, dated 16-9-1999, of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1992 of 1993).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Joint appeal before Service Tribunal---Delay in filing of appeal---Rules which prevailed at the time of induction of civil servant in service---Applicability---Leave to appeal was granted by Supreme Court to consider as to whether the civil servants could legally claim to be governed by the Rules which prevailed at the time of their induction in service, or they had no vested right to claim so and they would be governed by the amended Rules; whether the appeal before Service Tribunal suffered from laches/undue delay and misjoinder of parties and whether joint appeal before the Tribunal by all the civil servants was not competent.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Petitioners.

Dr. Qazi Mohy-ud-Din, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents.

Date of hearing: 22nd November, 2000.

2001 S C M R 577

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhagwan Das, JJ

HANIF and others---Appellants

versus

Malik ARMED SHAH and another---Respondents

Civil Appeals Nos. 1504 to 1509 of 1996, decided on 5th December, 2000.

(On Appeal from judgment of High Court of Balochistan, Quetta, dated 27-9-1995 passed in F.A.O. Nos. 5 to 10 of 1995).

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

----Ss. 2(c) & 13---Expression "landlord" --Definition --- Scope --- Ejectment application---Maintainability---Competency/locus standi to file petition--­Ejectment application was instituted by person dealing with collection of rent, enhancement of rent and negotiation with tenants for vacating the premises---Such person fell within the purview of the expression "landlord" as defined in S.2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959---Ejectment application filed by such persons was maintainable.

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

----S.13---Constitution of Pakistan (1973), Art. 185---Appeal to Supreme Court---Concurrent findings of fact by two Courts below---Supreme Court declined to interfere with such findings.

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

----S. 15---Civil Procedure Code (V of 1908), Preamble ---Ejectment petition---Provisions of Civil Procedure Code, 1908---Applicability--­Provisions of Code of Civil Procedure, 1908, may not be stricto senso applicable to the proceedings before Rent Controller---Broad and equitable principles regulating the procedure of the proceedings before the Rent Controller can always be invoked and attracted in the interest of justice and fairplay.

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

----S. 13(2)(vi)---Ejectment of tenant---Requirement of the building for reconstruction---All that is needed under the law is that a landlord should reasonably and in good faith require the premises for reconstruction and for that purpose he should have obtained approval of building plan from the Local Authorities concerned.

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

----S.13(2)(vi)---Ejectment of tenant---Reconstruction---Landlords decided to demolish the demised shops and construct a residential building on a piece of land alongwith the area of the shops---Validity---No restriction could be placed on the rights of the landlord as he was always entitled to improve the condition and nature of his building without any lawful reservation.

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

----S. 13(2)(vi)---Ejectment of tenant---Choice of landlord---Prerogative of the landlord to use his property according to his own choice and discretion rather than to be dictated by the terms convenient to a tenant.

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

----S. 13---Ejectment of tenant---Combination of pleas ---Reconstruction and plea of bona fide personal need by landlord---Two pleas are not mutually destructive and failure of landlord's plea of reconstruction does not disentitle him to eviction on ground of personal requirement.

Bashir Hussain v. Muhammad Saeed PLD 1976 Lah. 1095; Muhammad Yusuf v. Zohran Bibi PLD 1973 Pesh. 186; Abdullah Baloch v. Adam Ali PLD 1961 SC 28; Abdul Bari v. Khadim Hussain PLD 1978 SC 78; Khuda Bakhsh v. Muhammad Yousuf PLD 1976 Lah. 275; Haji Ali Khan v. Madan Das 1988 MLD 2391; Muhammad Shafique v. S.M. Khurram 1983 SCMR 1227; Taj Muhammad v. Salahuddin 1995 CLC 1269 and Amir Din Allah Ditta v. Adamji Abdullah 1969 SCMR 131 ref.

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

---S. 13---Ejectment of tenant---Reconstruction and bona fide personal need of landlord---Character of property, changing of---Landlord intended to demolish the demised shops and wanted to include the land of the shops in his residential house---Rent Controller as well as the High Court allowed the ejectment application---Validity---Requirement of the landlord for reconstruction of building for his own occupation was genuine, reasonable, in good faith and wholly warranted by the -circumstances---No legal bar or embargo existed on the exercise of the right of landlord to ask for eviction of the tenants for reconstruction---Landlord could not be forced to reside in adjoining bungalow as the same would frustrate the spirit of the law and was violative of the Constitution guarantees given to every citizen---Seeking ejectment from non-residential premises for reconstruction of a residential house was not fatal as the building plan had been duly approved by the Municipal Authorities---Judgment of the Courts below were not interfered by the Supreme Court.

M. Aslam Chishti, Senior Advocate Supreme Court and S.A.M Quadri, Advocate-on-Record for Appellants.

Shakil Ahmed, Advocate Supreme Court and M,W.N. Kohli, Advocate-on-Record for Respondents.

Date of hearing: 5th December, 2000.

2001 S C M R 585

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Javed Iqbal, JJ

ALI AHMED and others---Appellants

versus

MUNICIPAL COMMITTEE, TALAGANG through Administrator and others---Respondents

Civil Appeals Nos. 679 and 680 of 1995, decided on 23rd November, 2000.

(On appeal from judgment, dated 17-11-1994 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi, in R.F.A. No.865 of 1978).

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

----Art. 185(3)---Leave to appeal was granted by Supreme Court to examine the rights of the owners to change the status of land which was being used as Rafah-e-Aam.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction ---Cypres, doctrine of---Applicability---Suit land had the status of Rafah-e-Aam in Revenue Record but the appellants who were the owners of the same intended to change the status and use the land for commercial purposes--­Concurrently all the Courts below had dismissed the suit of the appellants--­Validity---Ownership of the land in dispute could not be changed which would remain as "Maqbuza Rafah-i-Aam"---Land though could not be used for the purpose for which the same was originally meant for, yet the land could be used for any other purpose for the welfare of general public--­Authorities raised a plea that the land might be converted into a public park---Where the formal or particular purpose could not be carried out the Court might approve scheme which was in consonance with the general intention of the donor---Doctrine of cypres was pressed into service by Supreme Court and found that by converting the land In dispute into a public park the objective could be achieved by utilizing the land for the public-at-­large.

Gul Zarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants.

Ibrahim Satti, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No. 1.

Date of hearing: 23rd November, 2000.

2001 S C M R 593

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

MUHAMMAD AFZAL and others---Appellants

versus

PROVINCE OF PUNJAB through Collector, Multan and others---Respondent's

Civil Appeal No. 146 of 1995, decided on 16th November, 2000.

(On appeal from the judgment, dated 15-6-1993 passed by Lahore High Court, Multan Bench in Civil Revision Petition No. 527-D of 1989).

West Pakistan Land Revenue Act (XVII of 1967)---

----S. 45---Qanun-e-Shahadat (10 of 1984), Arts. 78 & 79---Mutation--­Validity---Execution of document---Proof---Plaintiffs produced marginal witness as well as copy of Roznamcha Waqiati (Daily Diary) in support of their plea that the mutation was rightly attested---Suit was decreed by Trial Court but the Lower Appellate Court allowed the appeal and dismissed the suit---Revision was filed before High Court which was dismissed--­Contention of the defendants was that their possession was that of tenant but when they refused to give share of produce to the plaintiffs, the proceedings were initiated against them and as a counterblast fresh suit was filed--­Validity---Defendants were under obligation to establish their proprietary rights---Plaintiffs having established their claim were entitled for the decree---Judgment and decree of Trial Court was restored and those of Lower Appellate Court as well as High Court were set aside by the Supreme Court.

Muhammad Munir Peracha, Advocate Supreme Court and Sh,. Salah-ud-Din, Advocate-on-Record (absent) for Appellants.

Shamim Abbas Bukhari, Advocate Supreme Court and Syed A. Asim Jafri, Advocate-on-record (absent) for Respondents.

Dates of hearing: 15th and 16th November, 2000.

2001 S C M R 599

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhawan Das, JJ

MUHAMMAD INAYAT---Appellant

versus

SALEH MUHAMMAD---Respondent

Civil Appeal No. 155 of 1998, decided on 8th December, 2000.

(On appeal from judgment of High Court of Balochistan, Quetta, dated 20-8-1996, passed in F.A.O. No.93 of 1995).

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

----S.13(3)(ii)---Ejectment from non-residential building---Bona fide persona need of landlord---Requirements of law---Scope---Requirement of law in such a case is not only that the landlord does not occupy in the same urban area any other building or rented land suitable for his needs at the time but also that the landlord has not vacated such building or rented land without sufficient cause.

(b) West Pakistan Urban Rent Restriction Ordinance (V of 1959)----

----S.13(3)(ii)---Ejectment from non-residential building---Bona fide personal need of landlord---Renting another shop owned by the landlord adjacent to the premises before, passing of ejectment order---Ejectment petition was filed on the ground of personal need for the son of the landlord---Landlord got his adjacent shop vacated by his other tenant and rented out the same before the case was decided---Rent Controller dismissed the ejectment petition but High Court set aside the order of the Rent Controller and allowed the petition--­Validity---High Court ignored the justification and sufficiency of the cause that led to the letting out of another shop immediately preceding the act of seeking ejectment ---High Court, having not considered the justification finding of High Court was sine qua non, for allowing ejectment from non­residential building on personal ground---Judgment of High Court was set aside and that of the Rent Controller restored by Supreme Court, Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Ahmed Raza Kasuri, Advocate Supreme Court and Karam Elahi Bhatti, Advocate- on-Record for Respondent.

Date of hearing: 8th December, 2000.

2001 S C M R 605

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

THE STATE LIFE INSURANCE CORPORATION

OF PAKISTAN---Appellant

versus

KOTRI TEXTILES MILLS (PVT.) LTD. ---Respondent

Civil Appeal No. 1781-K of 1997, decided on 28th November, 2000.

(On appeal from the judgment, dated 28-2-1996 passed by High Court of Sindh, Karachi in F.R.A. No.299 of 1994).

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

----S. 16(2)---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Defence, striking off---Order of ejectment of tenant was assailed in application under S.12(2), C.P.C.---Leave to appeal was granted by Supreme Court to consider as to whether application of the tenant under S.12(2), C.P.C. was competent against the order of Rent Controller whereby defence of the tenant was struck off for non-compliance of the tentative rent order; that whether High Court was justified in allowing the First Rent Appeal and condoning the delay of one day in depositing the arrears of rent upon the application of the tenant under S.12(2), C.P.C.

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

---S. 16(2)---Ejectment of tenant---Defence, striking off---Failure to comply with tentative rent order---Delay of one day---Extension of time--­Jurisdiction of Rent Controller---Delay was caused due to wrong advice of the counsel---Before the termination of last date for deposit of tentative rent, the tenant filed application before the Rent Controller for extension of time---Such application was dismissed by the Rent Controller---Tenant deposited the tentative rent on the following day but the Rent Controller passed the order of ejectment ---Tenant assailed the ejectment order in application under S.12(2), C.P.C. which was dismissed by the Rent Controller---High Court allowed the application of the tenant and condoned the delay of one day---Validity---Where Court was of the opinion that there was no mala fides on behalf of the tenant to comply with the order, the Rent Controller always retained inherent jurisdiction under S.16(2) of Sindh Rented Premises Ordinance, 1979, to enlarge time reasonably---In case of non-compliance of order without explaining the circumstances, the tenant deserved no concession of condonation of delay and the Rent Controller was not bound to exercise inherent jurisdiction in his favour---Supreme Court refused to interfere in the order of High Court condoning the delay.

Ghulam Muhammad v. Mst. Raj Begum PLD 1962 Quetta 136 rel.

Akram 'Zuberi, Advocate Supreme Court and S.M. Abbas, Advocate-on-Record (absent) for Petitioner.

Respondent in person (absent).

M.A. Qami, Advocate-on-Record (absent) for Respondent.

Date of hearing: 28th November, 2000.

2001 S C M R 609

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Mian Muhammad Ajmal, JJ

AMIRZADA KHAN and another----Petitioners

versus

ITBAR KHAN and others----Respondents

Civil Petition No. 82-P of 2000, decided on 13th June, 2000.

(On appeal from the judgment, dated 10-12-1999 of the Peshawar High Court, Peshawar passed in Civil Revision No. 14 of 1994).

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

----Arts. 117 & 120---Documents, execution of---Execution of document by Pardahnashin lady---Genuineness---Onus to prove---Burden to prove genuineness of a transaction with Pardahnashin lady and a document allegedly executed by such lady lay on the person who claimed benefit from the transaction or under the document---Such person was legally obliged to prove and satisfy the Court that the document had been executed by Pardanashin lady, that the lady had complete knowledge and full understanding about the contents of the documents and that she had independent and disinterested advice in the matter before entering into the transaction and executing the document---Plaintiff, however, failed to prove that during the proceedings in the mutation, any of the close relation of the vendor-lady was associated.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S. 45--­Constitution of Pakistan (1973), Art. 185(3)---Entries in mutation---Value of---Transaction with Pardahnashin lady---Ownership on the basis of rejected attested sale mutation---Suit for declaration---Suit-land was owned by Pardahnashin lady and the plaintiffs claimed its ownership on the basis of rejected/unattested sale mutation---Trial Court decreed the suit while the Appellate Court allowed the appeal and the suit was dismissed---Judgment of Appellate Court was upheld by the High Court---Plaintiffs, to prove the transaction, relied upon unattested sale mutation in which during the proceedings before Revenue Authorities no close relation of the vendor-lady was associated ---Validity---Co-vendee denied the sale of half portion of the suit property in his favour and the suit was filed 33 years after the alleged sale---Mere reliance on mutation would not be sufficient to prove the transaction unless some cogent evidence proving the transaction itself independent of the mutation, was examined in the Court---Where the requirements of law laid down for a transaction with Pardahnashin lady had not been satisfied the Appellate Court and the High Court were correct to refuse to enforce such a transaction and had rightly concurred in the dismissal of the suit---Both the Courts having rightly discarded the sale in favour of the plaintiff, leave to appeal was refused.

Mir Adam Khan, Advocate Supreme Court/Advocate-on-Record for Petitioners.

Aman Khan, Advocate Supreme' Court and S. Safdar Hussain, Advocate-on-Record for Respondents.

Date ofhearing: 13th June, 2000.

2001 S C M R 612

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

THE STATE----Petitioner

versus

JAVED AHMED SIDDIQUI and others----Respondents

Criminal Petitions Nos.31-K to 34-K of 2000, decided on .24th August, 2000.

(On Appeal from the judgment of the High Court of Sindh, dated 30-3-2000 passed in Crinunal Appeals Nos.77 to 80 of 1999).

Penal Code (XLV of 1860)---

----Ss.392/34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to prosecution by Supreme Court to consider, inter alia, the points of law; whether the judgment of High Court for remand of the case to Sessions Court for trial afresh was in consonance with law and sustainable, whether the accused had committed robbery from the house of the deceased and caused murders which created terror and sense of fear and insecurity in the people and whether in circumstances, offence under S. 392, P.P.C., S.7(1)(a) of the Anti-Terrorism Act, 1997 alongwith Para. 2(c) of the Schedule attached thereto had been committed by the accused.

State through' Advocate-General, Sindh.-Karachi v. Farman Hussain and others PLD 1995 SC 1 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

Muhammad Sarwar Khan, A.A.-G for Petitioner. Respondent (Asma Nawab) in person.

Date of hearing: 24th August, 2000.

2001 S C M R 614

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Javed Iqbal

and Hamid Ali Mirza, JJ

MANAWAR ALI ----Petitioner

versus

THE STATE----Respondent

Criminal Petition for Leave to Appeal No.105 of 2000, decided on 14th September, 2000.

(On Appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 21-3-2000 passed in Criminal Appeal No.259 of 1998).

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

----S.302(b)---Appreciation of evidence---"Intention"---Connotation Intention does not imply or assume the existence of some previous design or forethought---Intention means an actual intention, the existing intention of the moment and is proved by or inferred from the acts of the accused and the circumstances of the case.

P.R. No.62 of 1887 ref.

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

----S.302(b)---Constitution of Pakistan (1973), Art.185(3)---Grave and sudden provocation, plea of---When sustainable---Spleen of the deceased had been ruptured due to Sota blows given by the accused and he could be presumed to have done so with the knowledge that by such infliction of Sota blows he was likely to cause death---Eye-witnesses had categorically stated that the Sota blows were inflicted on the deceased by the accused and their version being reliable and worthy of credence could not be brushed aside on the ground of inter se relationship---Ocular account of occurrence was fully supported by medical evidence---Defence plea of grave and sudden provocation appeared to be without any substance---Before pressing into service the plea of grave and sudden provocation it had to be shown distinctly not only that the act was done under the influence of some feeling which had taken away from the accused all control over his actions, but that feeling had an adequate cause which was lacking in the case---Impugned judgment being free from any illegality or irregularity did not call for any interference---Petition for leave to appeal was dismissed accordingly.

P.R. No.62 of 1887; 2000 SCMR 1784; 1994 SCMR 1; PLD 1962 SC 269; 1976 SCMR 161; 1970 SCMR 734; PLD 1988 SC 274; 1977 SCMR 457; PLD 1969 SC 488; PLD 1974 SC, 37 and Dhanno Khan's case 1957 Cr.1J 498 ref.

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

----S. 302(b)---Appreciation of evidence---Related witness ---Principle--- Friendship or relationship of a witness with the deceased is not sufficient to discredit him particularly when he has no motive to falsely involve the accused in the case.

2000 SCMR 1784; 1994 SCMR 1; PLD 1962 SC 269; 1976 SCMR 161; 1970 SCMR 734 and PLD 1988 SC 274 ref.

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

----S.302(b)---Appreciation of evidence---Disinterested witness, authenticity of---Mere disinterestedness of a witness does not prove that he has come forward with a true statement---Statement itself has to be scrutinized thoroughly to see as to whether it is reasonable, probable or plausible and can be relied upon.

1977 SCMR 457 ref.

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

----S.302(b)---Appreciation of evidence---Corroboration---Corroboration being a rule of prudence is not always necessary---Uncorroborated testimony can be relied upon in context with other relevant circumstances of a particular case.

PLD 1969 SC 488 and PLD 1974 SC 37 ref.

Sardar Muhammad Siddique Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 14th September, 2000.

2001 S C M R 619

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Munir A. Sheikh, JJ

MAZAHIR-UR-REHMAN KHAN SHERWANI and 9 others----Petitioners

versus

MEMBERS COLONIES, BOARD OF REVENUE, PUNJAB, LAHORE and 30 others----Respondents

Civil Appeal No. 1343 of 1995, decided on 3rd July, 1998.

(On appeal from the judgment of Lahore High Court, Lahore, dated 29-6-1994 passed in Writ Petition No.5999 of 1978).

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

----Art. 185(3)---Leave to appeal was granted to consider the plea that in accordance with the instructions with regard to the lease of the surrendered land to its owners, the tenants were not entitled to the transfer of the land in dispute and that an option was given to the appellants to purchase the land as far back as 1962 but no notice for the payment of price was served upon them.

(b) Scrutiny of Claims (Evacuee Property) Regulation, 1961 (MLR 89)---

----Constitution of Pakistan (1973), Art. 185---Purchase of surrendered land---Failure to file option for purchase of the land in due time---Appellant surrendered surplus land---Revenue Authorities up to the level of Board of Revenue recorded a finding of fact that the appellant had not submitted the option of purchase of the land in time--Such finding of fact was affirmed by High Court in exercise of Constitutional jurisdiction---Validity---Plea of option to purchase the land was not available to the appellant---Refusal to exercise extraordinary Constitutional jurisdiction which was discretionary jurisdiction was fully justified---No exception could be taken to the view which prevailed with the Board of Revenue as well as the High Court.

Naveed Rasul Mirza, Advocate instructed by Sh. Salahuddin, Advocate-on-Record (absent) for Appellants.

Tariq Masud. Advocate for Respondents Nos. 3 to 31.

Date of hearing: 22nd June, 1998.

2001 S C M R 624

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

MUHAMMAD IQBAL and others---Appellants

versus

THE STATE----Respondent

Criminal Appeal No.456 of 1995, decided on 14th June, 2000.

(On appeal from the judgment, dated 25-5-1995 of the Lahore High Court, Multan Bench, in Criminal Appeal No. 229 of 1991).

Penal Code (XLV of 1860)--

----Ss. 302/34---Appraisal of evidence---Ocular testimony had implicated all the accused in the commission of the crime which had taken place in day time and there was no question of mistaken identity---Ocular version with regard to causing of injuries with blunt weapon i.e. Sotas was confirmed by medical evidence and was also corroborated by motive---Prosecution evidence was trustworthy and confidence-inspiring---Doctor's estimate with regard to probable time between death and post-mortem of the deceased was necessarily approximate and may be erroneous by two or three hours but it was difficult to believe that competent doctor would be wrong in his estimate if probable time of death by seven or eight hours was estimated---Defence theory as set up was an afterthought and improbable in view of evidence and circumstances of the case---Contention that only one accused had inflicted injuries to both the deceased persons at the same place and time due to sudden and grave provocation and that there was one incident, had no substance---Appeal was dismissed accordingly.

Mardan Ali v. Gulistan 1980 SCMR 889 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court alongwith M.A. Zaidi, Advocate- on-Record for Appellants.

Abdul Waheed Siddiqui, Advocate Supreme Court for Advocate­-General, Punjab for the State.

Date of hearing: 29th May, 2000.

2001 S C M R 630

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

GOVERNMENT OF SINDH and another----Petitioners

versus

NISAR ALI BIJARANI and 10 others----Respondents

Civil Petitions Nos.334-K to 344 of,2000, decided on 15th August, 2000.

(On appeal from the common order of the High Court of Sindh, dated 9-12-1999 passed in C.P. No.D-431, D-350, D 349, D-348, D-347, D-345, D-344, D-343, D-342 and D-341 of 1991 respectively).

Sindh Civil Servants (Regularization of Ad hoc Appointments) Act (XIX of 1994)----

----S. 3--.Constitution of Pakistan (1973), Art. 185(3)---Ad hoc appointment, regularization of---Order of regularization of ad hoc appointment was passed by the concerned Ministry and not by the Chief Minister of the Province---Contention of the Provincial Government was that Special Committee was not properly constituted and orders with regard to regularization were to be passed by the Chief Minister of the Province--­Validity---Where the appointments were made on regular basis on the recommendation of Special Committee, the Provincial Government could not be permitted to take advantage of failure of Chief Minister to perform his duties and obligations ordained by law---Order passed by High Court did not suffer from any illegality or material irregularity, therefore, was unexceptionable warranting no interference by Supreme Court---Leave to appeal was refused.

Muhammad Iqbal Khokhar v. The Government of the Punjab PLD 1991 SC 35; Ahsanullah A. Memon v. Government of Sindh 1993 SCMR 982 and S.M. Farooq v. Muhammad Yar Khan 1999 SCMR 1039 distinguished.

Aminuddin, Additional A.-G. Sindh for Petitioners.

Nemo for Respondents.

Date of hearing: 15th August, 2000.

2001 S C M R 634

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Deedar Hussain Shah and Javed Iqbal, JJ

BASHIR AHMAD----Appellant

versus

THE STATE----Respondent

Criminal Appeal No.45 of 2000, decided on 2nd October, 2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 13-9-1999 pastel in Cr. A. No. 393 of 1997).

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

----S.5(2)---Penal Code (XLV of 1860). S.161---Constitution of Pakistan (1973), Art.185(3)---Accused in his statement recorded under 5.342, 0Cr.P.C. had admitted to have received the sum of Rs.100 as remuneration for typing the application and affidavit of the first informant---Leave to appeal was granted by Supreme Court to the accused to consider the effect of his said admission on the prosecution case, when neither the . conversation between, the complainant and the accused was heard by any of the members of the raiding party nor they had seen the money changing hands.

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

-----S.5(2)---Penal Code (XLV of 1860), S.161---Charge of receiving bribe by public servant---Principles---In such-like transactions not only the payment of bribe money to the accused by the complainant is to be seem but also the conversation between them has to be heard by the members of the raiding party which is necessary to eliminate the chances of involvement of innocent persons.

Muhammad Ashraf v State 1996 SCMR 181; Arsahd Mirza v. State PLD 1988 Lah. 640; Abdul Khaliq v. The State 1985 PCr.U 86; Muhammad Mukhtar v. The State 1985 PCr.U 87; Muhammad Yousaf v. The State 1985 PCr.U 1439; Bashir Ahmed and others v. The State 1985 PCr.U 2397; Muhammad Saleem v. The State 1986 PCr.U 1615; Jangsher v. The State 1986 PCr.LJ 473 and Din Muhammad v. The State 1986 PCr. LJ 1973 ref.

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

----S.5(2)---Penal Code (XLV of 1860), S.161---Appraisal of evidence--­Neither the conversation between the accused and the complainant was heard nor the passing of the tainted money from the complainant to the accused was seen by any member of the raiding party---Mere recovery of the tainted money from the possession of accused was not enough to fix him with the gilt of having received bribe, unless he was shown to have actually accepted the same with the knowledge of its being an illegal gratification and secondly that the agent provocateur passing money to another as bribe was more than an accomplice in the crime and as such his testimony could not be accepted, muchless acted upon, without corroboration from some independent source---Solitary statement of a decoy witness was not enough to condemn a public servant in such cases---Accused was performing his duties as typist in the Office of District Education Officer and could hardly render any assistance to getting the amount of benevolent fund sanctioned in favour of the complainant which could only be sanctioned by Deputy Commissioner--- Application duly recommended by District Education Officer was never recovered which allegedly had been handed over to the accused alongwith the tainted money and, thus, it could not be proved that it was not got typed by the accused in lieu whereof an amount. of Rs.100 was paid to him---Prosecution, in circumstances, had failed to substantiate the accusation---Accused was acquitted accordingly.

Muhammad Ashraf v: State 1996 SCMR 181; Arshad Mirza Rate PLD 1988 Lah. 640; Abdul Khaliq v. The State 1985 PCr.U 86; Muhammad Mukhtar v. The State 1985 PCr.U 87; Muhammad Yousaf v. The State 1985 PCr.U 1439; Bashir Ahmed and others v. The State 1985 PCr.U 2397; Muhammad Saleem v. The State 1986 PCr.U 1615; Jangsher v. The State 1986 PCr.LJ 473; Din Muhammad v. The State 1986 PCr.U 1973; Muhammad Mehdi v. State 2000 SCMR 222 and 1973 PCr:LJ 1036 ref.

Talib H. Rizvi, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record (absent) for. Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 2nd October, 2000.

2001 S C M R 639

[Supreme Court of Pakistan]

Present: Irshad Hassan Khan, CJ. and Ch. Muhammad Arif, JJ

MARKET COMMITTEE, SHORKOT ROAD through

Administrator, District Jhang----Petitioner

versus

CANTONMENT BOARD SHORKOT CANTONMENT through

Executive Officer and another----Respondents

Civil Petition for Leave to Appeal No.2-L of 2000, decided on 27th July, 2000.

(On appeal from the judgment, dated 11-10-1999 of the Lahore High Court, Lahore passed in Writ Petition No. 1101 of 1982).

Limitation Act (IX of 1908)----

----S.5---Constitution of Pakistan (1973), Art. 185(3)----Delay, condonation of---Plea of delayed information about dismissal of Constitutional petition by the High Court---Petition for leave to appeal was filed with a delay of six days---Effect---Such plea was not a valid ground for condonation of delay--­Duty of the counsel of the petitioner to have informed the petitioner in time about the dismissal of the petition---Opposite-party could not be penalised for the negligent handling of the case by the petitioner or his counsel---Leave to appeal was refused.

Ejaz Anwar, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 27th July, 2000.

2001 S C M R 640

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das

and Deeder Hussain Shah, JJ

WARIS ALI and 5 others----Appellants

versus

THE STATE----Respondent

Criminal Appeal No. 181 of 1998, decided on 14th September, 2000.

(On appeal from the judgment/order dated 26-6-1996, of the Lahore High Court, Lahore, passed in Criminal Appeal No. 408/92 and Murder Reference No.183/92).

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

----Ss.302/149, 324/149 & 148---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to the accused to reappraise the entire prosecution evidence in order to ensure safe administration of criminal justice in the case.

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

----Ss.302/149, 324/149 & 148---Appraisal of evidence ---F.I.R. had been promptly ,lodged nominating the accused with their specific role--­Prosecution witnesses had received injuries during the incident as claimed by the prosecution which was duly supported by medical evidence---Presence of eye-witnesses who had sustained injuries at the hands of the accused could not be disputed which even had not been denied---None of the witnesses being armed with any weapon muchless deadly weapons, case was not of free fight between the parties---No injury was sustained by any of the accused persons---Ocular account of occurrence furnished by the witnesses which was corroborated by the medical evidence was not only consistent but was natural, trustworthy and confidence inspiring ---Improvements allegedly made by the injured witnesses upon their evidence at the trial were just an elaboration of the material facts divulged during the course of investigation and the same did not amount to material contradiction so as to discard their evidence---Conviction and sentences of accused were upheld in circumstances.

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

----Ss.302/149---Sentence---Mitigating circumstance---Death of the deceased was the result of cumulative act of firing as well as Chhurri blows caused by other accused which was a strong extenuating circumstance in favour of accused and he was entitled to equal treatment and lesser penalty prescribed by law---Supreme Court disapproved the approach by the Courts below to be swayed by the opinion of Investigating Officer which was neither relevant nor binding---Sentence of death of accused was commuted to imprisonment for life in the interest of justice to keep the same in line with the settled norms for administration of criminal justice.

M.A. Zafar, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab (absent) for Appellants.

Ch. Ghulam Ahmad, Advocate Supreme Court for the State.

Date of hearing: 14th September, 2000.

2001 S C M R 646

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ

TRADING CORPORATION OF PAKISTAN (PVT.)

LIMITED, KARACHI----Petitioner

versus

Messrs NIDERA HANDELSCOMPAGNIE

B.V. and another----Respondents

Civil Petition No.385-K of 1998, decided on 18th November, 1998.

(On appeal from the order/judgment, dated 4-5-1998 of the High Court of Sindh, Karachi in H. C. A No. 187 of 1996).

(a) Arbitration Act (X of 1940)---

----S. 32---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--­Constitution of Pakistan (1973), Art. 185(3)---Interim injunction--­Establishing a prima facie case ---Concurrent findings of two Courts below-- Arbitration agreement existed between both the parties---Supreme Court noticed from the orders of High Court and Courts below that the petitioner had no prima facie case, as the provision of S.32 of Arbitration Act, 1940 was attracted by the facts of the case---Courts below having exercised discretion in refusing to grant ad interim order in accordance with law, same did not call for interference---No infirmity having been pointed out in impugned orders, leave to appeal was refused by Supreme Court.

(b) Arbitration Act (X of 1940)----

----S. 33---Arbitration agreement---Validity---Party can file application under S. 33 of Arbitration Act, 1940 before competent Court for challenging the existence or validity of arbitration agreement or an award or to have the effect of either determined.

Samiuddin Sam', Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Petitioner.

G.H. Malik, Advocate Supreme Court, A.A. Khan, Advocate-on-­Record and A. Qadir Khan, Advocate for Respondents.

Date of hearing: 18th November, 1998.

2001 S C M R 650

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Ch. Muhammad Arif, Munir A. Sheikh and Qazi Muhammad Farooq, JJ

ZILA COUNCIL, LAHORE and others----Petitioners

versus

Messrs ELEGANT FOOTWEAR (PVT.) LIMITED and others----Respondents

Civil Petition for Leave to Appeal No.939-L of 2000, decided on 16th August, 2000.

(On appeal from the judgment, dated 29-2-2000 of the Lahore High Court passed in W. P. No. 16422 of 1996).

Punjab Local Government Ordinance (VI of 1979)---

----S. 137 & Sched. II, Part 11, Item 12---Constitution of Pakistan (1973), Art. 185(3)---Levy of tax and licence fee for any trade ---Zila Council, jurisdiction of ---Zila Council had imposed licence fee on the manufacture of shoes---High Court set aside the licence fee in exercise of its Constitutional jurisdiction---Contention of Zila Council was that it .was fully competent under Item 12 of Part II of Sched. II of Punjab Local Government Ordinance, 1979, to levy the taxes and prescribe licence fee for any trade, and therefore, the findings of High Court that there was no other provision in Punjab Local Government Ordinance, 1979 authorizing Zila Council to impose such a tax were not -legally correct as the said provisions had altogether been ignored while passing the judgment---Contention raised by the petitioner required examination---Leave to appeal was granted by Supreme Court to consider the contention.

Dr. M. Mohy-ud-Din Qazi, Advocate Supreme Court for Petitioners.

Kh. M. Akram. Advocate Supreme Court, Ejaz Ahmad Khan, Advocate-on-Record and Maqbool Elahi Malik, A.-G., Punjab for Respondents.

Date of hearing: 16th August, 2000.

2001 S C M R 652

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ULFAT HUSSAIN alias ULFAR NAWAZ----Appellant

versus

THE STATE----Respondent

Criminal Appeal No.265 of 1998, decided on 12th June, 2000.

(On appeal from the judgment and order, dated 20-8-1997 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.17 of 1994, Criminal Revision No.27 of 1994 and Murder Reference No.21 of 1994).

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

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused by Supreme Court in regard to quantum of sentence only.

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

----S. 302---Appraisal of evidence---Sentence, propriety of---Accused and the deceased were close relatives with no enmity between them --- Incident was not premeditated, because the accused was empty-handed and on account of a sudden flare-up had fetched a shotgun post-haste from the house of his uncle located adjacent to the land being partitioned and both the deceased had lost their lives as a result of a single shot fired by the accused---Sentences awarded to accused on two counts had become inconsistent on account of reduction of his death sentence on one count to imprisonment for life by High Court which had not been challenged by the complainant party--­Sentence of death awarded to accused by Trial Court on the other count and confirmed by High Court, was altered to imprisonment for life in circumstances---Both the sentences were to run concurrently.

Nazeer Ahmed v. The State 1999 . SCMR 396; Khuda Yar and 2 others v. The State 1992 SCMR 357; Aurangzeb v. The State 1978 SCMR 255 and Muhammad Sharif v. The State 1991 SCMR 1622 ref.

Sardar Muhammad Ishaq Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Arsahd Ali, Advocate Supreme Court for the State.

Syed Zia Hussain Kazmi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for the Complainant.

Date of hearing: 12th June, 2000.

2001 S C M R 656

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Deedar Hussain Shah, JJ

AZAL DIN----Appellant

versus

THE STATE----Respondent

Criminal Appeal No.323 of 1994, decided on 13th September, 2000.

(On appeal from the judgment of High Court of Balochistan, dated 3-3-1994 passed in Criminal Appeal No.75 of 1993).

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

----S. 302(c)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence and to consider whether the confessional statement of accused could be partly relied upon or not.

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

----S.302(c)---Appraisal of evidence---Accused had voluntarily made the confession before a Magistrate competent to record the same, but he retracted same at the time of trial---Accused having been convicted under S.302(c): P.P.C. his confession recorded by a Magistrate did not fall within the restrictions of S. 304, P.P.C: and the same was admissible and could be relied upon if the same inspired confidence---Accused was apprehended at the spot with blood-stained hatchet inside the house by police officials who were not shown to be inimical or interested witnesses and they could be relied upon---Courts below had arrived at just conclusions after having elaborately attended to every aspect of the case which were not open to any interference---Appeal was dismissed accordingly.

Abdul Zahir v. State 2000 SCMR 406; Abdus Salam v. State 2000 SCMR 338; Naseem Akhtar v. State 1999 SCMR 1744 and Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 ref.

Sh. Muhammad Naeem, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for the State.

Muhammad Ibrahim Satti, Advocate Supreme Court: Amicus curiae.

Date of hearing: 13th September, 2000.

2001 S C M R 659

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

DIAMOND INTERNATIONAL CORPORATION LTD.---Petitioner

versus

STATE BANK OF PAKISTAN through Senior Deputy Director---Respondent

Civil Petition No. 539-K of 2000, decided on 22nd December, 2000.

(On appeal from the judgment dated 28-9-2000 of the High Court of Sindh Karachi passed in Constitutional Petition No.D-176 of 1991).

Constitution of Pakistan (1973)----

----Arts. 199 & 185(3)---Constitutional petition---Counsel and client, 'relationship of ---Dismissal of Constitutional petition for absence of counsel of the petitioner---High Court refused to restore the same---Petitioner raised the plea that his counsel was busy before another High Court and could not attend the Court for at reason---Validity---Plea raised by the petitioner was without substance and was not supported either by affidavit of his counsel or other documentary proof---Even in such eventuality it was incumbent upon the counsel for the petitioner to have made alternate arrangement or would have sent any such fax message---Petitioner in such a case could not be absolved of his responsibilities of attending the Court on each and every regular date of hearing` particularly when his counsel was engaged from outside---Any negligence on the part of party's counsel would be binding on such party---High Court had rightly dismissed the matter for non-prosecution and the refusal to restore the same was also justified in view of the fact that no reasonable ground was made out by the petitioner for restoration of his petition.

Muhammad Yasin Azad, Advocate Supreme Court with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd December, 2000.

2001 S C M R 661

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

Messrs OLYMPIC INDUSTRIES through Joint Director, Korangi, Karachi---Appellant

versus

CUSTOMS, EXCISE AND SALES TAX TRIBUNAL, KARACHI, BENCH and others---Respondents

Civil Appeal No. 1766-K of 1997, decided on 15th December, 2000.

(On appeal from the judgment/order dated 13-1-1997 passed by High Court of Sindh, Karachi, in Constitutional Petition No. 1663 of 1996).

(a) Import Trade Control Order, 1991----

----Chap. 22, Note 1-A---Constitution of Pakistan ( 1973) Art. 185(3)--- Classification of imported goods---Leave to appeal was granted by Supreme Court to examine Note 1-A in Chap.22 of Import Trade Control Order, 1991.

(b) Import Trade Control Order, 1991----

----Chap. 22, Note 1-A---Classification of goods imported---Import of Denatured Ethyl Alcohol under licence---Customs Authorities disputed the head of classification and found that the goods were on the negative list of the import policy and thus liable to confiscation---Order of the Customs Authorities was assailed in Constitutional petition before High Court which was dismissed---Contention by the appellant was that even if the imported goods were classified under PCT Hdg. No.2207-2000, the same had been taken, out of prohibition on account of statutory exceptions added to Note 1-A in Chap.22 of the Import Trade Control Order, 1991---Validity--­Appellant had assured that he had imported the goods under a valid import licence and the same would be put to industrial use without causing any hazard to the human life---Supreme Court, without differing with the findings of the Authorities, on compassionate grounds and to save the appellant from big monetary loss allowed 80 drums of the goods to be released subject to payment of customs duty---Appeal was disposed of accordingly.

Appellant in person.

Ainuddin Khan, Advocate Supreme Court for Respondents.

Date of hearing: 7th December, 2000.

2001 S C M R 664

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

TARIQ HUSSAIN HASHMI and 2 others---Petitioners

versus

Master ALI AMMAR and 2 others---Respondents

Civil Petition for Leave to Appeal No.510-K of 2000, decided on 21st November, 2000.

(On appeal from the judgment dated 25-9-2000 of the High Court of Sindh in F.R.A. No.522 of 1998).

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

----S. 15(2)(vii)---Constitution of Pakistan (1973). Art. 185(3)---Bone personal need of landlord---Requirement of parents of landlord ---Ejectment application showed that the father of the landlord was to expand his business by starting the catering service---Rent Controller allowed the application and the order of ejectment of tenant was upheld by the High Court---Contention by the tenant was that the requirement of parents of landlord was not covered under the provisions of S. 13(2)(vii) of Sindh Rented Premises Ordinance, 1979---Validity---Requirement of the premises was in context to the personal need of the landlord and the same could not be read without reference to the main assertion in the ejectment application---Concurrent findings of Rent Controller and High Court on the point of requirement were in consonance with the material brought on record---Need of the parents of the landlord thus would be the need of landlord provided parents resided with the landlord.

Taj Muhammad v. Muhammad Nacem Khan and 2 others PLD 1983 Pesh. 118 and Mohiuddin Ansar v. Muhammad Arif Siddique 1991 CLC 72 ref.

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

----S. 15(2)(vii)---Expression "in good faith for his own occupation or use" appearing in S. 15(2)(vii). of Sindh Rented Premises Ordinance. 1979--­Connotation---Need of parents of landlord was included in the expression--­Law provided the benefit of provision to the spouse of the landlord or any of the children, conversely the same was silent about the need of his parents--­Words "in good faith for own occupation" could be interpreted to include requirement of the parents also-and the premises could be required in good faith for the parents also.

(c) Interpretation of statutes----

---- Not the word of any statute but its spirit that makes the law meaningful­-Spirit of law gets precedence over a hyper technical reliance upon statutory provisions---Liberal construction permits to extend meaning of statute provided the same continued to remain within the spirit or reason of the law for which it was enacted.

Syed Shahenshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate- on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 21st November, 2000.

2001 S C M R 668

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

PIR BUX---Appellant

versus

MATLOOB KHAN and another---Respondents

Criminal Appeal No.250 of 1992, decided on 30th November, 2000.

(On appeal from the judgment of the High Court of Sindh dated 28-5-1992 passed in Criminal Appeal No.57 of 1991).

(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 the complainant to analyse the evidence brought on record.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S. 417---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal by High Court--­Version put forth by the deceased in the F.I.R. against the accused in the injured condition was fully supported by the ocular evidence furnished by the prosecution witnesses which was further corroborated by the medical evidence---High Court had not appreciated the said evidence properly and its findings were recorded on non-reading and non-appraisal of the evidence which suffered from serious irregularity and illegality and were liable to be set aside---Findings of the Trial Court convicting and sentencing the accused were not only convincing but were based on proper appreciation of evidence and inspired confidence---Acquittal of accused by High Court was ,consequently set aside and the conviction and sentence recorded by Trial Court against him were restored---Benefit of S. 382-B, Cr.P.C. was, however, allowed to accused towards the computation of his sentence--­Appeal was allowed accordingly.

N.C. Motiani, Advocate-on-Record for Appellant.

Umer Farooq, Advocate Supreme Court with A.A.K. Talib, Advocate-on-Record for Respondent No. 1.

M. Suleman Habibullah, Additional Advocate-General, Sindh for the State.

Date of hearing : 30th November, 2000.

2001 S C M R 671

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

VOLKART (PAKISTAN) LTD., KARACHI---Appellant

versus

INTERAVIA PAKISTAN LIMITED, KARACHI---Respondent

Civil Appeal No. 1765 of 1997, decided on 28th November, 2000.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 4-5-1995 passed in R.F.A. No.491 of 1991).

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

----S. 8---Fair rent, fixation of---Leave to appeal was granted by Supreme Court to consider whether the Courts below were justified in fixing the fair refit of the premises effective from 1-6-1991 while the petitioners had filed application for fixation of fair rent on 17-3-1981; whether the Courts below while fixing the fair rent under S. 8 of Sindh Rented Premises Ordinance, 1979, were bound to take into consideration the rent of similar premises situated in the same or adjoining locality or the fair rent could be fixed only after taking into consideration the rent of other premises in the same building; whether S. 9(2) of Sindh Rented Premises Ordinance, 1979, was to be read as an independent provision not controlled by S. 8 and S. 9(1) of the Ordinance and whether the fair rent of the premises had been fixed by the Courts below taking into consideration the factors mentioned. in cls. (a) & (b) of S. 8(1) of the Ordinance.

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

---S. 8---Fair rent, fixation of---Considerations---Rent Controller in determining the fair rent for the first time has to take into consideration the factors given in S. 8(1) of the Sindh Rented Premises Ordinance, 1979, whereas under S. 8(2) of the Ordinance the fair rent already fixed can be revised taking into consideration the addition/improvement in the premises or additional fixture and fittings, imposition, enhancement, reduction or withdrawal of tax of other public charges notwithstanding the provisions of S. 9 of Sindh Rented Premises Ordinance, 1979.

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

----S. 8---Fair rent, fixation of---Date from which the rent is to be fixed--­Rent Controller under the law though has the power to fix any. date for payment of fair rent keeping in view the circumstances of each case yet ordinarily the fair rent is payable from the ,date of application.

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

----S. 8---Civil Procedure Code (V of 1908), O.VI, R. 17 & S. 151---Fair rent, fixation of---Consideration of -changed circumstances ---Validity--­Application of fixation of fair rent was filed by landlord in the year 1981-­Contentions of the landlord were that in the year 1991, documents relating to years 1981 to 1991, could be taken into consideration as landlord had filed application under O.VI, R. 17 read with S. 151, C.P.C. in that regard and that circumstances having changed by then, prevailing circumstances in. the locality could be taken into account or effectiveness to the fair rent should have been given from the date of the said application---Application under O.VI, R. 17 read with S. 151, C.P.C. needed favourable consideration in circumstances.

(e) Administration of justice---

----Date for deciding of disputes---General law is that the disputes are decided by reference to the date of the suit and the rights of the parties as then.

Haji Ibrahim v. S. Rehmatullah 1985 SCMR 241 and Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 ref.

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

----S. 21---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15---Appeal---Court of Appeal, powers of--Administration of justice---­Subsequent events, taking into 'consideration---Scope---Ordinary powers of Court of Appeal are to scrutinize the judgment or order under appeal by reference to facts, circumstances and record as before the Authority or Court passing the Order, supplemented by such further inquiry as may have been undertaken under S.15(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, or under S. 21(3) of Sindh Rented Premises Ordinance, 1979 and administer the law of the land at the date when the Appellate Court is administering the same---Exceptionally, in its discretion, the Appellate Court, may take note of and give effect to admitted or proved subsequent events in order to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties and mould the relief according 'to the altered circumstances in the larger interest of justice.

Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 ref.

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

----S. 8---Fair rent, fixation of---Increase in rent---Application for fixation of fair rent was filed by the landlord in year 1981---Matter remained pending in the Courts for about ten years---Landlord was not satisfied with the rent fixed by Rent Controller---Validity---In order to bring the rent of the premises at par with the prevailing rental value of the premises in the locality and keeping in view inflationary conditions in the country, recourse to S. 9 of Sindh Rented Premises Ordinance, 1979, had to be made whereby increase in rent could be made after a period of three years from the fixation of fair rent and such increase could not be more than 10 % per annum of the existing rent---Fair rent fixed by Rent Controller would remain operative for three years from April, 1981, in the present case, and keeping in view the changed circumstances, after three years the same would be increased by 25 % and after every three years up to-April, 1999 existing rent would be increased by 25 % ---Order of Rent Controller upheld by High Court was modified by Supreme Court accordingly.

Habib ullah, Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record (absent) for Appellant.

Muneeb Ahmad Khan, Advocate Supreme Court for Respondent.

Dates of hearing: 27th and 28th November, 2000.

2001 S C M R 679

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

Messrs HABIB BANK LIMITED---Appellant

versus

SULTAN AHMAD and another---Respondents

Civil Appeal No. 887 of 1995, decided on 22nd November, 2000.

(On appeal from the judgment dated 16-10-1994 passed by the High Court of Sindh in First Rent Appeal No:67 of 1992).

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

----S. 18---Change of ownership---Notice to tenant---Failure to issue such notice---Effect---Landlord who had acquired the rights of ownership and had also become the landlord, under the provisions of S.18 of Sindh Rented Premises Ordinance, 1979, was supposed to issue notice in that respect under registered cover to the tenant---Where intimation about transfer of ownership in favour of landlord had been conveyed to the tenant by means of convincing source provisions of law could be considered to have been substantially complied with.

Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170 ref.

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

----Ss. 15 & 18---Civil Procedure Code (V of 1908), 0.1, R. 10 --- Ejectment of tenant---Default in payment of monthly rent---Non-issuance of notice under S.18 of Sindh Rented Premises Ordinance, 1979, by the landlord to the tenant---Premises was purchased by the landlord during the pendency of ejectment proceedings by the former landlord---Application under O.I, R.10, C.P.C. was filed by the present landlord and- the same was not contested by the tenant---Ejectment application was filed by the present landlord on the ground of wilful default in monthly rent---Rent Controller allowed the application and the order of Rent Controller was upheld by High Court in appeal---Contention of the tenant was that no notice under S.18 of the Ordinance was given to the tenant---Validity---Tenant must have gained knowledge and the application under O.I, R. 10 C.P.C. could be treated to "be as a notice binding the tenant to start making payment of rent and factum of institution of application for ejectment would be deemed to be substantial compliance of the provisions of S.18 of the Ordinance---Tenant had acquired knowledge about transfer of ownership in favour of landlord on two occasions firstly when application under O.I, R. 10, C.P.C. was filed and secondly, when the landlord instituted the ejectment application against tenant which had given rise to the proceedings---Despite such knowledge, the rent was not deposited in favour of landlord, therefore, it was wilful default committed by tenant in making payment of rent.

Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179; Syed Azhar Imam Rizvi v. Mst. Salina Khatoon 1985 SCMR 24 and Maj. (Retd.) Muhammad Yousuf v. Mehraj-ud-Din and others 1986 SCMR 751 rel.

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

----S. 18---Change of 'ownership---Demand of title documents by tenant--­Validity---Tenant has no right to demand title documents from the landlord on receipt of notice within the meaning of S.18 of Sindh Rented Premises Ordinance, 1979---No sooner the notice is served upon the tenant or it is otherwise conveyed to him either in the judicial proceedings or by some other reliable source, the tenant is bound to accept new owner as his landlord.

Muhammad Ashraf v. Abdul Hameed and others 1982 SCMR 237(2) and Suleman and another v. M.A. Mallick 1988 SCMR 775 rel.

S. Hamid Hussain, Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record (absent) for Appellant.

Fakhar-ud-Din G. Ebrahim, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 22nd November, 2000.

2001 S C M R 683

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

GHULAM NABI---Appellant

versus

ADDITIONAL DISTRICT JUDGE, JHELUM and 47 others---Respondents

Civil Appeal No. 1479 of 1996, decided on 6th December, 2000.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 26-11-1995 passed in Writ Petition No.389 of 1994).

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

----S. 13---Civil Procedure Code (V of 1908), O.XXI, R.98 & S.47--­Ejectment of tenant---Execution proceedings---Objection petition ---Ejectment was finally decided in favour of landlord by Supreme Court---Objection petition was filed by the respondent during pendency of execution proceedings with the assertion that the property was owned and possessed by him---Objection raised by the respondent was that since he was not party to the ejectment proceedings, therefore, order of ejectment could not be executed against him---Both the Courts below concurrently dismissed the objection petition---High Court to exercise of Constitutional jurisdiction allowed the petition and decided the same in favour of the respondent--­Validity---Conduct of the respondent showed that despite the fact that all along he knew about the ejectment proceeding against the tenants but did not file any application for becoming party in those proceedings---Such act of the. respondent would show that he had no concern or interest in those proceedings---Belated/afterthought objection was mala fide ,and designed with ulterior motive to prolong the trifling litigation so as to deprive the landlord from the fruits of the ejectment order and to prolong his agony--­Where the objection petition was filed at the behest and behalf of the tenants as the same served their purpose to . prolong the occupation ,of the tenants in the premises in dispute---Order of-High Court passed in exercise of Constitutional jurisdiction in favour of the objection petitioner was set aside and that of both the Courts below was restored by Supreme Court.

Khurshid Begum v. Ghulam Kubra 1982 SCMR 90 ref.

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

----Art. 199---Civil Procedure Code (V of 1908), O.XXI, R.98 & S. 47--­Constitutional petition---Disputed question of facts---Concurrent findings of fact by the Courts below--Jurisdiction of High Court to interfere with such findings in exercise of its Constitutional jurisdiction---Scope---Objection petition was filed by the respondent during the pendency of execution proceedings with the assertion that the property was owned and possessed by him---Objection raised by the respondent was that since he was not party to the ejectment proceedings, therefore, order of ejectment could not be executed against him---Both the Courts below concurrently dismissed the objection petition---High Court in exercise of Constitutional jurisdiction allowed the . petition and decided the same in favour of the respondent--­Contention of the appellant was that High Court could not have resolved disputed questions of fact in petition under Art. 199 of the Constitution--­Validity---Where the questions raised in the objection petition were essentially questions of facts and the same were adequately resolved by the two Courts below, High Court in its Constitutional jurisdiction could not interfere with the concurrent findings of facts supported by evidence on record---High Court in its Constitutional jurisdiction had to see whether the Court or the Tribunal' while adjudicating the matter before it, had the jurisdiction to adjudicate the same and they had not transgressed limits of its lawful .authority---High Court could not act as an Appellate Court in Constitutional jurisdiction---Both the Courts below after proper appreciation of evidence had dismissed the objection petition, hence, such judgments were not open to any exception in Constitutional jurisdiction in circumstances.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Subah Sadiq Bhutta, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

Date of hearing: 6th December, 2000.

2001 S C M R 688

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Deedar Hussain Shah, JJ

Messrs AL-KARAM TRAVELS (PVT.) LTD. and others---Appellants

versus

EAST WEST INSURANCE CO. LTD.---Respondent

Civil Appeal Nos. 1627 to 1652 of 1999, decided on 1st February, 2001.

(On appeal from the judgment/order, dated 24-8-1999, of the High Court of Sindh, Karachi, passed in F. R. As. Nos. 165, 166, 170, 173, 212 to 214, 216 to 218, 174 to 182, 184 to 198, 244 and 261, all of 1996).

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

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Failure to specify about space required by the landlord for its needs---Eviction of large number of tenants---Effect---Leave to appeal was granted by Supreme Court to consider that the landlord had failed to establish its bona fides and that it required the entire building in good faith for its occupation, inasmuch as the landlord's managing director, who appeared as a witness; was neither aware of the built-up area of the building nor could specify the additional space required by the landlord for its offices, such information was vital for determining the actual need of the landlord and its bona fides; that during the pendency of the eviction proceedings the landlord purchased another building in the same city but failed to explain as to why the additional accommodation would not be enough to meet its requirements that the eviction of such large number of tenants at the same time was not justified in law.

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

----S. 15---Bona fide personal need of landlord---Concurrent findings of fact by the Courts below---Neither there was any inconsistency between the pleadings and evidence of the landlord, nor the testimony of its witnesses had been shaken in the cross-examination---Tenants failed to produce evidence in rebuttal to disprove the case of the landlord who had proved its bona fides for personal use---Rent Controller as well as the High Court found that the property in question was required by the landlord for its. personal bona fide need---Validity---Where there was no irregularity or illegality in the judgments of the two Courts below and the landlord had proved its bona fide for personal use of the demised premises before Rent Controller which was affirmed by the High Court appeal was dismissed by Supreme Court.

Messrs Tiger Wire Product Ltd. v. S. Abrar Hussain 1983 SCMR 402; Abdul Razzaq and others v. Muhammad Aslam and others 1995 SCMR 201; Rajab Ali v. Darius B. Kandawalla and another PLD 1984 Kar. 14; Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Pirzada Rafiq Ahmad v. Chaudhry Abdul Rehman 1980 SCMR 772; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Muhammad Shoaib Alam v. Muhammad Iqbal 2000 SCMR 903; Ishratullah Siddiqui v. Alibhoy 1996 SCMR 1833; Unisam Enterprises v. Bank of Punjab 1999 SCMR 1119 and Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613 rel.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Appellant (in C. As. Nos. 1627 and 1628 of 1999).

Syed Najmul Hasan Kazmi, Advocate Supreme Court and Ch. M.Z. Khalil, Advocate-on-Record for Respondent/Company (in all Appeals).

Niaz Ahmad Khan, Advocate Supreme Court and M.A.I. Qami, Advocate-on-Record (absent) for Appellants. (in C.As. Nos.1629 to '1631, 1639 to 1649 and 1652 of 1999).

Hafz Abdul Baqi, Advocate-on-Record for Appellant (in C.A. No. 1632 of 1999).

Niaz Ahmad Khan, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Appellants (in C.As. Nos. 1633 to 1637 of 1999).

Nasarullah Awan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Appellant (in C. A. No. 1638 of 1999).

M. Ziauddin Qureshi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record (absent) for Appellants (in C.As. Nos.1650 to 1651 of 1999).

Date of hearing: 4th January, 2001.

2001 S C M R 693

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

SUFAIDA KHAN and others---Appellants

versus

MUHAMMAD IQBAL and others---Respondents

Civil Appeal No. 820 of 1994, decided on 30th November, 2000.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 29-5-1993, passed in R.S.A. No.2 of 1973).

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

----S. 8---Limitation Act (IX of 1908), Art. 120---Constitution of Pakistan (1973), Art. 185(3)---Suit for possession ---Limitation---Custom--Applicability---Limited owner---Transferring of ancestral property to wife through will---Validity---Contentions of the petitioner were that the suit was barred by time under Art. 120 of Limitation Act, 1908; that the properties were governed by the customary law and according to the custom and usage, the owner could riot have transferred the property through a will to his wife and that even otherwise the will made by the owner was invalid and illegal and no valid transfer could be made in favour of his wife---Leave to appeal was granted to consider the contentions raised by the petitioner.

Customary Law of Peshawar District by J.G. Lorimer, Political Officer, TOCHI, VOl. XVII, Questions Nos.92, 93, published by Government Stationery and Printing, North-West Frontier Province, Peshawar 1934; Mst. Niazmana and others v. Mir Sadda Khan and others Civil Judgment No.8, Judicial Record, 1903, P.30; Mir Baz v. Shah Pasand Civil Judgment No.87, Judicial Record 1917, p. 413 and Ghulam Khan v. Ghulam Haider Khan Civil Judgment No. 121, Judicial Record, 1923, p.670 ref.

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

----S. 8---Custom (North West Frontier Province)---Suit for recovery of immovable property---Ancestral property---Transfer of such property to limited owner through will---Disputed property was ancestral property which was transferred on the basis of will of the owner to the widow after the death of the owner---Widow alienated the suit property to the defendants through gift deed---Plaintiffs assailed the transfer in favour of the defendants in civil suit on the ground that the parties were governed by Riwaj (custom) and the widow being limited owner could not alienate the property in favour of the defendants---Trial Court dismissed the suit and the judgment was upheld by the High Court---Validity---Custom (Riwaj) prevailing in North-West Frontier Province showed that no person could transfer the ancestral property to anybody---Husband could not will his landed property in favour of his wife, hence the will made by the husband was invalid and void---Wife, after the death of her husband, succeeded as a limited owner of the property and widow, under custom, would succeed to the estate of her late husband to the extent of possessory rights which could remain with her till her death or till her remarriage and she would not inherit as absolute owner---Where the will was found to be invalid, the gift deed executed by the widow in favour of defendants was also without any lawful foundation as she being a widow could not under the custom alienate the property through gift in favour of any body---Judgment and decree of High Court were set aside and suit was decreed.

Ghulam Ali v. Ghulam Sarwar PLD 1990 SC 1; Haji v. Khuda Yar PLD 1987 SC 453; Anwar Muhammad and others v. Sharif Din and others 1983 SCMR 626; Mst. Namdar and 3 others v. Mst. Sahibzada and 2 others 1998 SCMR 996; (Thakur) Nirman Singh and others v. Thakur Lal Rundra Partab Narain Singh and others AIR 1926 PC 100 and Ghulam Ali's case PLD 1990 SC 1 and Mst. Fazal Jan's case PLD 1992 SC 811. ref.

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

----S. 8--Limitation Act (IX of 1908), Art. 120---Suit for recovery of possession---Limitation---Ancestral property---Transfer of such property to limited owner through will---Disputed property was ancestral property which was transferred on the basis of will of the owner to his widow after his death---Widow alienated the suit property to the defendants through gift deed---Plaintiffs assailed the transfer in favour of the defendants in civil suit on the ground that the parties were governed by Riwaj (custom) and the widow being limited owner could not alienate the property in favour of the defendants---Validity---Widow having died in year 1966, and the suit having been filed in the year 1969, the suit was within period of limitation.

M: Sardar Khan, Senior Advocate Supreme Court for Appellants. Ghulam Naqshband, Advocate Supreme Court for Respondents.

Date of hearing: 30th November, 2000.

2001 S C M R 701

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

GOVERNMENT OF SINDH---Petitioner

versus

SALEEM RAZA---Respondent

Civil Petitions Nos. 460 and 461-K of 2000, decided on ,20th December, 2000.

(On appeal from the judgment dated 20-7-2000, passed in Appeals Nos.324 of 1998 and 57 of 1999 of the Sindh Service Tribunal, Karachi).

Constitution of Pakistan (1973)----

----Art. 212(3)---Sindh Service Tribunals Act (XV of 1973), S.4--­Reinstatement---Civil servants, after they were found eligible, were appointed for the-posts of Excise and Taxation Inspector---Such appointees had undergone departmental training, qualified departmental examination and their appointments were regularised---Civil servants, two years after their appointments were terminated on the ground that their appointments were made in violation of Rules prescribed by Sindh Civil Servants Act, 1973--­Civil servants were ordered to be reinstated by the Service Tribunal on their appeals---Validity---Contention of the Authorities that the appointments were made on political basis---Authorities having fail-ed to produce minutes of Departmental Selection Committee and other record about the selection such contention was repelled---Authorities on the same material and same allegation had dismissed the appeal/representation of the present civil servants while had set aside order of termination in respect of 25 other such Inspectors and had allowed their appeals which was a clear case of discrimination and double standard---Supreme Court found no justification to interfere with the findings of the Service Tribunal in circumstances and dismissed the appeal of the Authorities.

Suleman Habibullah, Additional Advocate-General, Sindh for Petitioner (in both Petitions).

Nemo for Respondents (in both Petitions).

Date of hearing: 20th December, 2000

2001 S C M R 704

[Supreme Court of Pakistan]

Munir A. Sheikh and Javed Iqbal, JJ

MUHAMMAD IRSHAD and others---Appellants

versus

CHAIRMAN, EVACUEE TRUST BOARD and others---Respondents

Civil Appeals Nos. 1263, 1264 and 1265 of 1998, decided on 28th November, 2000.

(On appeal from the judgment dated 11-3-1997 of the Lahore High Court passed in Writ Petitions Nos. 14434 of 1996 and 5092 of 1997).

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

----S. 17---Limitation Act (IX of 1908), S.5---Revision---Condonation of delay---Leave to appeal was granted to decide whether the High Court should have remanded the case to Federal Government for deciding the revision petitions afresh after considering the applications filed by the revision petitioners for condonation of delay.

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

----S. 17---Expressibn "aggrieved person"---When not applicable---Where the person had not disclosed about any interest personal to him in the property in dispute, such person was not "aggrieved person" as contemplated by S. 17 of Evacuee Trust Properties (Management and Disposal) Act, 1975.

Mst. Inayat Begum v. Joint Secretary, Ministry, of Religious Affairs, Islamabad and 4 others PLD 1993 Lah. 63 ref.

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

----S. 17---Revision---Expression "aggrieved person" --Tenant of evacuee, property---Dispute about status of the property---Tenant of the property was not an aggrieved person so far the dispute about the status of the property itself was concerned.

Master Chiragh Din v. Abdul Hakim and another PLD 1974 Lah. 370 ref.

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

----S. 17---Revision---Maintainability---Where the appellants were neither interested nor aggrieved persons, their revision petitions were liable to be dismissed.

(e) Evacuee Trust Properties (Management and Disposal) Act (X1fl of 1975)----

----S. 17---Revision---Suo motu powers, exercise of---Federal Government had examined findings recorded by Chairman of Evacuee Trust Board but proceeded mechanically mainly on the agreement of counsel for the petitioners and the Board to remand the case---Validity---Where, in exercise of suo motu revisional powers, the merits of the case had not been examined and the allottees/transferees had not been heard in detail before any order to their prejudice could be passed, as per mandatory terms of S. 17 of Evacuee Trust Properties (Management and Disposal) Act, f975, such order was never intended nor the Federal Government decided to exercise suo motu powers.

(f) Displaced Persons (Land Settlement) Act (XLVII of 1958)----

----Ss. 10 & 11---Double allotment---- Transfer of verified claims from one area to another---Allotment of lands in different villages---Effect---Normal phenomenon under the settlement laws that the verified claims of the claimants had continuously been transferred from one area to another for their satisfaction---Mere allotment of land in favour of a claimant in different villages would not by itself be a ground to urge that it was a case of double allotment; for till such time, the entire claim of a claimant was satisfied by allotment of lands equivalent to his entitlement against the said claims, allotment could be made to him in different villages wherever the evacuee lands were available---Any such allotment of claimants in different villages was not double allotment.

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

----S. 10---Evacuee trust property---Jurisdiction of Chairman ---Scope--?Property in dispute was an evacuee trust urban agricultural property and stood excluded from the compensation pool but was allotted under the settlement laws---Effect---Such types of allotments were to be examined by the Chairman under S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, in order to find out whether the same had been utilised bona fidely and whether other conditions were fulfilled.

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

----S. 10---Displaced Persons (Land Settlement) Act (XLVII of 4958), Pre?amble---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Preamble---Expression "Permanent Transfer Deed (P.T.D.)" as used in S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975----Object and scope---To deal with the allotment/transfer of evacuee agricultural land both in the rural and urban areas Displaced Persons (Land Settlement) Act, 1958, was promulgated, whereas for the disposal of the urban properties, Displaced Persons (Compensation and Rehabilitation) Act, 1958 was promulgated---For disposal of agricultural property whether urban or rural, the expression used in Displaced Persons (Lands Settlement) Act, 1958, dealing with the same and the scheme framed thereunder was temporary allotments and confirmed allotments---Provisions of Displaced Persons (Lands Settlement) Act, 1958 and the scheme framed thereunder ,provided that initially, the allotment of land both rural and agricultural to a claimant was to be made on temporary basis---Proposal for confirmation of the said allotment in favour of the allottee against his verified claim was required to be made on the relevant Khata of RL-11 and fourteen days were to elapse between the making of the said proposal and its confirmation so that if any person had any objection could come forward and object to the same because there might be such persons whose satisfied, claims prior to the claim of the proposed allottees were pending in the villages for allotment, and after fourteen days, such allotment was to be confirmed by the officer concerned and after the confirmation under the Displaced Persons (Lands Settlement) Act, 1958, and the Rules, such an allottee was deemed to have been permanently transferred the land as absolute owner thereof, therefore, expression "P.T.D ' used in S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, in relation to urban agricultural land disposed of under Displaced Persons (Lands Settlement) Act, 1958, would be an order of confirmation of the allotment of the land and was to be construed as such--In case of transfer of other urban properties such as shops, building sites, residential buildings, etc. "P.T.D." was required to be issued, therefore, the expression "P.T.D." used in S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was deemed to have been used in respect of such properties---Cases of all evacuee properties which had been utilised by Settlement, Department and had been permanently settled/transferred under the settlement laws were covered by the provisions of Evacuee Trust Properties. (Management and Disposal) Act, 1975.

Khurshid Zaman and others v. Minister for Social Welfare and other 1992 ALD 429 and Federal Government of Pakistan and another v. Khurshid Zaman Khan and others 1999 SCMR 1007 ref.

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

-----Ss. 10 & 17-Revision---Suo motu jurisdiction of Federal Government--?Objection to allotment---Raising of such objection by persons who were not "aggrieved persons" under the provisions of S. 17 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Disputed land was allotted to the respondents against the verified claims and subsequently it transpired that the land was evacuee trust property and Chairman of Evacuee Trust Properties. under the provisions of S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975 declared that the land had been bona fidely utilised under the Settlement laws---Federal Government in exercise of suo motu powers under S. 17 of Evacuee Trust Properties (Management arid Disposal) Act. 1975, set aside the order of the. Chairman and case was remanded to him for decision afresh---High Court in Constitutional jurisdiction, upheld the order of Federal Government---Validity---Legal consequence of order passed by the Chairman as per operation of S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was that the property stood transferred to the Chief Settlement Commissioner as if the same was part of compensation pool from the very start and the Chairman was divested of any jurisdiction or control over the said property---Dispute which would require to be resolved in the present case would be as to disposal/transfer under which of the two Settlement laws made in favour of the contending parties of the property in dispute on the proof of transfer of the same would take preference which was left to be decided by the Court of general jurisdiction under the general law---Both the parties were at liberty to defend their respective titles in the Court of general jurisdiction.

Mian Nasratullah. Senior Advocate Supreme Court and Muhammad Bashir Malik, Advocate Supreme Court for Appellant (in Civil Appeal No. 1263 of 1998)?.

Ch. Fazal Hussain, Advocate Supreme Court for Respondents Nos. l and 2 (in Civil Appeal No. 1263 of 1998').

S. M. Zafar, Senior Advocate Supreme Court, Ahmad Awais, Advocate Supreme Court and M.S. Khattak. Advocate-on-Record for Respondents Nos.3 to 19 (in Civil Appeal No. 1263 of 1998).

Amjad Hussain Syed. Advocate Supreme Court for Appellants (in Civil Appeal No. 1264 of 1998).

S.M. Zafar, Senior Advocate Supreme Court, Ahmad Awais, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. l to 17 (in Civil Appeal No. 1264 of 1998).

Ch. Fazal Hussain, Advocate Supreme Court for Respondents Nos. 18 and 19 (in Civil Appeal No. 1264 of 1998).

Ch. Fazal Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No. 1265 of 1998).

M.S. Zafar, Senior Advocate Supreme Court, Ahmad Awais, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record, for Respondents (in Civil Appeal No. 1265 of 1998).

Date of hearing: 28th November, 2000.

2001 S C M R 722

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

WAPDA----Petitioner

versus

M.A. RASHID ----Respondent

Civil Petition for Leave to Appeal No.148-K of 1998, decided on 8th July, 1998.

(From the judgment/order of High Court of Sindh, Karachi, dated 5-12-1997 in Civil Revision No.63 of 1997).

Limitation Act (IX of 1908)---

----S.5---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal was barred by 24 days ---Condonation of delay---Delay in filing of petition was stated to be on account of late sanction received from the Head Office---High Court passed its order on 5-12-1997 and the certified copies were applied on 12-2-1998---Effect---No plausible explanation was forthcoming for not applying for the certified copy of the order of High Court dated 5-12-1997 until 27-2-1998---Late sanction received from Head Office for filing of the petition was no ground for condoning the delay--­Where decree passed by the Trial Court was not void, it was not a case for condonation of delay---Leave to appeal was refused.

Pakistan v. Muhammad Yaqoob Butt PLD 1963 SC 627 distinguished.

Siddiq Mirza, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 8th July, 1998.

2001 S C M R 724

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Munir A. Sheikh; JJ

SHAHZAD SHAHEEN SHIBLI----Petitioner

versus

MUSLIM COMMERCIAL BANK LTD. through President and 5 others----Respondents

Civil Petition for Leave to Appeal No.1624-L of 1999, decided on 28th October, 1999.

(On appeal from the order, dated 24-8-1999 of the Lahore High Court, Lahore passed in W. P. No .15192 of 1999).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Petition for leave to appeal---Interlocutory order passed by a competent Court---Interference by Supreme Court---High Court, in exercise of Constitutional jurisdiction, passed an interim stay order on petition filed by the respondent---Petitioner assailed the interlocutory order on the basis of principle laid down by Supreme Court in case entitled Habib Bank Limited and others v. Syed Zia-ul-Hassan Kaznu (1998 SCMR 60)---Validity---Constitutional petition in which the interim order was passed had not been admitted to full hearing and merely pre-admission notice had been issued---Supreme Court declined to enter upon the discussion whether the case fell within the principle laid down in the judgment relied upon by the petitioner and observed that petitioner might make an application before High Court for modification or vacation of interim order and directed the High Court to hear the petition within 15 days if so filed.

Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and

Mehmood-ul-Islam, Advocate-on-Record (absent) for Petitioner.

Farooq Zaman Qureshi, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record (absent) for Respondents.

Date of hearing: 28th October, 1999.

2001 S C M R 726

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Deedar Hussain Shah, JJ

NAWAZ ALI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.345 of 1998, decided on 18th September, 2000.

(On appeal from the judgment/order, dated 1-12-1997, of the High Court of Balochistan, Quetta, passed in M.R. No. 14 of 1997).

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

----S. 302/34---Constitution of Pakistan (1973), Art. 185(3)---Sentence--­Legality of---Neither any motive had been attributed to the accused for the murder of the deceased nor had it been established in the Trial Court, which would have an ultimate bearing on the legality of sentence of death to both the accused---Leave to appeal was, therefore, granted to examine only the legality of the death sentence awarded to the accused.

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

----S.302/34---Appraisal of evidence---Sentence---Legality of---Deceased had suffered eight injuries caused by "Chhura" and revolver and he according to medical evidence had died on account of the injuries caused to the vital organ (heart), shock and haemorrhage---Injuries had suggested that the deceased was done to death in a very brutal manner---Lack of motive altogether or inability of prosecution to prove motive for the murder did not affect the imposition of normal penalty of death where the prosecution had otherwise proved its case against the accused beyond reasonable doubt---Absence of motive and the fact of the accused being brothers inter se were no grounds in law for awarding lesser punishment---Sentence of death awarded to accused was upheld accordingly.

Ahmad Nisar v. The State 1977 SCMR 175 and Talib Hussain and others v. The State 1995 SCMR 1776 ref.

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

----S.302/34---Sentence---Lack of motive by itself not a mitigating circumstance---Lack of motive altogether or inability of prosecution to prove motive for murder does not affect the imposition of normal penalty of death in a murder case, if the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt.

Ahmad Nisar v. The State 1977 SCMR 175 and Talib Hussain and others v. The State 1995 SCMR 1776 ref.

Muhammad Javaid Aziz Sandhu, Advocate Supreme Court for Appellants.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 18th September, 2000.

2001 S C M R 731

[Supreme Court of Pakistan]

Present: Ajmal Mian, Munawar Ahmed Mirza and Khalil-ur-Rehman Khan, JJ

Justice (Retd.) DORAB PATEL through his Legal Heirs and others----Petitioners

versus

KARACHI BUILDING CONTROL AUTHORITY and others----Respondents

Civil Petitions for Leave to Appeal Nos.90-K and 91-K of 1997, decided on 29th May, 1997.

(On appeal from the orders both dated 10-4-1997 of the High Court of Sindh, Karachi, passed in Constitutional Petitions Nos.D-549 of 1997 and D-550 of 1997).

Karachi Building and Town Planning Regulations, 1979-

----Para.2(i)(e), Sched.G---Constitution of Pakistan (1973), Art.185---Inter­locutory order---Appeal against---Interim stay of construction---Construction of multi-storeyed building---Petitioners alleged in their Constitutional petitions that respondents were raising disputed construction in violation of approved building plans and building Regulations---Plea raised by respondents was that the construction was in accordance with the approved plans and was in accordance with para.2(i)(e), Sched.G of Karachi Building and Town Planning Regulations, 1979---High Court refused to grant interim injunction for the reason that the disputed buildings were structurally completed---Validity---Supreme Court refused to stay the construction at such stage but restrained the respondents from transferring or creating any change or encumbrance on the disputed buildings till the disposal of the Constitutional petitions pending in High Court---Petition for leave to appeal was converted into appeal and the same was disposed of accordingly.

Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 and Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 ref.

Liaqat Merchant, Advocate Supreme Court, Naeem-ur-Rehman, Advocate Supreme Court, Abdul Qadir Khan, Advocate and A. Aziz Khan, Advocate-on-Record for Petitioners.

Ghulam Hussain Abbasi, Senior Advocate Supreme Court, Muhammad Farogh Naseem and M. S. Ghaury,. Advocate-on-Record for Respondent No. 12.

Date of hearing: 29th May, 1997.

2001 S C M R 734

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Sh. Riaz Ahmed and Rashid Aziz Khan, JJ

ABBAS ----Petitioner

versus

SESSIONS JUDGE, FAISALABAD and 2 others----Respondents

Criminal Petition No.640-L of 1999, decided on 24th May, 2000.

(On appeal from the judgment of Lahore High Court, dated 18-11-1999 passed in Criminal Miscellaneous No.2004/M of 1999).

Penal Code (XLV of 1860)--

----S. 302/34---Constitution of Pakistan (1973), Art. 185(3)---No provision of law existed under which trial of accused could be stayed till the arrest of the co-accused, against whom evidence could be recorded under S.512, Cr.P.C.---Even otherwise, if co-accused did not appear for ten years, it did not mean that accused could not be tried for such a long period---Law also did not provide for holding any judicial inquiry qua the accused---Leave to appeal was declined to accused, accordingly.

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

Miss Yasmeen Sehgal, A.A.-G., Punjab and C.M. Latif, Advocate Supreme Court for the State.

Date of hearing: 24th May, 2000.

2001 S C M R 736

[Supreme Court of Pakistan]

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

ATTA ULLAH KHAN----Petitioner

versus

MUTI ULLAH KHAN and 10 others----Respondents

Criminal Petition No.312-L of 1997, decided on 24th December, 1998.

(On appeal from the judgment, dated 28-7-1998 of the Lahore High Court, Lahore in Criminal Appeal No. 1242 of 1988, Criminal Appeal No. 1243 of 1988 and Criminal Revision No.713 of 1988).

Penal Code (XLV of 1860)-

----S.302/34---Constitution of Pakistan (1973), Art. 185(3)---Sentence, enhancement of---Non-recording of reason for---When ineffectual---High Court's judgment, no doubt, suffered from legal infirmity on account of non­-recording of the reasons for altering the sentence of accused. from death to imprisonment for life, but in view of the factual position that there was cross-firing between the accused party and the complainant party, imposition of the lesser sentence than that of death on the accused was justified---Grant of leave to the complainant on the ground of the abovementioned legal infirmity, therefore, could not serve any purpose---Leave to appeal was declined accordingly.

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

Nemo for Respondents.

24th December, 1998.

2001 S C M R 737

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Iftikhar Muhammad Chaudhry, JJ

Dr. MAQBOOL AHMED ---- Petitioner

versus

PROVINCE OF THE PUNJAB through Collector, District Rahimyar Khan-and others----Respondents

Civil Petition No. 1813-L of 2000, decided on 28th July, 2000.

(On appeal from the order, dated 5-6-2000 passed by Lahore High Court, Bahawalpur Bench in Civil Revision No.427 of 1999/BWP).

Civil Procedure Code (V of 1908)---

----O.XXXIX, R.1 & 2---Constitution of Pakistan (1973), Art. 185(3)--­Interim injunction, grant of---Prima facie case---Concurrent findings of fact by the Courts below---Observations made by the Courts during the interim injunction---Effect---Petitioner after filing of the suit, raised the plea of gift deed made in favour of his grandmother---Such plea was not accepted by any of the Courts below for the purpose of granting interim injunction--­Validity---High Court rightly observed that though the gift was alleged to have been made in the year 1939 but no entry whatsoever had been got effected in the Revenue Record and such bald statement of the petitioner as to gift of suit-land, etc., was not considered sufficient to hold that the petitioner had prima facie arguable case---When the balance of convenience was also in favour of the petitioner, such findings did not suffer from any illegality---Orders passed by the Courts below were perfectly in accordance with law laid down by the superior Courts in relation to matters regarding issuance of temporary injunction in the exercise of discretionary jurisdiction---Nothing said about the matter in the judgment would be taken as findings recorded by the Courts on merits of the case---Suit would be decided on its own merits uninfluenced by the observations as the same were tentative in nature made merely to find out whether petitioner had a prima facie arguable case for the purpose of issuance of temporary injunction--­Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th July, 2000.

2001 S C M R 739

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rashid Aziz Khan, JJ

MUHAMMAD IQBAL----Petitioner

versus

GHULAM SARWAR, ASJ, KASUR and another----Respondents

Criminal Petition No. 311-L of 2000, heard on 28th June, 2000.

(On appeal from the order of Lahore High Court, Lahore, dated 24-5-2000 passed in Criminal Miscellaneous No. 135-T of 2000).

Criminal Procedure Code (V of 1898)---

----S.526---Constitution of Pakistan (1973), Art. 185(3)---Complainant's plea that he having no confidence or faith in the Trial Court, his case should be transferred to some other Court, had been raised during the arguments and being a new ground could not be considered in the present proceedings--­Non-compliance of the direction issued by Supreme Court to conclude the trial within a period of six months was not on account of inaction of the Trial Court--Trial Court, therefore, was again directed to conclude the trial within two months positively and report compliance---Leave to appeal was refused by Supreme Court to the complainant with the aforesaid observations.

Shahid Hussain Kadri, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nasim Sabir, Additional A.-G. and A.H. Masood, Advocate Supreme Court for the State.

Date of hearing: 28th June, 2000.

2001 S C M R 741

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J. and Qazi Muhammad Farooq, J

Messrs ISLAMABAD WOOLLEN MILLS LTD. ---Petitioner

versus

Messrs AAJ PRIVATE LTD.---Respondent

Civil Petition No. 1254 of 1999, decided on 15th March, 2000.

(On appeal from the order dated 24-5-1999 passed by the Lahore High Court, Lahore, in S.A.O. No.27 of 1999).

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

----S.13---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Default in payment of rent---High Court remanded the case to the Lower Appellate Court for considering the grounds raised by the landlord---Contention by the landlord was that as the evidence regarding the grounds was available on record the matter should have been decided -by the High Court itself---Validity---Contention of the landlord was not devoid of force---Tenant stated that pursuant to the decision of the High Court, Lower Appellate Court had heard the case and the same was fixed for orders--­Supreme Court directed the Lower Appellate Court to announce the order up to a specified date---Order of the High Court was not interfered with by the Supreme Court in circumstances.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Farooq Zaman Qureshi, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate-on-Record (absent) for Respondent.

Date of hearing: 15th March, 2000.

2001 S C M R 742

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Munir A. Sheikh, JJ

Mst. INAYAT BIBI---Petitioner

versus

FAQIR MUHAMMAD. and others---Respondents

Civil Petition for Leave to Appeal No.838-L of 1998, decided on 16th December, 1999.

(On appeal, from the judgment dated 28-4-1998 of the Lahore High Court, Lahore, passed in Writ Petition No.537 of 1985).

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S.10---Limitation Act (IX of 1908), Art. 148---Constitution of Pakistan (1973), Art.185(3)---Redemption of mortgaged land without payment of mortgaged money---Effect---Predecessor-in-interest of the petitioner mortgaged the property in dispute in favour of the predecessor-in-interest of the respondent---Mortgagee was in possession of the land---Collector on application of the petitioner redeemed the property without payment of the mortgage amount, while the mortgage was subsisting-=-Appeal filed by the respondent was allowed by the Commissioner and the order of the Collector was set aside---Board of Revenue accepted the revision and the order of the Collector was restored---High Court, in exercise of Constitutional jurisdiction set aside the order passed by the Board of Revenue and the order of the Commissioner was restored---Validity---Where the mortgage was still subsisting, provisions of S.10 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, were applicable for extinguishment of mortgage---Such provisions were not applicable with regard to the mortgage for the redemption of which period of limitation prescribed under Art. 148 of Limitation Act, 1908, had already expired and the same would not be deemed to be a subsisting mortgage---Collector while passing the order for extinguishment of mortgage did not correctly apply the law and his order was without lawful authority and the same was rightly so declared by the High Court---Order passed by the High Court not suffering from any legal infirmity, leave to appeal was refused by Supreme Court.

Muhammad Akbar Khan v. Motai AIR 1947 PC 322; PLD 1965 W.P. (Rev.) 67 and PLD 1972 Lah. 682 ref.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Date of hearing: 16th December 1999.

2001 S C M R 745

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

MUNICIPAL COMMITTEE, SADIQABAD---Petitioner

versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No.61-L of 2006, decided on 13th July, 2000.

(On appeal from the judgment dated 3-11-1999 passed by the Lahore High Court, Lahore in I.C.A. No.983 of 1998).

West Pakistan Land Revenue Act (XVII of 1967)...

----S.163---Law Reforms Ordinance (XII of -1972), S.3---West Pakistan Board of Revenue Act (XI of 1957), S.8---Civil Procedure Code (V of 1908); O.I, R.9--Constitution of Pakistan (1973), Art. 185(3)---Allotment of plot, cancellation of ---Suo motu review by Board of Revenue ---Non-joinder of necessary parties---Conflicting judgment of High Court ---Effect--­Leave to appeal was granted to consider, whether order passed by Member, Board of Revenue in suo motu review was administrative order or a judicial order and that against such order any appeal, revision or review was competent under West Pakistan Board of Revenue Act, 1957, or any other provision of law; whether against the order passed by High Court, Intra­ Court Appeal was not competent in view of the law laid do by Supreme Court in different cases; if so, to what effect and the petition for leave to appeal could be considered against .order passed by High Court in Constitutional petition subject to question of limitation; whether the petitioners had been rightly non-suited by High Court for non-joinder of necessary parties; whether the High Court had rightly directed implementation of an order while disposing of one Constitutional petition when the operation of the same order had been stayed by the same High Court while admitting other Constitutional petition and whether Member, Board of Revenue had passed the order in suo motu review with lawful authority.

PLD 1984 SC 344; PLD 1985 SC 107 and 1999 SCMR 1357 ref.

Ali Ahmad Awan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents Nos. 1 and 2.

M. Asadullah Siddiqui, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Respondents Nos. 3 and 4.

Date of hearing: 12th and 13th July, 2000.

2001 S C M R 750

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Mian Muhammad Ajmal and Deedar Hussain Shah, JJ

WAZIR KHAN and 8 others---Appellants

versus

SARDAR ALI and 25 others---Respondents

Civil Appeal No.662 of 1994, decided on 21st September, 2000.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 15-2-1993 passed in C.M. No.224/1998-BWP in R.S.A. No.66 of 1985).

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

----Ss.12(2) & 151---Constitution of Pakistan (1973), Art. 185(3)---Decree, setting aside of---Inherent jurisdiction of High Court---Application under 5.12(2), C.P.C. for setting aside of decree was converted into application under S.151, C.P.C.---Contention of petitioner was that in view of the specific provision for setting aside the decree, inherent jurisdiction of High Court could not have been exercised---Leave to appeal was granted to examine the contention.

(b) Arbitration Act (X of 1940)---

----Ss.26-A & 17---Award---Failure to record reasons for award---Effect--­Provisions of S.26-A, Arbitration Act, 1940 were mandatory and if the award had been given without recording any reason; the Court would remit the same to the arbitrator---Award having been given without recording any reason, should have been remitted to the arbitrator to give reasons---Where mandatory provisions of Ss. 17 & 26-A of Arbitration Act, 1940, had not been complied with, the award was invalid and not maintainable.

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

----Ss.12(2) & 151---Arbitration Act (X of 1940), Ss. 17 & 26-A---Phrase "nothing in this Code shall be deemed' to limit or otherwise affect the inherent powers of the Court appearing in S.151, C.P.C.---Scope--­Application under S.12(2), C.P.C. to set aside decree was treated as one under S.151, C.P.C. by High Court and decree was set aside---High Court recalled its earlier order passed in second appeal and allowed the application on the ground that the award in the instant case was violative of Ss. 17 & 26-A of Arbitration Act, 1940---Validity---High Court under S:151, C.P.C. was empowered to make such orders as might be necessary for the ends of justice or to prevent the abuse of the process of Court notwithstanding the codal procedure---Where earlier order of High Court in terms of the award which being violative of Ss. 17 & 26-A of Arbitration Act,. 1940 was illegal and not maintainable, High Court in circumstances had wide powers to convert the application under S.12(2), C.P.C. into application under S.151, C.P.C. so as to undo the wrong---High Court, therefore, had correctly applied S.151, C.P.C. to the case.

Muhammad Munir Peracha, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record (absent) for Appellants.

Muhammad Anwar Bhaur, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Respondents Nos.2 and 3.

Date of hearing: 9th October, 2000.

2001 S C M R755

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rashid Aziz Khan, JJ

SAFDAR ALI ---Petitioner

versus

GHULAM AHMAD and 4 others---Respondents

Civil Petition No. 1077-L of 2000 - (Civil Miscellaneous Application No. 575-L of 2000), decided on 4th July, 2000.

(On appeal from the judgment of Lahore High Court, Lahore, dated 8-3-2000 passed in C.R. No.225-D of 1984).

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Disputed property was alleged to be transferred to the plaintiff in exchange with the defendants---Plaintiff failed to produce any exchange deed duly signed by both the defendants---Trial Court, dismissed the suit whereas the Lower Appellate Court reversed the judgment in appeal and decreed the suit---Defendant assailed the judgment of Lower Appellate Court before High Court in its revisional jurisdiction---High Court allowed the revision and the order of the Trial Court was restored---Validity---One of the defendants was riot found to have transferred the suit land in exchange, the entire transaction of exchange was not capable of being given effect to, therefore, whole of the transaction was to be struck down---Findings recorded by High Court did not suffer from any legal infirmity calling for interference by Supreme Court---Leave to appeal was refused.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th July, 2000.

2001 S C M R 757

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Iftikhar Muhammad Chaudhry, JJ

THE STATE through Deputy Attorney-General---Petitioner

versus

JALIB SAEED---Respondent

Criminal .Petition No. 68-Q of 1999, decided on 2nd August, 2000.

(On appeal from the judgment dated 30-6-1999 passed by High Court of Balochistan, Quetta in Special Criminal Appeal No. 101 of 1999).

Penal Code (XLV of 1860)---

----Ss.409, 420 & 468---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 the prosecution to consider the propositions as to whether High Court could not reduce the minimum sentences of rigorous imprisonment awarded to the accused for the offences of which he was found guilty to that of imprisonment for the period already undergone and that whether High Court was not legally justified to have set aside the amount of fine imposed upon the accused who had made defalcations in the Bank money to the tune of Rs.45,00,000 approximately which deficiency he was bound to make up even if the substantive sentences of imprisonment were reduced to the period already undergone.

Liaqat Ali v. State 1992 SCMR 372 ref.

Tariq Mehmood, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioner.

Respondent in person.

Date of hearing: 2nd August, 2000.

2001 S C M R 761

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munir A. Sheikh and Wajihuddin Ahmed, JJ

DARA and 4 others---Petitioners

versus

KHURSHID ALI and 4 others---Respondents

Civil Petition No. 439-L of 1999, decided on 23rd November, 1999.

(On appeal from the judgment of the Lahore High Court, dated 22-1-1999 passed in C.R. No. 1954 of 1995).

Civil Procedure Code (V of 1908)---

----O.VIII, R.1---Constitution of Pakistan (1973), Art.185(3)---Written statement, withdrawal of---Earlier written statement was filed by attorney of the defendants without any power of attorney---Defendants disowned that written statement and the Trial Court ordered for return of the same--­Subsequent written statement submitted by the defendants was retained by the Trial Court on the file of the case---Order of the Trial Court was upheld by High Court in exercise of revisional jurisdiction---Validity---Where the defendants had disowned the written statement, no credence could be given to such statement---Real defence from the side of the defendants was required to be reflected in the proceedings---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd November, 1999.

2001 S C M R 762

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhagwan Das, JJ

JAN MUHAMMAD through Attorney---Appellant

versus

ISHAQ---Respondent

Civil Appeal No. 1431-K of 1996, decided on 12th December, 2000.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 25-10-1994/20-11-1994 passed in R.F:A. No. 136 of 1993).

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

----Ss. 15 & 18---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant---Default in payment of monthly rent---Failure to give notice under , S.18, Sindh Rented Premises Ordinance, 1979--Leave to appeal was granted by Supreme Court to consider as to whether in the circumstances of the case High Court was justified in directing ejectment-of tenant particularly when crow the landlord after his shifting did not intimate about his new address to the tenant who had made all efforts to pay rent to the landlord and what was the impact of absence of service of statutory notice under S.18 of Sindh Rented Premises Ordinance, 1979, on the tenant after the death of original landlord.

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

----S.15---Ejectment of tenant---Affidavit-in-evidence---Failure to swear the affidavit before Oath Commissioner---Effect---Where the deponent had appeared before the Rent Controller and was subjected to cross-examination, the defect of administration' of oath by the Commissioner was mere an irregularity---Such irregularity stood cured when the deponent was examined before the Rent Controller who was competent to record evidence on oath.

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

----S.15---Ejectment of tenant---Proceedings on solemn affirmation--­Omission on the part of Rent Controller---Effect---No person should suffer for the mistake of Court---Such omission or error on the part of the Rent Controller might be ignored being an irregularity not vitiating the trial.

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

----S.15---Ejectment proceedings---Jurisdiction of Rent Controller ---Scope--­Discretion of Rent Controller is neither unrestricted nor unbridled but is judicious in character and ought to be exercised in line with the facts and circumstances of each case---No hard and fast rule or parameters can be laid down in this respect as the facts of each case vary---Where tenant has been keen and dutiful in discharging his legal liability and the landlord has been creating difficulties and finding devices to render it difficult for the tenant to remit the rent, discretion should be exercised in favour of a prompt, alive and conscious tenant.

Muhammad Yamin v. Mashroofullah Khan 1980 CLC 848; Allahando v. Muhammad Asghar 1982 CLC 2309; Karamat Hussain v. Kazi Ali Muhammad 1986 SCMR 441 and Inayatullah v Zahoor-ud-Din 1987 SCMR 1313 ref

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

----S.15---Ejectment of tenant---Default in payment of monthly rent--­Address of landlord not known to tenant---Landlord shifted his residence and new address was not known to the tenant---Rent was first remitted through money 'order which remained undelivered, later on the tenant started depositing rent in Court---Rent Controller did not find the default as willful and dismissed the application but .the High Court under its appellate jurisdiction allowed the appeal---Validity---Conclusion drawn by the Rent Controller was just, fair and proper whereas High Court took a contrary view on mathematical calculation with regard to deposit of rent after thirteen months from the date the same-fell due---Exercise of discretion by the Rent Controller was justified and warranted by the facts of the case whereas the substitution of the finding by the High Court could not be sustained in law--­Voluntary late deposit of rent was neither wilful nor deliberate but was on account of the circumstances created by the landlord keeping the tenant in dark about his whereabouts---Judgment of High Court was set aside and that of the Rent Controller restored by Supreme Court.

K.B. Bhutto, Advocate Supreme Court and Ahmedullah Farooqui, Advocate-on-Record (absent) for Appellant.

K.A. Wahab, Advocate-on-Record (absent) for Respondent.

Date of hearing: 6th December 2000.

2001 S C M R 768

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Mamoon Kazi and Wajihuddin Ahmed, JJ

FAZAL ILLAHI and others---Petitioners

versus

P.T.C. and others--Respondents

Civil Petitions Nos.259-K 288-K to 295-K, 311-K to 315-K, 328-K, 332-K, 339-K; 340-K, 342-K, 351-K, 352-K, 359-K to 362-K, 364-K, 370-K, 371-K, 375-K, 377-K, 381-K, 383-K, 388-K, 462-K, 474-K, 479-K 529-K and 552-K of 1998, decided on 3rd August, 1998.

(On appeal from the judgments dated 25-2-1998 of the Federal Service Tribunal, Camp at Karachi, passed in Appeal No.690-K of 1997 and other connected appeals).

Constitution of Pakistan (1973)--

----Art. 212(3)---Petitions for leave to appeal---Conversion in appeals--­Delay ---Condonation of---Supreme Court converted petitions for leave to appeal into appeals and remanded cases to Service Tribunal for fresh decision---Some of petitions for leave to appeal were time-barred, but as all cases had been remanded, delay in said petitions was also condoned.

Petitioners in person (in C.Ps. Nos.259-K, 288-K to 295-K of 1998).

Ghulam Haider Chacher, Assistant Director, STR V, Sukkur for Respondents.

A.A. Siddiqui, Advocate-on-Record for Petitioners (in C.Ps. Nos.311-K, 312-K; 313-K, 314-K, 315-K, 351-K and 352-K of 1998).

Petitioners in person (in C.Ps. Nos. 332-K, 340-K, 342-K, 364-K, 375-K, 381-K and 529-K of 1998).

Raja Haq Nawaz, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondents (in C.Ps. Nos.351-K and 352-K of 1998).

Muhammad Mushaffy Ahmed, Deputy Manager, Pakistan Steels for Respondent (in Remaining Petitions). .

Petitioner in person (in C.P. No. 328-K of 1998).

Nemo for Respondent (in C.P. No. 328-K of 1998).

M.L. Shahani, Advocate Supreme Court and N.C. Motiani, Advocate-on-Record for Petitioner (in C.P. No. 339-K of 1998).

Nemo for Respondent (in C.P. No. 339-K of 1998).

Petitioners in person (in C.Ps. Nos. 359-K, 360-x, 361-K, 370-K and 371-K of 1998).

Mehmood Khan, Superintendent, PAEC for Respondents (in C.Ps. Nos. 359-K, 360-K, 361-K, 370-K and 371,-K of 1998).

Petitioner in person (in C.P. No. 362-K of 1998).

A. Aziz Khan, Advocate-on-Record for Respondent (in C.P. 'No. 362-K of 1998).

M.M. Haque, Advocate Supreme Court and Faizanul Haque, Advocate-on-Record for Petitioner (in C.P..No.337-K of 1998).

S. Hassan Munawar, Assistant Manager Law for Respondent (in C.P. No. 377-K of 1998).

R. A. Qureshi, Advocate-on-Record for Petitioner (in C.P. No.383-K of 1998).

Nemo for Respondent (in C.P. No. 383-K of 1998).

Petitioner in person (in C.P. No. 388-K of 1998).

Nemo for Respondent (in C.P. No. 388-K of 1998).

Petitioner in person (in C.P. No. 462-K of 1998).

Muhammad Aslam Rao, Resident Director for Respondent (in C.P. No.462-K of 1998).

Petitioner in person (in C.P. No. 474-K of 1998).

Nemo for Respondent (in C.P. No. 474-K of 1998).

Petitioner in person (in C.P. No. 479-K of 1998).

M.S. Ghaury, Advocate-on-Record for Respondent (in C.P. No. 479-K of 1998).

Petitioner in person (in C.P. No. 552-K of 1998).

Nemo for Respondent (in C.P. No. 552-K of 1998)

Date of hearing: 3rd August, 1998,

2001 S C M R 770

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J. and Ch. Muhammad Arif, J

MARKET COMMITTEE, LAHORE through Administrator---Petitioner

versus

MUHAMMAD AKHTAR and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1820-L, 1821-L, 1822-L, 1823-L and 1824-L of.2000, decided on 29th July, 2000.

(On appeal from the judgment dated 25-1-2000 passed by Lahore High Court, Lahore in Writ Petitions Nos. 10821, 10822, 10823, 12711 and 12712 of 1998).

Limitation Act (IX of 1908)---

----S. 5---Constitution of Pakistan (1973), Art.185(3)---Delay, condonation of---Plea of delayed information about dismissal of Constitutional petition by the High Court---Petition for leave to appeal was filed with a delay of 115 days---Contention of the petitioner was that the counsel had not informed the petitioner about the dismissal of the petition by the High Court in time--­Validity---Petitioner had not stated in the petition for leave to appeal that the counsel (Additional Advocate-General) was not authorised to appear on behalf of the petitioner (Market Committee)---If the petitioner had not been informed about the fate of the Constitutional petition, opposite-party could not be penalised for such omission---Supreme Court observed that the petitioner could take appropriate steps available under the law against the counsel---Leave to appeal was refused.

M.A. Zafar, Advocate Supreme Court and Ch.. M. Khan Mehtab, Advocate-on-Record for Petitioner (in all Petitions).

Nemo for Respondents.

Date of hearing: 27th July, 2000.

2001 S C M R 772

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar and Munir A. Sheikh, JJ

Mst. SUGHRAN BIBI and others---Petitioners

versus

Mst. JAMEELA BEGUM and others---Respondents

Civil Petition for Leave to Appeal No. 1952-L of 1999, decided on 23rd December, 1999, (On appeal from the judgment dated 7-10-1999 of the Lahore High Court passed in Civil Revision No.3714/1994).

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

----OXVI, R.1---Issues, framing of---Failure to frame correct issues---Duty of the Court---Scope---Parties in suit were entitled to make application for the amendment of issues but primarily it was the duty of the Court to frame the issues correctly---Issues framed by the Court should correctly reflect the controversies arising from the pleadings of the parties so that effective judgment could be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led.

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

----O.XLI, R.25 & S.115---Constitution of Pakistan (1973), Art.185(3)--­Remanding of case after framing additional issue---Failure to frame proper issue by the Trial Court---Controversy between the parties could not be .resolved unless evidence was led on additional issue---Lower Appellate Court framed the issue and remanded the case-to the Trial Court for recording of evidence on the issue---Order of the Lower Appellate Court was set aside by High Court in exercise of revisional jurisdiction---Validity--Act of the Trial Court of not framing issue correctly and debarring the petitioner from leading evidence to prove his case as made out in the pleading was rightly corrected by framing the additional issues by Lower Appellate Court and sending the case for production of evidence and decision of appeal thereafter---Such order of the Lower Appellate Court should not have been interfered with as the same did not suffer from any material irregularity amounting to illegality or jurisdictional defect calling for interference under S.'115, C.P.C.---Law favoured adjudication of all the disputed facts on merits after granting opportunity to the parties to prove the same so that the rights of the parties might be determined finally---Judgment of the Lower -Appellate Court being just and proper was not liable to be interfered--- Petition for leave to appeal was converted into appeal and the judgment of High Court was set aside.

Pervaiz I. Mir, Advocate Supreme Court for Petitioners.

Zahid Hussain Khan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd December, 1999.

2001 S C M R 775

[Supreme Court of Pakistan]

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

Messrs MASTER FOAM (PVT.) LTD. Through Iftikhar Khan, Executive Director---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and Economic Affairs, Islamabad and others---Respondents

Civil Petition for Leave to Appeal No. 1414 of 1998, decided on 4th May, 1999.

(On appeal from the judgment/order, dated 27-10-1998, of the Lahore High Court, Lahore passed in Writ Petitions Nos. 14579 and 18667 of 1998).

Sales Tax Act (IX of 1990)---

----S.3(b)---Constitution of Pakistan (1973), Art.185(3) & Federal Legislative List, Item 49---Sales tax, recovery of---Goods in transit for Azad Jammu and Kashmir---Contention of the petitioner was that the provision of S.3(b) of Sales Tax ,Act, 1990 was repugnant to Item 49 of the Federal Legislative List of the Constitution and that the provisions of Customs Act, 1969 and the Sales Tax Act, 1990 were not applicable to the territories of Azad Jammu and Kashmir and goods in transit were, thus, not subject to payment of taxes---Leave to appeal was granted to consider the contention of the petitioner.

Raja Muhammad Akram, Advocate Supreme Court with Imtiaz M. Khan, Advocate-on-Record for Petitioner.

Mansoor Ahmed, Deputy Attorney-General for Respondents.

Date of hearing: 4th May, 1999.

2001 S C M R 777

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

CHAIRMAN, CENTRAL BOARD OF REVENUE, ISLAMABAD and 3 others---Petitioners

versus

Messrs PAK-SAUDI FERTILIZER LTD. and another---Respondents

Civil Petition No.553-Kof 1999, decided on 24th August, 2000.

(On appeal from the order, dated 5-7-1979 of High Court of Sindh in Petition No.283 of 1999).

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

----Ss.53 & 87---Constitution of Pakistan (1973), Art.185(3)---Advance payment of income-tax---Failure to pay---Issuance of demand notice under S.87, Income Tax Ordinance, 1979 for recovery of advance income-tax--­Validity---Assessing Officer not being authorised by law, could not effect recovery of advance income-tax in case of failure to pay the same on time under S.53 of Income Tax Ordinance, 1979---High Court had rightly declared the demand notice to be without jurisdiction and unlawful---Leave to appeal was refused by Supreme Court.

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

----Art.199---Constitutional petition---Maintainability---Alternate adequate remedy, non-availing of---Orders passed without jurisdiction---Where order passed by the Authority was without jurisdiction and unlawful there would be no bar to the filing of Constitutional petition under Art.199 of the Constitution.

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

----Ss.53 & 129---Failure to pay advance income-tax---Appeal---Maintainability ---Assessee instead of filing appeal under S.129 of Income Tax Ordinance, 1979 filed Constitutional petition against the demand, notice for the recovery of the tax---Validity---Appeal would lie only against the order passed under the provision of law mentioned in S.129 of Income Tax Ordinance, 1979---Section 53 of Income Tax Ordinance, 1979, having not been mentioned in 5.129 of the Ordinance, appeal Was not competent.

(d) Appeal---

---- Right of appeal is a creature of statute and there can be no right of appeal unless the same was conferred by the statute.

M. Farid, Advocate (with permission of Court) and .S. M. Abbas, Advocate-on-Record for Petitioners.

Athar Saeed, Advocate Supreme Court alongwith A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 24th August, 2000.

2001 S C M R 782

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

Civil Petitions Nos. 2110-L, 2111-L, 2113-L, 2117-L, 2119-L, 2120-L,2128-L,2140-L,2144-L,2145-L,2165-L,2169-L, 2184-L to 2186-L, 2189-L, 2191-L, 2192-L, 2194-L to 2196-L, 2201-1, 2203-L, 2207-L, 2230-L, 2488-L to 2492-L of 2000.

NASEER AHMAD KHAN and others---Petitioners

versus

PRESIDENT, UBL and others---Respondents

(On appeal from the judgment dated 1-5-2000 of the Federal Service Tribunal, Lahore, passed in Appeals Nos. 1203-L, 1222-L, 1292-L, 1282-L, 1227-L, 1265-L, 1220-L, 1272-L, 1209-L, 1316-L, 1324-L, 1062-L, 1112-L, 1111-L, 1216-L, 1240-L, 1266-L, 1263-L, 1219-L, 1271-L, 1269-L, 1235-L, 1270-L, 1293-L, 1310-L, 1684-L, 1624-L, 1623-L, 1616-L and 1390-L of 1998).

Civil Petitions Nos. 2092-L to 2109-L, 2112-L, 2114-L to 2116-L, 2118-L, 2121-L to 2127-L, 2129-L to 2139-L, 2141-L to 2143-L, 2146-L to 2164-L, 2166-L, 2167-L, 2168-L, 2170-L. to 2183-L, 2188-L, 2190-L, 2193-L, 2197-L to 2199-L, 2202-L, 2204-L to 2206-L, 2208-L to 2229-L, 2231-L, 2243-L to 2245-L, 2200-L and 2333-L to 2335-L of 2000

SHAHID HAMEED BODLA---Petitioner

versus

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

(On appeal from the judgment dated 14-6-2000 of the Federal Service Tribunal, Lahore; passed in Appeals Nos.961-L, 960-L, 1059-L, 12045-L, 971-L, 962-L, 1020-L, 958-L, 848-L, 970-L, 963-L, 261-L, 1004-L, 1433-L, 959-L, 1432-L, 1506-L, 1271-L, 886-L, 964-L, 1235-L, 843-L, 1435-L, 1087-L, 849-L, 1413-L, 1003-L, 896-L, 1065-L, 893-L, 1058-L, 1067-L, 932-L, 1349-L, 927-L, 852-L, 1047-L, 884-L, 1034-L, 1042-L, 998-L, 1064-L, 1068-L,1088-L, 900-L, 838-L, 1035-L, 101-L, 810-L, 889-.L, 941-L, 885-L, 936-L, 928-L, 1484-L, 812-L, 890-L, 973-L, 1880-L, 1981-L, 855-L of 1998, 4-L of 1998, 1000-L, 1016-L of 1998, 1350-L, 1756-L, 915-L, 1837-L, 901-L, 872-L, 1839-L, 969-L, 899-L, 1720-L, 1002-L OF 1998, 44,1-L of 1999, 892-L of 1998, 999-L, 938-L, 940-L, 933-L, 847-L, 1742-L, 1054-L, 891-L, 844-L, 882-L, 1722-L, 1412-L, 873-L, 1980-L, 877-L, 875-L, 1001-L, 943-L, 10037-L, 1021-L, 871-L, 975-L, 1410-L, 1011-L, 1049-L, 442-L, 934-L, 1468-L, 898-L, 883-L, 997-L, 926-L, 1530-L, 897-L, 1048-L, 902-L, 840-L, 1010-L, 1012-L, 6009-L, 966-L, 1027-L and 1026-L of 1998).

Civil Petitions Nos. 2110-L, 2111-L, 2113-L, 2117-L, 2119-L, 2120-L, 2128-L, 2140-L, 2144-L, 2145-L, 2165-L, 2169-L, 2184-L to 2186-L, 2189-L, 2191-L, 2192-L, 2194-L to 2196-L, 2201-L, 2203-L, 2207-L, 2230-L, 2488-L to 2492-L o'- 2000, ,Civil Petitions Nos. 2092-L to 2109-L, 2112-L, 2114-L to 2116-L, 2118-L, 2121-L to 2127-L, 2129-L to 2139-L, 2141-L to 2143-L, 2146-L to 2164-L, 2166-L, 2167-L, 2168-L, 2170-L to 2183-L, 2187-L, 2188-L, 2190-L, 2193-L, 2197-L to 2199-L, 2202-L, 2204-L to 2206-L, 2208-L to 2229-L, 2231-L, 2243-L to 2245-L, 2200-L, 2333-L to 2335-L of 2000, decided on 23rd October, 2000.

Service Tribunals Act (LXX of 1973).--

----Ss.2-A & 6---Constitution of Pakistan (1973), Art.212(3)---Bank employees---Termination of services under Retirement Scheme of employees of various categories of Bank---Principle" of consistency ---Applicability--­Controversy raised in the petitions was pari materia with the controversy which was set at rest by Supreme Court in Akram Zaheer's case reported as 2000 SCMR 1232---Following the rule of consistency the Bank employees were also entitled to equal treatment---Parties by consent agreed that the cases be remanded to the Bank for disposal to the extent that adjustment of loans obtained by the employees from the respondent-Bank would be made strictly in accordance with the respective loan agreements executed between each of the employees and the Bank and grant of pensionary benefits would be available to the employees who were found entitled for the same in accordance with the Service Rules of the Bank in force at the time of termination of their services---Supreme Court while converting the petitions into appeals maintained the order of termination of employees but remanded the cases to the Bank for reconsideration to the extent of agreement arrived at between the parties---Any employee feeling aggrieved of the decision of the Bank to his extent would be within his right to approach the Service Tribunal after exhausting the departmental remedy in that behalf.

United Bank Limited through President v. Shahmin Ahmed Khan PLD 1999 SC 990 ref.

Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 fol.

Muhammad Akram Sheikh, Senior Advocate Supreme Court with Syed Abul Asim Jafri, Advocate-on-Record for Petitioners.

Raja Muhammad Akram, Senior Advocate Supreme Court for

Date of hearing: 23rd October, 2000.

2001 S C M R 785

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

GOVERNMENT OF PAKISTAN---Petitioner

versus

ARIF and others---Respondents

Civil Petitions for Leave to Appeal Nos. 162-K to 167-K of 1998, decided on 9th July, 1998.

(From the judgment/order of High Court of Sindh, Karachi, dated 7-1-1998 in H.C.As. Nos.133, 130, 131, 134, 129 and 132 of 1996 respectively).

Fatal Accidents Act (XIII of 1855)---

----S.1---Constitution of Pakistan (1973), Art. 185(3)---Interest on amount of compensation/damages---Award of interest on decretal amount---Point of time for calculation of interest---High Court decreed the suit and awarded interest at the rate of 14% per annum from the date of filing of the suit till the amount was paid---Contention of the petitioner was that the liability of the Government being vicarious in nature, the interest on the amount of compensation/damages awarded by the Court should have been calculated from the date of decree and not from the date of filing of the suit ---Validity--­Contention, being not without force petition for leave to appeal was converted into appeal and judgment of the High Court was modified by Supreme Court to the extent that the amount of interest awarded would be calculated from the date of decree till the amount was paid.

Pakistan Railway v. Abdul Haqitue 1991 SCMR 657 ref.

Karachi Transport Corporation v. Latif-ur-Rehman 1993 SCMR 1149 distinguished.

Mubarak Hussain Siddiqui, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Respondent in person.

Date of hearing: 9th July, 1998.

2001 S C M R 789

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

INSPECTOR-GENERAL OF POLICE, PUNJAB, HORE and others---Petitioners

versus

MUHAMMAD TARIQ --- Respondent

Civil Petition No.246-L of 1999, decided on 1st November; 2000.

(On appeal from the order, dated 20-10-1998 of the Punjab Service Tribunal passed in Appeal No.2257 of 1997).

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----R.4---Proceedings in criminal case as well as before Departmental Authorities against civil servant---Acquittal in criminal cases does not debar the Departmental Authorities to take action against delinquent in accordance with law and rules---Such acquittal does not give to delinquent clean certificates of his absolvement from the departmental proceedings---Both the proceedings are conducted respecting the case registered against the delinquent while the departmental proceedings are regarding the charges of malversation and misconduct---Both the proceedings, however, can go side by side as their nature is totally different.

The Deputy Inspector-General of Police, Lahore and others v. Anis­ur-Rehman Khan PLD 1985 SC 134 and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 rel.

(b) Government Servants (Efficiency and Discipline) Rules, 1973--

----R.4---Proceedings in criminal case as well as before Departmental Authorities against civil servant ---Acquittal in criminal case---Bar of imposing of any penalty in departmental proceedings under Government Servants (Efficiency and Discipline) Rules, 1973---Validity---After the civil servant has been acquitted of criminal charge, there is no bar on imposing penalty under Government Servants (Efficiency and Discipline) Rules, 1973.

Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195 rel.

(c) Police---

---- Duties and functions of police force discussed.

Police Administration ref.

(d) Government Servants (Efficiency and Discipline) Rules, 1973---

----R.4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Acquittal in criminal case--- Proceedings in criminal case as well as before Departmental Authorities---Civil servant police official was departmentally proceeded against for committing Zina-bil-Jabr --- Civil servant was found guilty in preliminary inquiry but in regular inquiry the Inquiry Officer exonerated him of the charge---Departmental Authorities dismissed the civil servant from the service as he was earlier involved in three other criminal cases also---Departmental appeal as well as revision were dismissed---Service Tribunal allowed the appeal and set aside the dismissal order---Validity---Civil servant was even earlier discharged from service and his punishment was subsequently converted into forfeiture of two years approved service but he again started misusing his official position---Such-like person did not deserve to be retained in police force--­Supreme Court converted the petition for leave to appeal into appeal and set aside the judgment of the Tribunal.

Shawar Khilji, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record for Petitioners.

Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Respondent.

Date of hearing: 1st November, 2000.

2001 S C M R 795

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Iftikhar Muhammad Chaudhry, JJ

REHMATULLAH---Petitioner

versus

MUHAMMAD QADEER and another---Respondents

Criminal Petition for Leave to Appeal No. 391-L of 2000, decided on 26th July, 2000.

(On appeal from the judgment dated 9-6-2000. of the Lahore High Court passed in Criminal Revision No. 175 of 2000).

Criminal Procedure Code (V of 1898)---

-----S.516-A---Penal Code (XLV of 1860), S.380---Constitution of Pakistan, (1973), Art. 185(3)---Trial Court had cancelled the Superdari of stolen cash already granted to petitioner for non-production of the same as case property in, the Court without providing any opportunity of hearing to him and his surety---Such order, therefore, was void ab initio and could be recalled by the Trial Court on reconsideration after hearing the parties---No illegality was attachable to the order of Trial Court restoring; a Superdari of the case property to the petitioner which was mot only just and proper but also correct in the facts and circumstances of the case---Petition for leave to appeal was converted into appeal and the same was accept in circumstances--- Impugned order of High Court cancelling the restoration of Superdari of case property in favour of petitioner by the Trial Curt, was set aside accordingly.

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

Abdul Wahid Ch., Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record and A.H. Masood, Advocate Supreme Court for Respondents.

Date of hearing: 26th July, 2000.

2001 S C M R 798

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Javed Iqbal, JJ

ABDUL QAYUM through Legal Heirs---Appellant

versus

MUSHK-E-ALAM and another---Respondents

Civil Appeal No. 542 of 1997, decided on 4th January, 2001.

(On appeal from the judgment dated 26-6-1995 of the Peshawar High Court, Circuit Bench, D.I. Khan (passed in C.R. No.213'of 1994).

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

----S. 15---Constitution of Pakistan (1973), Art.185(3)---Civil Procedure Code (V of 1908), S.115---Pre-emption suit---Leave to appeal was granted by Supreme Court to consider, whether in the facts and circumstances of the case, findings of the Lower Appellate Court on pure question of fact as to Talb-i-Muwathibat could be interfered with under S.115, C.P.C. by High Court.

(b) Evidence----

----Variations in evidence---Natural variations which a human being in the ordinary course of business would certainly make, as such the same do not in any way, detract from the veracity of such evidence.

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

----S. 115---Revision---Minor discrepancies in evidence---Interference by High Court in exercise of revisional jurisdiction---Scope---Where- appraisal of evidence undertaken by the Lower Appellate Court was perfectly in accordance with the principles settled by the superior Courts in civil cases and the same did not suffer from any legal infirmity, the same could not be interfered by the High Court under S.115, C.P.C. by taking different view of evidence and raising inferences of its own.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Finding of facts---Possibility of different view---Effect---Where such findings were based on appraisal of evidence, raising of inferences in its discretion could not be interfered with under S.115, C.P.C. merely because different view was also possible to be taken.

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

----S. 15---Pre-emption suit---Second sale transaction---Failure to assail such transaction---Sale sought to be pre-empted was f made on 24-4-1991, ostensibly for consideration of Rs.60,000 which too was alleged to have been exaggerated whereas within few days on 5-5-1991, the same land was shown to have been further sold for an amount of Rs.1,60,000---Pre-emption suit was fled against the first vendee and not against the subsequent vendee--­Suit was dismissed by the Trial Court but the Lower Appellate Court decreed the same---High Court in exercise of revisional jurisdiction restored the judgment of the Trial Court---Validity---Second transaction of the sale could be concluded to be neither real nor the same was intended to be made---Both the vendees appeared to have colluded in order to create a fictitious transaction in order to damage the suit of the pre-emptor to pre-empt the original sale---Where the subsequent transaction was not a real one, the pre­emptor could not be non-suited for not pre-empting the same as no second sale would be deemed to have been made---Witnesses had supported the version of the pre-emptor and 'albs were made in accordance with law--­Judgment of High Court passed in revisional jurisdiction was set aside and that of the Lower Appellate Court was restored---Appeal was allowed.

Abdul Aziz Kundi, Advocate-on-Record for Appellants.

Abdul Hakim Kundi,, Advocate Supreme Court and Jan M. Khan, Advocate-on-Record for Respondents.

Date of hearing: 8th December, 2000.

2001 S C M R 805

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Chaudhry MUHAMMAD ZAMAN --- Petitioner

versus

PAKISTAN EMPLOYEES COOPERATIVE HOUSING SOCIETY and others---Respondents

Civil Petition No. 41-K of 1999, decided on 24th August, 2000.

(On appeal from the order dated 9-12-1998 of the High Court of Sindh in R.A. go. 127 of 1998).

Civil Procedure Code (V of 1908)---

----Ss. 47, 115 & O.XXI, R. 58---Objection to decree --- Interveners, intending to become party to execution proceedings ---Revisional jurisdiction of High Court---Scope---Dispute was with regard to allotment of plot--­Proceedings were initiated in the year 1982 by the decree-holder --­Interveners filed application to become party to the proceedings at the time of execution of the decree ---Interveners could not be said to be necessary or proper party to be made in the proceedings after about 16 years since the proceedings were initiated by the decree-holder---High Court had rightly dismissed civil revision as well as applications of the interveners for becoming party---Direction given by High Court to the interveners to move the Executing Court for becoming party was redundant and uncalled for in the revisional jurisdiction of High Court---Order of High Court allowing the interveners to move the executing Court for becoming party was set aside--­Petition for Leave to Appeal was converted into appeal and the same was allowed accordingly.

Iqbal Hasan Kazi, Senior Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Petitioner.

Respondent No.3 in person.

Date of hearing: 24th August, 2000.

2001 S C M R 808

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Deedar Hussain Shah and Hamid Ali Mirza, JJ

GOVERNMENT OF SINDH---Petitioner

versus

Dr. ABRAR ALI SHEIKH---Respondent

Civil Petition No. 368-K of 2000, decided on 29th August, 2000.

(On appeal from the judgment of the High Court of Sindh Circuit Bench, Larkana dated 20-5-2000 passed in C.P. No. D-3 of 1999).

Supreme Court Rules, 1980----

----O.XXXIII, R. 6---Constitution of Pakistan (1973), Art. 185(3)---Petition for Leave to Appeal ---Condonation of delay---Petition was barred by ten days---Delay was caused due to time spent in the Government office with a view to finalising any matter and the delay was not deliberate---Validity--- Delay in filing of the petition had got no nexus whatsoever with any explanation of the entire period by metes and bounds---Petition being barred by time, leave to appeal was refused.

Ainuddin, Additional Advocate-General, Sindh and A.A. Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 29th August, 2000.

2001 S C M R 809

[Supreme Court of Pakistan]

Present: Nasim Hussain Siddiqui, Deedar Hussain Shah and Javed Iqbal, JJ

Mrs. BILQUIS ANWAR KHAN and 39 others---Appellants

versus

PAKISTAN through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 3 others---Respondents

Civil Appeals Nos. 1583 and 1584 of 1995, 1026 of 1996, Civil Miscellaneous Nos. 354, 986 of 1997 and 835 of 1998, decided on 8th November, 2000.

(On appeal from the judgment/order, dated 29-6-1995, 16-5-1995 and 19-9-1995, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Writ Petition No. 1225 of 1994, Writ Petition No. 1330 of 1994 and Writ Petition No. 1161 of 1995, respectively).

(a) Capital Development Authority Ordinance (XXIII of 1960)----

----S. 15-A---S.R.O. No.806, dated 20-8-1991 and S.R.O. No.619(I)/94, dated 16-6-1994---Constitution of Pakistan (1973). Art. 185(3)---Property tax, levy of---Capital Development Authority---Jurisdiction---Leave to appeal was granted to consider as to whether the Capital Development Authority had been assigned only functions of a Municipal Committee under Municipal Administration Ordinance, 1960 and had no authority to levy property tax on urban properties.

(b) Capital Development Authority Ordinance (XXIII of 1960)----

----S. 15-A---Capital Development Authority---Jurisdiction and functions--­Capital Development Authority has been authorised to perform functions and exercise powers of Municipal Committee under the Municipal Administration Ordinance, 1960.

(c) Capital Development Authority Ordinance (XXIII of 1960)----

----S. 15-A---Municipal Administration Ordinance (X of 1960), S.33 & Sched.III, Entry No.I---Property tax, levy of---Scope---Capital Development Authority, under the provisions of Sched. III, Entry No.1 of Municipal Administration Ordinance, 1960, has been empowered to levy property tax.

(d) Capital Development Authority Ordinance (XXIII of 1960)----

----S. 15-A---Municipal Administration Ordinance (X of 1960) Ss.33, 34 & Sched. III----Property tax, levy of ---Vires of S. 15-A of Capital Development Authority Ordinance, 1960---Property tax imposed by the Authority--­ Imposition of property tax was assailed in Constitutional petition which was dismissed by High Court---Validity---Property tax levied by the Authority was within the legal parameters of S. 15-A of Capital Development. Authority Ordinance, 1960 read with Ss.33, 34 & Sched. III of Municipal Administration Ordinance, 1960---Property tax was imposed after observing all proper and legal formalities required under law with the sanction of the Government.

Government of N.-W.F.P. through Chief Secretary and another v. Muhammad Irshad and 3 others PLD 1995. SC 281 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 distinguished.

Abdul Hakeem Khan, Senior Advocate Supreme Court and Ch.Altaf Hussain, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-­Record for Appellants (in Civil Appeal No. 1583 of 1995).

Ch. Akhtar Ali, Advocate-on-Record for Respondent No.3 (in Civil Appeal No. 1583 of 1995).

Ijaz Muhammad Khan, Advocate-on-Record for Respondent No.5 (in Civil Appeal No. 1583 of 1995).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.4 (in Civil Appeal No. 1583 of 1995).

Appellant in person (in Civil Appeal No. 1584 of 1995).

Ch. Akhtar Ali, Advocate-on-Record for Respondent (in Civil Appeal No. 1584 of 1995).

Ch. Dil Muhammad Tarar, Advocate Supreme Court, M.A. Zaidi, Advocate-on-Record for Appellant (in Civil Appeal No. 1026 of 1996).

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in Civil Appeal No. 1026 of 1996).

Abdul Hakeem Khan, Senior Advocate Supreme Court, Ch. Altaf Hussain, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil Miscellaneous Appeal No.354 of 1997).

Ejaz Muhammad Khan Advocate-on-Record for Applicant (in Civil Miscellaneous Appeal No.354 of 1997).

Bashir Ahmad Ansari, Advocate Supreme Court and Malik Muhammad Nawaz, C.D.A. Legal Adviser for Respondents (in Civil Miscellaneous Appeal No.354 of 1997).

Ch. Altaf Hussain, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Applicant (in Civil Miscellaneous Appeal No.986 of 1997).

Abdul Bashir Qureshi, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil Miscellaneous Appeal No.835 of 1998).

Date of hearing: 8th November, 2000

2001 S C M R 820

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

Mst. FARRUKH JABIN --- Appellant

versus

MAQBOOL HUSSAIN through Legal Heirs and others---Respondents

Civil Appeals Nos. 640 of 1994 and 1136 of 1997, decided on 20th November 200.

(On appeal from the judgment dated 18-7-1992 of the Lahore High Court, Multan Bench, Multan passed in R. S. As. Nos. l23 and 124 of 1992)..

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 15---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption right---Pedigree-table---Exercise of such right on the basis of collateral of vendors---Leave to appeal was granted by Supreme Court to consider as to whether pedigree-tables did not connect the pre-emptor and vendors.

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

----Art. 185(2)(3)---Petition for Leave to Appeal---Leave granting order--­Extending the scope of such order---Requirement of notice to the other party---Scope---Supreme Court exercises Constitutional jurisdiction conferred upon it under Art. 185(3) of the Constitution according to which if appeal to the High Court from a judgment/decree, order or sentence of a High Court is not competent under Art. 185(2) of the Constitution then appeal is competent only with; the leave of the Court---Supreme Court is not a Court of facts, therefore, it only examines the questions of law which are considered to be of public importance or in which the Court finds it necessary to examine any contention in the interest of justice---Contentions which find favour with the Court at the time of granting leave are noted in the order and ordinarily at the time of hearing of appeal Supreme Court confines itself to the leave granting order---Such leave granting order can be extended subsequently if-a request is made in that behalf but before exercising such judicial discretion a notice to the other party is deemed to be necessary for safe administration of justice if the Court has decided to examine the points of law beyond the scope of leave granting order.

Roshti Khan and others v. Shahzada Khursraul Mulk and others 1992 SCMR 1317 and State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 ref.

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

----Art. 185(3)---Petition for Leave to Appeal---Validity---Raising of new plea---No interference is called for in the order on the points which were never put forward either before the High Court or the subordinate Courts.

(d) Punjab Pre-emption Act (I of 1913)----

----Ss. 4, 15 & 21 -Right of pre-emption ---Collateral, plea of---Evidence produced by the pre-emptor established the relationship of vendor and pre­emptor ---Contents of pedigree-tables of vendor and the pre-emptor were also proved by the oral evidence---Trial Court decreed the suit and the judgment and decree was upheld by Lower Appellate Court as well as by High Court--Validity---Where one of the vendors had also proved the contents of the pedigree-tables, findings of fact recorded on such score being unexceptionable were not open to interference.

1979 CLC 494; 1985 SCMR 585; 1987 CLC 101; PLD 1990 SC 1192; 1990 SCMR 1252; PLD 1992 Lah. 92; 1992 CLC 212; 1993 CLC 1580; 1998 CLC 610; 1999 SCMR 105; PLD 1959 (W.P.) Lah. 295; PLD 1985 SC 41; 1997 SCMR 1617; 1999 SCMR 279; PLD 1968 Lah. 907; PLD 1983 SC 273; PLD 1991 SC 213 and PLD 1998 SC 1512 ref.

A.K. Dogar, Advocate Supreme Court and S. Inayat Hussain, Advocate-on-Record (absent) for Appellant (in both Appeals).

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of nearing: 20th November 2000.

2001 S C M R 827

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Deedar Hussain Shah, JJ

MUHAMMAD SHAFI---Appellant

versus

MUHAMMAD HUSSAIN ---Respondent

Civil Appeal No. 1281 of 1995, decided on 15th January, 2001.

(On appeal from the judgment/order, dated 22-12-1993, of the Lahore High Court, Lahore, passed in F. A. O. No. 111 of 1982).

(a) Punjab Pre-emption Act (I of 1913)----

----S.21---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit--­Dictum laid down by Supreme Court in Said Kamal Shah's case PLD 1986 SC 360---Applicability---Leave to appeal was granted by Supreme Court to consider, whether the impugned judgment was in consonance with law.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

(b) Punjab Pre-emption Act (I of 1913)----

----S. 21---Limitation Act (IX of 1908), S. 5---Constitution of Pakistan (1973), Art. 187---Pre-emption suit---Delay, condonation of---Dictum laid down by Supreme Court in Said Kamal Shah's case PLD 1986 SC 360--­Applicability---Litigation was pending before the lower Courts much before the target date 31-7-1986---Suit was dismissed by Trial Court but Lower Appellate Court allowed the appeal and decreed the suit---High Court under the wrong impression set aside the judgment and decree of Lower Appellate Court and suit of the pre-emptor was dismissed---Petition for leave to appeal was filed with a delay of 68 days---Such delay was caused due to the failure 'of the counsel to inform the pre-emptor about decision of the High Court--­Validity---Judgment of the High Court was not supported by the record of the case rather it was contrary to the same---Such judgment was void ab initio and illegal and the same was not to be sustained---Supreme Court was required under Art. 187 of the Constitution, to do complete justice and mere technicality of delay, which had been explained properly by the pre-emptors, was condoned---Explanation, furnished by the appellant in filing the petition late was plausible and reasonable---Judgment and decree passed by High Court was set aside.

Mst. Rehmat Bibi v. Punnu Khan 1986 SCMR 962; Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Sirajun Munira v. Pakistan through Assistant Deputy Director-General (Adorn.), Islamabad 1998 SCMR 785; Ahmed Din v. Ghulam Muhammad through Legal Heirs and others 2000 SCMR 647; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Bahadur Khan v. Muhammad Yousaf arid another 1992 SCMR 2117 ref.

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

----Art. 187---Supreme Court was required under Art. 187 of the Constitution, to do complete justice and mere technicality of delay, which had been explained properly by the appellants was condoned.

(d) Limitation Act (IX of 1908)----

----S. 5---Condonation of delay---Failure of counsel to inform about the decision---Validity---Where appellant was not informed by his counsel about the decision of High Court, delay caused in filing of appeal was condoned.

Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellant.

Muhammad Munir Peracha, Advocate Supreme Court and Syed Inayat Hussain, Advocate-on-Record (absent) for Respondent.

Date of hearing: 1st December, 2000.

2001 S C M R 832

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY through Registrar---Petitioner

versus

IMTIAZ ALI and 6 others---Respondents

Civil Petition No. 170-K of 2000, decided on 19th December, 2000.

(On appeal from the judgment dated 22-2-2000 passed by the High Court of Sindh in Constitutional Petition No. D-.42 of 1999).

(a) N.E.D. University of Engineering and Technology Act (III of 1977)---

----S.18(2)(g), Regln. 5---Additional examination, holding of---Jurisdiction. of Syndicate---Additional examination was held---Under the orders of Vice­-Chancellor of the University in which 53 students appeared and cleared the same---Validity---Syndicate and not the Vice-Chancellor had the power under the provisions of Regln.5 of N.E.D. University of Engineering and Technology Act, 1977, to hold additional examination in the same year--­Holding of the examination, by the Vice-Chancellor was against the Regulation and there was no legal justification for the same as it could only be ordered by the Syndicate---Syndicate also could not order for additional examinations without assigning special reasons.

(b) N.E.D. University of Engineering and Technology Act (III of 1977)----

----S. 18(2)(g), Regln.5---Additional examination, holding of---Jurisdiction of Syndicate---Scope---Only one examination was to be held in a year and if an additional examination was required then for such exception, special reasons were to be assigned by the Syndicate.

(c) N.E.D. University of Engineering and Technology Act (III of 1977)----

----Ss. 16(s)(u)(v), 18(2)(g), Regln. 5---Constitution of Pakistan (1973), Art..185(3)---Additional examination, holding of---Jurisdiction of Vice­Chancellor---Non-compliance of the order passed by the High Court---Result of 46 students was cancelled by the Vice-Chancellor but the order was set aside by the Syndicate of the University---Decision taken by the Syndicate in its resolution was reaffirmed by the Syndicate in review---Vice-Chancellor instead of complying with the decision of the Syndicate ordered for holding additional examination---High Court, in exercise of Constitutional jurisdiction, affirmed the decision of the Syndicate---Validity---If the validity, correctness and propriety of decision of the Syndicate was upheld by the High Court in its Constitutional jurisdiction, after decision of High Court, the order of the Syndicate had become final and its validity could not be questioned through subsequent resolution as such the same tantamounted to interference in the judgment delivered by the High Court which fell within the scope of contempt of Court---Judgment of High Court could not be modified/erased by such subsequent resolution as the Vice-Chancellor was directed to implement the Syndicate resolution---Supreme Court taking a lenient view by not issuing contempt notices to those who had passed the subsequent resolution warned them to be careful in future---Leave to appeal was refused.

(d) Contempt of Court-

---- If the validity, correctness and propriety of decision of the Syndicate was upheld by the High Court in its Constitutional jurisdiction, after decision of High Court, the order of the Syndicate had become final and 'its validity could not be questioned through subsequent resolution as such the same tantamounted to interference in the judgment delivered by the High Court which fell within the scope of contempt of Court---Judgment of High Court could not be modified/erased by such subsequent resolution as the Vice­Chancellor was directed to implement the Syndicate resolution---Supreme Court taking a lenient view by not issuing contempt notices to those who had passed the subsequent resolution warned them to be careful in future.

Rashid A. Rizvi, Advocate Supreme Court for Petitioner.

Amir Muslim Hany, Advocate Supreme Court for Respondents.

Date of hearing: 18th December, 2000.

2001 S C M R 838

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

ASSISTANT COLLECTOR CUSTOMS and others---Appellants

versus

Messrs KHYBER ELECTRIC LAMPS and 3 others---Respondents

Civil Appeals Nos. 1358 to 1361 of 1997, decided on 20th October, 2000.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 18-4-1996 passed in Writ Petitions Nos.794, 795, 958 and 960 of 1995.)

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

----S. 32---Constitution of Pakistan (1973), Art. 185(3)---Short assessed duty, recovery of---Notice for recovery of such duty was declared void and illegal by the High Court---Contention of the Authorities was that after having reached the conclusion that the disputed notices served on the respondents were not in accordance with S. 32(2)(3) of the Customs Act, 1969, High Court should have, either remanded the cases to the Customs Authorities or left the same open to the Authorities to proceed against the respondents in accordance with law instead of merely declaring such notices to be as without lawful authority and of no legal effect---Further contention of the Authorities was that question whether the goods cleared by the respondents by declaring them as raw material, were in fact raw material or a sub-component, was a question of fact which could only be determined by the Customs Authorities and High Court could not in exercise of jurisdiction under Art. 199 of the Constitution, record a binding finding in that behalf--­Leave to appeal was granted by Supreme Court to consider the contentions raised by the Authorities.

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

----S. 32(2)(3)---Short assessed duty, recovery of---Show-cause notice, non ­issuance of---Effect---Show-cause notices were required under S. 32(2)(3) of Customs Act, 1969, to be given to the respondents before recovery of any short assessed duty---Demand notices in absence of statutory show-cause notices were without lawful foundation---A thing required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all---Where prerequisite show-cause notice as required by law had not been served on the respondents, no straightaway demand notice for payment of alleged short levy could be issued.

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

----Ss. 32(2) & 32(3)---Recovery of short levied duty---Show-cause notices under S. 32(2) & (3) of Customs Act, 1969---Distinction---Both the notices are two distinct and separate types of notices as different grounds and different periods for service of notice in each subsection of S. 32, Customs Act, 1969 has been prescribed---Specific allegation of any collusion between assessee and Customs Authorities has to be levelled with proper particulars in the show-cause notice under S. 32(2) of Customs Act, 1969, and for non­levy, short levy or erroneous refund, such notice had to be served within three years of the relevant date---Non-levy, short levy or erroneous refund under the provisions of S. 32(3) of Customs Act, 1969, is done due to inadvertence, error or misconstruction and the show-cause notice to the importer has to be served within six months of the non-short levy---Where such specific particulars are not stated in the notices, the same are vague and are not in consonance with the requirement of S. 32(2) & (3) of Customs Act, 1969.

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

----S. 32(1), (2) & (3)---Show-cause notices---Prerequisites---Necessary under S. 32(1) of Customs Act, 1969, to show that the declarant had the knowledge or had the reason to believe that declaration or statement made by him was untrue/false and in absence of such allegation notice would be vague and would not be in accordance with law---Notice under S.32(2) of Customs Act, 1969, must contain allegation of collusiveness and notice under S. 32(3) of the Act should speak of inadvertence, error or misconstruction---Notices would be defective and against law without such allegations.

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

----S. 32---Recovery of short levied duty---Failure to issue show-cause notice---Record showed that the Customs Staff itself either collusively or inadvertently short levied the duty for which specific notice under S. 32 of Customs Act, 1969, had to be served on the importer within the specified time---Effect---Where the Authorities failed to issue/serve any such show­ cause notice in accordance with law, demand notices issued for such recovery were without lawful authority and of no legal effect---High Court, after finding the notices to be defective and not in accordance with law, had rightly declined to remand the cases to Customs Authorities for proceedings in accordance With law, as the period prescribed by law for service, of notices had already expired and it would be a futile exercise in remanding the case to the Authorities---Like a suit for recovery of money after lapse of time prescribed by law of limitation, the recovery was unenforceable---Judgment of High Court was without any legal infirmity.

Federation of Pakistan v. Messrs Ibrahim Textile Mills 1992 SCMR 1898 ref.

Abdul Rauf Raheela, Advocate- Supreme Court for Appellants.

Sardar Khan, Advocate Supreme Court for Respondents.

Date of hearing: 20th October, 2000.

2001 S C M R 844

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Deedar Hussain Shah, JJ

TANVEER ZIA and another---Appellants

versus

Sh. MUHAMMAD BASHIR and another---Respondents

Civil Appeals Nos.449 and 450 of 1999, decided on 5th January, 2001.

(On appeal from the judgment/order, dated 25-3-1999, of the Lahore High Court, Lahore, passed in S.A.O. Nos.48 and 49 of 1996).

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

----S. 13(6)---Constitution of Pakistan (1973), Art. 185(3)---Defence, striking off---Delayed application for striking off defence, whether waiver of default---Leave to appeal was granted by Supreme Court to consider, whether the landlord having failed to file any application for striking off defence of the tenants on account of alleged default in the payment of difference in arrears of rent .for more than three years, the Rent Controller had rightly refused to strike off defence of the tenants as the action on the part of landlord amounted to waiver of the default.

Ghulam Muhammad v: Mst. Shameema Khatoon 1984 CLC 3440 ref.

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

----S. 13(6)---Defence, striking off --Application for striking off defence--­Limitation---Delayed application for striking off defence---Not waiver of right---Failure to deposit difference in arrears of rent---Tenants deposited monthly rent according to the order of Rent Controller regularly but failed to deposit the difference in old rent rate and new rent rate---Three years after passing of tentative rent order, the landlord filed application for striking off defence of the tenants and the same was dismissed by-Rent Controller---Such order of Rent Controller was set aside by Lower Appellate Court and the defence of the tenants was struck off---Order passed by Lower Appellate Court was upheld by the High Court---Validity---No time limit was fixed for submitting application for striking off defence and the same might be struck off where the tenant failed in depositing the rent---Where the landlords had not filed the application for a period of more than three years, same would not constitute waiver---Judgments passed by the two Courts below were in accordance with law and in consonance to the principles laid clown by Supreme Court in the case Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33---Judgment of High Court was not interfered by the Supreme Court.

Muhammad Salph v. Muhammad Shafi 1982 SCMR 33 rel.

Ch. Muhammad Aslam-Sandhu, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record (absent) for Appellants (in both Appeals).

Syed Najamul Hasan Kazmi, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Respondents.

Date of hearing:,5th January, 2001.

2001 S C M R 848

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Muhammad Arif and Qazi Muhammad Farooq, JJ

MUHAMMAD IBRAHIM MANGRIO and others---Petitioners

versus

CHAIRMAN, WAPDA and another---Respondents

Civil Petitions Nos.652 to 658 of 2000, decided on 28th November, 2000.

(On appeal from the judgments dated 9-2-2000 and 11-2-2000 passed by Federal Service Tribunal in Appeals Nos.23(L)CS to 29(L)CS of 2000).

(a) West Pakistan Water and Power Development Authority Act (XXXI of 1958)----

----S. 17(1-B)---Service Tribunals Act (LXX of 1973), S. 4---Employees of WAPDA---Status---Jurisdiction of Federal Service Tribunal--Scope--­Employees of WAPDA, under the provisions of S. 17(1-B) of West Pakistan Water and Power Development Authority Act, 1958, are in "Service of Pakistan" ---Such employees are deemed to be civil servants for the purposes of S. 4 of Service Tribunals Act, 1973.

WPADA v. Muhammad Ashraf Naeem 1997 SCMR 1128 ref.

(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)----

----S. 17(1-B)---Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service---Show-cause notice, non-issuance of---Failure to avail departmental remedy---Civil servants did not avail of the remedy of departmental representation by challenging the action on the ground that they were not afforded opportunity of hearing---Service Tribunal dismissed On appeals for such failure on the part of the civil servants---Validity---Remedy under S. 4 of Service Tribunals Act, 1973, could come to rescue of the civil servants only when the departmental remedy could have been availed--­Provisions of S. 17 (1-A) & (1-B) of West Pakistan Water and Power Development Authority Act, 1958, had not been declared to be against the tenets of Islam and no such effort had been made on behalf of the civil servants to obtain such directions from Federal Shariat Court under Part VII, Chap. 3-A of the Constitution---Supreme Court declined to interfere with the order passed by the Service Tribunal---Leave to appeal was refused.

Gulbat Khan v. WAPDA 1992 SCMR 1789 rel.

Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi 1993 SCMR 1440; WAPDA v. Sikandar Ali Abro 1998 SCMR 137; Federation of Pakistan v. Sheikh Abdul Aziz 1998 SCMR 91; Basharat Ali v. Director, Excise and Taxation, Lahore 1997 SCMR 1543; WAPDA v. Liaquat Ali 1998 SCMR 234; Aleem Jaffar v. WAPDA 1998 SCMR 1445; Muhammad Munir Khan v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad 1996 PLC (C.S.) 437 and Executive Engineer, WAPDA v. Rahat Shah and others 1999 SCMR 2272; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; WPADA v. Muhammad Ashraf Naeem 1997 SCMR 1128 and Syed Aftab Ahmad v. KESC 1999 SCMR 197 ref.

Pakistan v. Public-at-Large PLD 1987 SC 304 distinguished.

M.L. Shahni, Advocates Supreme Court for petitioners (in all Petitions).

Tanvir Bashir Ansari, Deputy Attorney-General for Respondents (in all Petitions).

Date of hearing : 22nd November, 2000.

2001 S C M R 857

[Supreme Court, of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

GOVERNMENT OF N.-W.F.P and others---Appellants

versus

RUHUL QUDOOS---Respondent

Civil Appeal No. 787 of 1997, decided on 20th October, 2000.

(On appeal from the judgment, dated 25-7-1996, of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeal No.619 of 1995).

North-West Frontier Province Civil Servants Act (XVIII of 1973)----

----S. 13(i)---Compulsory retirement from service---Past and closed transaction---Service Review Board, recommendations of---Civil servant, on a complaint, was suspended and later on compulsorily retired from service--­Complaint was withdrawn by the complainant during pendency of proceedings against the civil servant---Provincial Government constituted Service Review Board for redressal of grievances of civil servant---Board recommended reinstatement of the civil servant in his service---Government declined to accept the recommendation of the Board and the civil servant was not reinstated---Service Tribunal accepted the appeal of civil servant and he was reinstated with full back benefits---Contention of the Government was that the original order of compulsory retirement of the civil servant having attained finality and having become past and closed transaction, could not have been reopened, by the Service Tribunal---Validity---Government itself had reopened the matter by providing to the aggrieved person remedy of making application within thirty days which could safely be construed to be an amendment in the relevant rules of departmental appeal and representation for limited purposes of providing another remedy of making representation afresh on which the entire matter stood reopened and the alleged finality,` if any, attached to the original order had been done away with--­Recommendations of the Board and any order passed by the Competent Authority on the basis .of the same, therefore, gave fresh cause of action to the aggrieved person who could approach the Service Tribunal if he felt aggrieved of the order passed by the Competent Authority in relation to the recommendations by the Board---Contention by the Government was repelled---Recommendations of the Board were based on the considerations under the relevant laws, the annual confidential reports of the entire period of service of the civil servant were found good and the complaint against the civil servant had also been withdrawn---No proof of any act of misconduct of the civil servant, thus, existed nor any reason was given while passing the order of his compulsory retirement and the same was a fanciful and whimsical order---Service Tribunal did not commit any illegality by accepting the appeal of the civil servant and ordering his reinstatement in service with full back benefits.

Rashidul Haq Qazi, Additional Advocate-General, N.-W.F.P. for Respondent in person.

Date of hearing: 20th October, 2000.

2001 S C M R 863

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

Mrs. MUSHTAR JEHAN---Petitioner

versus

Hon'ble PRIME MINISTER OF PAKISTAN and 3 others---Respondents

Civil Petition No. 194-K of 2000, decided on 27th November, 2000.

(On appeal from the judgment, dated 16-2-2000 of the Federal Service Tribunal in Appeal No.54(K) of 1994).

Airports Security Force Act (LXXVII of 1975)----

----S. 7-A(4)---Constitution of Pakistan (1973), Art. 212(3)---Disciplinary matters---Service Tribunal, jurisdiction of---Conflicting views of Supreme Court---Insertion: of S.7-A(4) in Airports Security Force Act, 1975--­Effect---Conflicting views had been taken by Supreme Court, with regard to the jurisdiction of the Federal Service Tribunal in disciplinary matters of the officials of Airport Security. Force in view of S.7-A(4) of Airport Security Force Act; 1975---Leave to appeal was granted by Supreme Court to consider as to whether in view of the provisions of S.7-A of Airport. Security Force Act, 1975, Federal Service Tribunal was completely barred from hearing the appeal of the Airport Security Force Personnel.

Force Commander ASF v. Muhammad Rashid 1996 SCMR 1614; Gul Muhammad v. Force Commander 1999 SCMR 2935; Fasihuddin v. Khawar Latif Butt 1993 SCMR 1 and Tarab Arif Fatimi v. President of Pakistan PLI) 1994 SC 562 ref.

Kunwar Mukhtar Ahmed, Advocate Supreme Court alongwith Ahmedullah Farooqi, Advocate-on-Record for Petitioner.

Respondent No.4 in person.

Date of hearing: 27th November, 2000.

2001 S C M R 865

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Abdul Hameed Dogar, JJ

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY---Petitioner

versus

ABDUL FAREED and another---Respondents

Civil Petition No. 359-K of 2000, decided on l1th December, 2000.

(On appeal from the judgment dated 12-6-2000 of the High Court of Sindh Karachi passed in C.P. No.D-338 of 2000).

(a) N.E.D. University of Engineering and Technology Act (III of 1977)---

----S. 18---Academic Council and Syndicate---Power to regulate admissions---Scope---Academic Council and Syndicate, under the provisions of N.E.D. University of Engineering and Technology Act, 1977, are empowered to regulate the admissions of the students and frame admission policies---Syndicate in exercise of its statutory powers under S.18(2) of N.E.D. University of Engineering and Technology Act, 1977, is authorised to consider and approve the regulation proposed by the Academic Council.

(b) N.E.D. University of Engineering and Technology Act (III of 1977)----

----Ss. 6 & 18---Constitution of Pakistan (1973), Arts. 2-A, 8, 25, 37(c) & 185(3)--Admission policy---Violation of guarantees provided in S.'6 of N.E.D. University of Engineering and Technology Act, 1977--Refusal of admission to students having obtained degree of B.Tech. (Pass) from the University other than the N.E.D. University---Validity---Inclusion of such clause in the admission policy showed that the same had restricted the right of admission in the N.E.D. University only on the ground of having obtained the degree from some other University---Such classification was not only unjustified but was in clear violation of the guarantees provided in Arts-2-A, 8, 25 & 37(c) of the Constitution---Refusal of admission on such basis was also in violation of the provisions of S.6 of N.E.D. University of Engineering and Technology Act, 1977 and 'as such the classification was ultra vires of the Constitution and was not sustainable in law---Judgment of High` Court did not suffer from any illegality and was based on sound reasoning---Supreme Court declined to interfere with the same and judgment of the High Court was maintained.

Rehanul Hasan Farooqui, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Petitioner.

Respondent No: l in person.

Date of hearing: 11th December, 2000.

2001 S C M R 871

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Deedar Hussain Shah, JJ.

WALI MUHAMMAD and 10 others---Appellants

versus

Mst. SARWAR BIBI and others---Respondents'

'Civil Appeal No. 172 of 1995, decided on 29th November, 2000.

(On appeal from the judgment/order, dated 7-6-1993, of the Lahore High Court, Multan Bench, Multan, passed in R.S:A. No.796 of 1972).

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

----Art. 185(3)---Sanity---Leave to appeal was granted by Supreme Court to consider whether the Lower Appellate Court and the Judge in High Court were right in holding that the appellant . was insane at the time of sale in question.

(b) Medical Jurisprudence---

----Epilepsy, disease of---Symptoms and effects.

American Medical Association, Home Medical Encyclopaedia, Vol. One A-H ref.

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

----S. 42---Sale-deed, cancellation of---Insanity and disease of epilepsy--­Onus to prove---Plaintiff assailed the sale-deed on the ground that the vendor was suffering from epilepsy and was of unsound mind---Trial Court dismissed the suit but the Lower Appellate Court allowed the appeal and decreed the same---Judgment of the Lower Appellate Court was upheld by High Court in second appeal---Validity---Burden was on the plaintiff to prove that the vendor was of unsound mind for which he made no efforts during the trial---Trial though continued for more than five years, the plaintiffs did not move the Trial Court so that the vendor might be medically examined in that regard---Evidence adduced by the defendants was plausible, natural and there was no iota of doubt---Reasons given in favour of the plaintiffs by the Lower Appellate Court as well as the High Court were not cogent and sound and the same could not be accepted---Person suffering from epilepsy could not be termed as of unsound mind---Judgment of the Trial Court was perfectly right and was based on very valid and cogent reason in consonance with the established principles laid down by Supreme Court--­Reasoning and conclusion of the Lower Appellate Court as well as High Court was based on unsound reasoning and contrary to the evidence recorded by the Trial Court and the same could not be accepted---Judgments of the High Court as well as of the Lower Appellate Court were set aside and that of the Trial Court was restored whereby the suit filed by the plaintiffs was dismissed.

Madan Gopal v. Maran Bepari PLD 1969 SC 617; Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; Jannac Bibi v. Sher Muhammad 198$ SCMR 1696; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Atlantic Steamer's Supply Co. v. m.v. Titisee PLD 1993 SC 88; Rohini Kumar Deb Nath v. Bhagaban Chandra Deb Nath PLD 1963 Dacca 253; Muhammad Sharif v. Nawab Bibi 1993 SCMR 462; Shadi Muhammad v. Abdul Rashid 1.994 MLD 1856; Nur Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932; Muhammad Iqbal v. The State PLD 1975 Lah. 658; Ch. Abdul Hamid v. Deputy Commissioner 1985 SCMR 359; Sher Afzal v. Shamim Firdous PLD 1980 SC 228; Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; Ghulam Shabbir v. Nur Begum PLD 1977 SC 75; Pakistan Banking Council v. Ali Muhammad Naqvi 1985 SCMR 714; Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703; Radha Mohun v. Neripendra Nath AIR 1928 Cal. 154; Abdul Haque v. Suleman and others 1988 SCMR 1993; Officer on Special Duty v. Bashir Ahmad and 9 others 1977 SCMR 208 and Allah Din v. Habib PLD 1982 SC 465 and Shamman v. The State 1985 PCr.LJ 8 and American Medical Association, Home Medical. Encyclopaedia, Vo1.One A-H rel.

Ch. Imdad Ali, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellants.

Muhammad Khalid Alvi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 29th November, 2000.

2001 S C M R 883

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Abdul Hameed Dogar, JJ

MUHAMMAD AMIR and another---Petitioners

versus

THE STATE---Respondent

Jail Petition No.25 of 2000, decided on 16th January, 2001.

(On appeal from the judgment dated 31-2-2000 of the Lahore High Court, Bahawalpur Bench, passed in Criminal Appeal No.22(BWP)l99).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 11 & 10(4)---Anti-Terrorism Act (XXVII of 1997), S.12--­Constitution of Pakistan (1973), Art. 185(3)---Jurisdiction of Anti-Terrorism Court---Scope---Leave to appeal was granted by Supreme Court to consider the contentions of the accused that the Special Court constituted under the Anti-Terrorism Act had no jurisdiction to try the case, as besides the lack of jurisdiction even the charge under the relevant section of Anti-Terrorism Act had not been framed; that appeal before the High Court was also not competent on this count as well as the clear bar in the relevant law and the Constitution; that the offence under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had not been made out against the accused because the record indicated that the abductee had neither been enticed, nor taken by deceitful means or force; that the eye-witnesses to the abduction were not produced to support the prosecution case on this point and that the offence under S.10(4) of the Ordinance was also not proved as there was no cogent evidence to support the charge.

Sh. Muhammad Saleem, Advocate Supreme Court for Petitioners.

Nemo for the State

Date of hearing: 16th January, 2001.

2001 S C M R 884

Present; Irshad Hasan Khan, C.J., Ch. Muhamrnad Arif and Javed Iqbal, JJ

ABDUL QADIR ISMAIL and others---Petitioners

versus

STATE BANK OF PAKISTAN and others-- -Respondents

Civil Petitions Nos. 12 to 63, 65 to 92, 112 to 180, 185, 950 to 1113 of 2001, 2020, 1974 and 1920 of 2000, decided on 3rd April, 2001.

(On appeal from the judgment dated 19-10-2000 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 1202(R), 1205(R), 1209(R), 1210(R), 1211(R), 1212(R), 1214(R), 1220(R), 1223(R), 1225(R), 1226(R), 1230(R.), 1234(R), 1236(R), 1238(R), 1242(Rj, 1244(R), 1246(R), 1247(R), 1248(R), 1253(R), 1257(R), 1259(R), 1340(R), 1342(R), 1344.(R), 1345(R), 1346(R), 1350(R), 1351(R), 1352(R), 1353(R). 1354(R), 1357(R), .1358(R), 1360(R), 1655(R), 1656(R), 1659(R), 1661(R), 1662(R), 1666(R), 1667(R), 1668(K), 277(K), 278(K), 279(K), 280(K), 281(K), 283(K), 284(K), 285(K), 288(K), 289(K), 290(K), 291(K), 29(K), 294(K), 295(K), 296(K). 297(K), 298(K), 299(K), 300(K), 301(K), 302(K), 303(K). 304(K), 305(K) 306(K), 307(K); 309(K), 347(K), 348(K), 349(K), 350(R), 483(P)/98, 1069(R), 1072(R), 1075(R), 1200(K), 1202(K), 1203(K), 1204(K), 1206(K), 1207(K), 1208(K), 1213(K), 1215(K), 1216(K), 1217(K), 1218(K), 1219(K), 1221(K), 1222(K), 1224(K). 1227(K), 1228(K), 1229(K), 1231(K), 1232(K), 1233(K), 1235(K), 1237(K), 1239(K), 1240(K), 1241(K), 1243(K), 1245(K), 1200(K), 1249(K), 1250(K), 1251(K), 1252(K), 1254(K), 1255(K), 1256(K), 1258(K), 1260(K), 1261(K), 1262(K), 1263(K), 1264(K), 134-1(K), 1343(K), 1347(K), 1348(K), 1349(K), 1355(K), 1356(K), 1359(K), 1361(K), 1362(K), 1363(K), 1364(K), 1366(K), 1367(K), .1401(K), 1652(K), 1653(K), 1654(K), 1657(K), 1658(K), 1660(K), 1663(K), 1664(K),1665(K), 1669(K), 1670(K), 1653(K). 1199(K), 286(R) and 1198(K) of 1998.

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

----Art. 212(3)---State Bank of Pakistan Personnel Department Circular No.9 dated 23-10-1997---State Bank of Pakistan Personnel Department Circular No.12 dated 29-11-1997---State Bank of Pakistan Personnel Department Circular No.13 dated 29-11-1997---Petition for leave to appeal---Retirement benefits ---Floating of Voluntary Golden Handshake Scheme and employees of the Bank holding different posts in the Bank exercised their option within the stipulated period and they were informed in writing on 3-12-1997 that their option 4ad been accepted and that they would be relieved of their duties with effect from 15-12-1997---Bank, meanwhile, raised the salary structure vide its Circular No. 12 dated 29-11-1997 which was to become effective from 1-12-1997 and certain other changes were also introduced vide Bank's Circular No. 13 dated 29-11-1997---Employees continued performing their duties till 15-12-1997 they were relieved on the said date and were paid remuneration as per revised salary structure for the period 1-12-1997 to 15-12-1997 but prepared and. calculated the emoluments to be paid to the employees under the Voluntary Golden Handshake Scheme not on the basis of last pay drawn i.e. having become effective from 1-12-1997 (revised pay structure) but on the basis of pay ,drawn on 22-11-1997 i.e. old pay structure---Contentions of the employees were that they were deprived of huge amounts by less payment under various heads; that option of Golden Handshake was obtained from them under threat and coercion and by misrepresenting the facts; that they were officially relieved from service of the Bank on 15-12-1997, therefore Service Tribunal erred in taking the view that the employees stood retired from the service of the Bank on 23-11-1997 i.e. the day after the last date for making an application to opt for voluntary retirement. under the Scheme introduced by the Bank; that they were entitled to retirement benefits under Golden Handshake Scheme and the same were to be calculated in accordance with the salary structure in effect on the date on which they were relieved from their, official duties i.e. 15-12-1997; that they were entitled to the increase in pension allowed by Bank's Circular No.9 dated 1-8-1998 and Circular No.4 dated 9-5-2000 which provided for calculation of pension on the basis of the, salary structure in effect since 1-12-1997; that Service Tribunal had erred in failing to examine in depth the plea that Golden Handshake Scheme was introduced by suppressing the date of 23-10-1997 when the Bank had issued Circular No.9 introducing the Golden Handshake Scheme and had also taken a decision to increase the pay scale by 47 % and that since the decision to increase pay scales was kept hidden from, the employees, therefore, the employees were entitled to reinstatement in the service of the Bank---Validity---Exercise of option by the employees in. favour of the Scheme was accepted by the Competent Authority and by virtue of the said acceptance the employees were directed to be relieved from service with effect from the close of business on 15-12-1997---Bank had informed all its employees that the Central Board of the Bank in its meeting. held on 22-10-1997 had approved a revised salary package for its employees effective from 1-12-1997 in respect of specified scales---Policy of revised salary of each employee was fixed in the new scales on the basis of his/her respective position in the present scale in accordance with the approved formula---All the aggrieved employees were in the employment of the Bank on 1-12-1997 when the revised salary structure became effective notwithstanding the fact that they' had earlier opted for Golden Handshake Scheme and the same was accepted by the Bank on 3-12-1979---All the aggrieved employees were paid the revised salary for the period 1-12-1997 to 15-12-1997 i.e. up to the date when they were relieved from the service under Golden Handshake Scheme---Supreme Court, converted the petitions for leave to appeal and disposed the same by modifying the impugned judgment of the Service Tribunal to the extent that pension admissible to the employees shall be calculated after bringing same to bear upon such calculation the number of days spent by them in service after their Volition to abide by Voluntary Golden Handshake Scheme i.e. that all the pensionary benefits shall be calculated by taking into account the period between 1-12-1997 to 15-12-1997.

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

----Art. 212(3)---Petition for leave to appeal to Supreme Court---Question of law of public importance---Determination---Principles---Persons who were adversely affected by the contrary decision were a group in themselves and for the purpose of resolution of the dispute to the extent of a group/substantial number of the employees of the State Bank of Pakistan, the question of its, general application was to be considered in the context of the situation---Cases of employees, thus involved a substantial question of law of public importance within the contemplation of Art.212(3) of the Constitution.

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

----Art. 212(3)---Petition for leave to appeal---Sole grievance of the employer-Bank was that observation of the Service Tribunal in the impugned judgment to the effect that "during the course of hearing, the departmental representative candidly submitted that the income-tax recovered from the appellants will be reimbursed to them" was based on erroneous assumption of fact in that neither any counsel for the employer---Bank nor any representative of the employer-Bank made any statement before the Service Tribunal during the course of proceedings that income-tax will be reimbursed to the employees---Supreme Court, with consent of the counsel of the parties, remitted the case to the Service Tribunal to examine the question afresh in the light of the affidavit of a functionary of the employer-Bank, after hearing the parties and holding such inquiry as the Tribunal may deem fit and if it was established that no such statement was made as attributed to the departmental representative of the employer-Bank, the observations of the Service Tribunal shall be deleted otherwise same will remain intact.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos. 12 to 55 of 2001).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners (in C.P. No.2019 of 2000 and C.Ps. Nos. 112 to 180 of 2001).

Muhammad Munir Peracha; Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps.Nos.56 to 63 of 2001 and C. Ps. Nos. 65 to 92 of 2001).

M. Bilal, Senior Advocate Supreme Court and K.M.A. Samadani, Advocate Supreme Court (on Court's Notice) for Respondents (in all Petitions) and Petitioners in C. Ps. Nos. 950 to 1113 of 2001.

Date of hearing: 2nd April, 2001.

2001 S C M R 894

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri , and Hamid Ali Mirza, JJ

MUHAMMAD WARIS----Petitioner

versus

MUHAMMAD ARSHAD and another----Respondents

Civil Petitions Nos. 1502 and 1503 of 2000, decided on 6th October, 2000.

(On appeal from the order, dated 22-2-2000 of the Lahore High Court, Lahore on C.M.No.1/C of 1999 in Civil Revisions Nos.411-D and 412-D of 1999).

Limitation Act (IX of 1908)----

-- S. 5---Constitution of Pakistan (1973), Art.185(3)---Condonation of delay--Illness stated to be the cause of delay---Failure to file medical certificate---Effect---Revision was barred by time---Cause for the delay was stated to be illness---Application for condonation of delay was filed and the same was supported by affidavit---Neither any counter-affidavit was filed, nor any material was placed on the record to counter the plea of illness--­High Court condoned the delay by accepting the plea of illness---Validity--­Where other reliable material was available to support the ground of ailment -and no rebutting material had been brought on record by the contesting party, it was not for, all the time necessary to file medical certificate when illness was taken as a ground for condonation of delay---High Court, in view of the material on record, found that sufficient cause was made out for condonation of delay---Such finding of fact could not be interfered by Supreme Court---Leave to appeal was refused.

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th October, 2000.

2001 S C M R 896

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Syed Deedar Hussain Shah, JJ

Mst. NASIM AKHTAR----Petitioner

versus

Rao ABDUL HAMEED and another----Respondents

Civil Petition for Leave to Appeal No.289_8-L of 2000, decided on 17th January, 2001.

(On appeal from the judgment dated 30-10-2000 of the Lahore High Court, Lahore passed in C.R. No.479-D of 1985).

Specific Relief Act (I of 1877)---

----Ss.9 & 12---Civil Procedure Code (V of 1908), O.XXIII, R.3---Contract Act (IX of 1872),. S.2-A---Constitution of Pakistan (1973), Art.185(3)--­Specific performance of agreement---Statement in Court whether a binding contract--Suit under S.9 of Specific Relief Act, 1877, was disposed of under the provisions of O.XXIII, R.3, C.P.C.---Petitioner for the enforcement of the compromise had filed suit for specific. performance---Trial Court dismissed the suit and the judgment was upheld by Lower Appellate Court--­Revision petition was also dismissed by the High Court---Contention of the petitioner was that the offer had brought into existence valid lawful agreement between the parties and the same could be given effect to as compromise within the contemplation of O.XXIII, R.3, C.P,C.--­Validity---Lower Appellate Court had rightly found that the offer was hot an offer within the contemplation of S.2-A of Contract Act, 1872, and did not bring into existence any binding contract between the parties and the same could not be construed to have reserved a right in the petitioner to use the same as contract by seeking independent remedy which would only mean that except remedy in relation thereto as a contract, the petitioner could, if available pursue any other remedy---Where the suit was rightly found to be not maintainable in view of the findings of the Court in the suit under S.9 of Specific Relief Act, 1877, the same could neither be gone , into nor challenged in the suit---Leave to appeal was refused.

Mian Allah Nawaz, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Dr. M. Mohiuddin Qadri, Advocate Supreme Court for Respondents..

Date of hearing: 17th January, 2001

2001 S C M R 901

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

MUHAMMAD RIAZ----Petitioner

versus

SECRETARY, MINISTRY OF KASHMIR AFFAIRS AND NORTHERN AREAS, GOVERNMENT OF PAKISTAN and 15 others----Respondents

Civil Petition No.206 of 2000, decided on 19th January, 2001.

(On appeal from the judgment, dated 9-12-2000 Federal Service Tribunal, Islambad, passed in Appeal No.770(R)CS of 2000).

Constitution of Pakistan (1973)----

----Arts.1(2)(d), 260 & 212(3)---Service of Pakistan---Northern Areas whether territories forming part of Pakistan---Service Tribunal had not considered the petitioner as civil servant and his appeal was dismissed--­Leave to appeal was granted by Supreme Court to consider as to whether the Executive Authority of the Federation of Pakistan having been exercising its power and continuous occupation of the Northern Areas for the last 52 years, the employees of the Northern Areas were discharging their functions in connection with the affairs of the Federation which squarely fell within the ambit of "Service of Pakistan" as defined in Art.260 of the Constitution; whether the territories of Northern Areas found mention in Art. 1(2)(d) of the Constitution and, therefore, form part of Pakistan and whether the question that the territories known as "Northern Areas" did or did not form part of the Federation was not determinable by the Service Tribunal in the light of principles enunciated by Supreme Court in The Superintendent, . Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others (PLD 1969 SC 485) and Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs. Islamabad and 3 others (1999 SCMR 1379).

The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485 and Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 ref.

Sheikh Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 19th January, 2001.

2001 S C M R 903

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Dr. GULSHAN ALI and 4 others----Petitioners

versus

SINDH PUBLIC SERVICE COMMISSION through Chairman and 8 others----Respondents

Civil Petitions Nos.304-K to 308-K of 1999, decided on 17th August, 2000.

(On appeal from the judgment, dated 16-3-1999 of the High Court of Sindh in Constitutional Petitions Nos.D-164, D-165, D-166, D-167, D-168 and D-169 of 1998).

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----Rr. 3 & 10---Constitution of Pakistan (1973), Art.185(3)--­Appointment---Appointment of respondents was challenged by petitioners on the ground that advertisement was initially made for inviting applications for three posts of Assistant Professors, but through a subsequent advertisement applications for. six posts were invited with a view to accommodate respondents who had links with highly influential political person and that petitioners were more suitable than the respondents---Validity---Mere fact that, the posts were re-advertised, would not by itself be sufficient to hold that it was done malafidely to accommodate the respondents---Petitioners did not dispute the eligibility of respondents for the advertised posts, but had simply contended that they were better suited for the said jobs---Petitioners had failed to show that Authority in appointing the respondents had acted dishonestly, mala fide and unlawfully---Opinion/recommendation of the Authority for the appointment of respondents with regard to their fitness and suitability falling within the competence of the Authority, could not be interfered with in absence of good reasons---Petition for leave to appeal was dismissed.

Amir Hani Muslim, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th August, 2000.

2001 S C M R 905

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif Munir A. Sheikh and Qazi Muhammad Farooq, JJ

Haji KHAWAR SALEEM----Petitioner

versus

THE STATE----Respondent

Criminal Petitions Nos.394-L and 395-L of 2000, decided on 2nd August, 2000. .

(On appeal from judgment/order, dated 22-5-2000 of the Lahore High Court passed in Criminal Miscellaneous No.124-T of 2000 and Criminal Revision No.267 of 2000).

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

----S.526---Penal Code (XLV 'of 1860), S.228---Constitution of Pakistan (1973), Art. 185(3)---Transfer of case---Sessions Court had issued notice to the accused for appearance before it on a specified date, but he did not appear---Sessions Judge on the said date observed in his order that the report as received against the accused on the process issued "did not depict whole image of his conduct" and without examining the process-server to ascertain the real facts and circumstances under which objectionable part of- the report was made, he proceeded to pass an order directing the accused to submit his bond in the sum of Rupees one lac with two sureties each in the like amount to the satisfaction of the Court failing which he was ordered to be detained in lock-up till the submission of bail bond---No allegation had been made by the accused against the person, of the Sessions Judge in the transfer application and the transfer of the case was sought on the ground that keeping in view the manner in which the proceedings were taken and orders were passed, he could legitimately entertain an apprehension- that he would not be treated fairly---Supreme Court without expressing any opinion as to whether the apprehension entertained by the accused was justified or not, but keeping in view over all circumstances of the case, transferred the case to another Court in the interest of justice---Petition for leave to appeal was converted into appeal and accepted accordingly.

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

----S.526---Transfer of case---Principle---Transfer of a case pending in a competent Court cannot be claimed as a matter of routine or at the wish of any of the parties unless it is apparent on the face of the record that party seeking transfer cannot get fair and just treatment/trial.

N.A. Butt, Advocate Supreme Court and Tanvir Ahmad, Advocate-­on-Record for Petitioner.

Miss Yasmin Sehgal, A.A.-G. for State.

Date of hearing: 2nd August, 2000.

2001 S C M R 909

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

AURANGZEB----Petitioner

versus

Messrs GOOL BANO Dr. BURJOR ANKALSERIA and others----Respondents

Civil Petition No. 12-K of 2000, decided on 21st August, 2000.

(On appeal from the judgment of the High Court of Sindh, dated 20-10-1999 passed in R.A. No.203 of 1995).

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

----S. 42---Suit for declaration that order of reversion of employee was illegal---Master and servant, relationship of----Employment on contract--­Wrongful reversion---Remedy---Where relationship between the parties was that of master and servant a person serving under such contractual employment at the best could claim damages for his wrongful reversion to a lower post---Suit for declaration was not maintainable.

(b) Master and servant---

---- Principle of master and servant---Applicability---Exception---Contractual employment ---Satutory rules---Effect of---Where the relationship was based on a contract freely entered into by the parties then the principle of master and servant was applicable---Such principle was not applicable if- some law or statutory rules intervened and placed fetters upon freedom of the parties in the matter of the terms of the contract.

Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

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

---Art. 185(3)---Master and servant, relationship of---Concurrent findings of facts by the Courts' below---Petitioner was employee of charitable trust and was reverted to lower post---Such order of reversion was assailed in civil suit---Trial Court dismissed the suit and appeal before High Court was also dismissed---Validity---Judgment of the High Court was neither arbitrary nor in violation of the settled principles of law---Supreme Court declined interference---Leave to appeal was refused.

Anwar.Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

Shafaat Hussain, Advocate Supreme Court for Petitioner.

M.G. Dastgir, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 21st August, 2000.

2001 S C M R 912

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

WALI MUHAMMAD KHOKHAR----Petitioner

versus

GOVERNMENT OF SINDH and others----Respondents

Civil Petition No.305-K of 2000, decided on 21st July, 2000.

(On appeal from the order, dated 22-5-2000 of the Sindh Service Tribunal, Karachi, passed in Appeal No.330 of 1999).

Constitution of Pakistan (1973)---

----Art.212(3)---Sindh Service Tribunals Act (XV of 1973), S.4--­Termination of service--Appeal before Service Tribunal ---Limitation--­Ignorance of law, plea of---Validity---Civil servant's service was terminated and he having been unsuccessful in his departmental appeal, another appeal before the department and thereafter filed review petition without success--­Appeal filed before Service Tribunal was dismissed being time-barred--­Contention of the civil servant was that he was unaware about the time limit regarding filing of appeal---Validity---Ignorance of law was no excuse---No provision for review or second appeal or third appeal was provided in law--- Civil servant had resorted to ways and means which were not prescribed under the law resulting in inordinate delay of nine months---Such delay had not been condoned by the Service Tribunal as no reasonable justification was available for such delay---Service Tribunal had arrived at the decision with full application of mind and appreciation of facts of the case--- Judgment of Service Tribunal did not suffer from any infirmity justifying interference by Supreme Court---Where the Service Tribunal had dismissed the appeal on the ground of limitation without touching upon the merits of the case, the same would not render the order under appeal legally infirm, so as to warrant interference by Supreme Court---Leave to appeal was refused.

1996 SCMR 280 and PLD 1990 SC 692 ref.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 21st July, 2000.

2001 S C M R 914

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

IBRAR HUSSAIN and other ----Petitioners

versus

GOVERNMENT OF N-WF.P. through Secretary, Board of Revenue and others----Respondents

Civil Appeals Nos.114, 119, 120 121, 122, 192, 224 and 225 of 2000 decided on 16th January, 2000.

(On appeal from the judgments date 13-3-1999, 18-5-195 6-4-1999, 12-6-1999 and 30-6-1999. passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeals No.340 of 1998, 1278 of 1997, a of 1999, 854 of 1997 and 27 19 respectively)

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

----S.5--Constitution of Pakistan (1973), Art.212(3)---Leave to appeal granted by Supreme Court to consider, whether appeal of civil servant before the Tribunal was not maintainable in view of the pendency of departmental appeal before the Departmental Authority wherein statutory period of 90 days had not elapsed; whether Chairman of Service Tribunal could not finally hear and dispose of appeal on merits while sitting alone as the same was violative of the first proviso to S.5(1) of North-West Frontier Province Service Tribunals Act, 1974.

(b) Interpretation of statutes---

---- Proviso to a statute-- -Effect - Statute has to be read as a whole and not in bits and pieces---Function ascribed to a proviso detailed.

Following three functions are ascribed to a proviso:--

(1) To exempt something from. the enacting clause;

(2) to qualify or restrain its generality;

(3) and to exclude some possible misinterpretation of it as extending to cases not intended by Legislature.

It is, therefore, duty of the court to reconcile the enacting clause and the proviso and to avoid repugnancy between the two, proviso must be considered with relation to the principal clause to which it is attached---Ordinarily, a proviso is governed by the operative portion of the section.

Special Reference No. l of 1957 by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan, 1956 PLD 1957 SC (Pak.) 219; Statutory Construction by Crawford, 1940 Edn., pp. 128, 129; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mst. Nawab Bibi and 3 others v. Ch. Allah Ditta and others 1998 SCMR 2381 and Bindra's Interpretation of Statutes, 7th Edn., pp. 74, 75, 77 ref.

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

----S.5---Chairman of Service Tribunal---Jurisdiction of---Disposal of appeals by the Chairman alone---Validity---Appeal could be heard at mine stage by the Chairman alone, or the Chairman and one or more members and while hearing such appeals the same tray be dismissed in limine for reasons to be recorded---Where the appeal .was admitted to regular hearing, the same could not be finally disposed -of on merits by the Chairman alone---Disposal of appeal by the Chairman alone was not warranted under the provisions of North-West Frontier Province Service Tribunals Act, 1974---No bar was placed on the Chairman or any of the Benches contemplated under 8.5 of North-West Frontier Province Service Tribunals Act, 1974, to admit the appeal to regular hearing or to dismiss the same in limine for reasons to be recorded in writing---Orders of the Chairman were coram non judice and were of no legal effect and the same were quashed---Judgment of Service Tribunal was set aside and case was remanded to the Tribunal for decision afresh on merits by the appropriate Bench to be nominated by the Chairman---Supreme Court observed that orders passed by the Chairman alone stood on a different footing and were hit by the doctrine of past and closed transaction.

Khushdil Khan, Advocate Supreme Court and Zahoor Qureshi, Advocate-on-Record for Appellants (in C. As. Nos. 114 and 119 of 2000).

S. Safdar Hussain, Advocate-on-Record for Appellant (in C.A. No. 120 of 2000).

Javaid A. Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Appellant (in C.A. No. 121 of 2000).

Haji M. Zahir Shah, Advocate-on-Record (in C. A. No. 122 of 2000) for Appellant.

M. Asif, Advocate Supreme Court for Appellant (in C.A. No. 192 of 2000).

K.G. Sabir, Advocte-on-Record (absent) for Appellants (in C.As. Nos.224 and 225 of 2000).

Imtiaz Ali, Addl. A.G., N.-W.F.P. for Respondents.

Respondent No. 3 in person (in C. A. No. 120 of 2000).

Date of hearing: 16th January, 2001.

2001 S C M R 923

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUKHTAR AHMED SIDDIQUI~---Petitioner

versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE, ISLAMABAD and others----Respondents

Civil Petition No.367-K of 2000, decided on 5th September, 2000.

(On appeal from the judgment of the Federal Service Tribunal dated 25-5-2000 passed in Appeal No. 1008(K) of 1998).

Constitution of Pakistan (1973)----

----Art.212(3)---Service Tribunals Act (LXX of,1973), S.4---Appeal before Service Tribunal---Locus standi---Assailing terms and conditions of service after retirement---Post was upgraded after retirement of civil servant--­Grievance of the civil servant was that the benefit of upgradation was not given to him---Service Tribunal dismissed the appeal for the reasons that the civil servant had no locus standi to be benefited by such upgradation--­Validity---Civil servant did not have any cause of action as he stood retired from service on 1-7-1984 whereas upgradation of the post was notified in 1994 as such he had no locus standi to get any benefit of such upgradation--­Order of the Service Tribunal had no flaw or legal infirmity as the same was well-reasoned---Supreme Court declined interference---Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 5th September, 2000.

2001 S C M R 924

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Deedar Hussain Shah and Hamid Ali Mirza, JJ

GOVERNMENT OF SINDH through Secretary; Services and General Administration Department, Government of Sindh, Karachi and 2 others----Petitioners

versus

GHULAM SARWAR SANGI and 10 others----Respondents

Civil Petition No.363-K of 2000, decided on 30th August, 2000.

(On appeal from the judgment dated 23-5-2000 of the Sindh Service Tribunal at Karachi in Appeal No. 158 of 1999).

Constitution of Pakistan (1973)---

----Art.212(3}---Sindh Service Tribunals Act (XV of 1973), S.4---Seniority, fixation of---Failure to follow the Notification issued by Government--­Effect---Grievance of the civil servant was that his seniority was not fixed as directed by the Government in its Notification---Service Tribunal allowed, the appeal and directed the Authorities to fix the seniority as directed by the Government---Notification of the Government in question had neither been recalled nor the same had been challenged by any of the civil servants---Judgment of Service Tribunal Was well-reasoned and did not call for interference of Supreme Court---Leave to appeal was refused.

Ainuddin, Additional Advocate-General, Sindh for Petitioner.

Nemo for Respondents.

Date of hearing: 30th August, 2000.

2001 S C M R 927

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Deedar Hussain Shah, JJ

RAUF AKHTAR FAROOQI and others ---Petitioners

versus

DIRECTOR-GENERAL, KARACHI DEVELOPMENT AUTHORITY (KDA), KARACHI and others---Respondents

Civil Petition for Leave to Appeal No. 197 of 2001, decided on 15th January, 2001, (On appeal from the judgment/order, dated 4-12-2000, of the High Court of Sindh, Karachi, passed in HCA No.206 of 2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Sindh Service Tribunals Act (XV of 1973), S.3-E [as amended by Sindh Service Tribunals (Amendment) Act XXXI of 1994)]--­Terms and conditions of service---Employees of Karachi Development Authority---Inquiry report against the employees of the Authority was assailed in civil suit before High Court---Plaint was rejected by High Court as the matter related to exclusive jurisdiction of Service Tribunal under the provisions of Art.212 of the Constitution---Validity---Authority was a statutory body working under Provincial Government and after insertion of S.3-E in Sindh Service Tribunals Act, 1973 by Sindh Service Tribunals (Amendment) Act, 1994, the employees were required to approach the proper forum for relief---Judgment passed by High Court was well-reasoned and based upon judicial principles and there was no misreading or non­-reading of evidence or any jurisdictional error and thus was not open to any exception---Leave to appeal was refused.

Abdur Rashid v. Additional District Judge 1983 CLC 443; Moinul Islam v. Government of Sindh 2000 PLC (C.S.) 1172; Abbasia Cooperative Bank v. Muhammad Ghaus PLD 1997 SC 3; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 and Muhammad Azhar v. General Manager (Operation) Power, WAPDA PLD 1990 Lah. 352 distinguished.

Fazle Ghani Khan, Senior Advocate Supreme Court and M.S Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 15th January, 2001.

2001 S C M R 931

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Deedar Hussain Shah and Hamid Ali Mirza, JJ

HAFEEZ SHAH and 3 others----Petitioners

versus

UNITED BANK LIMITED and 2 others---Respondents

Civil Petitions Nos. 306-K to 309-K of 2000, decided on 31st August, 2000.

(On appeal from the judgment dated 26-4-2000 of the Federal Service Tribunal in Appeals Nos.595(K), 596(K), 599(K) and 603(x) of 1997).

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)----

----S. 15(4)---Dismissal from service---Ex parte order---Notice of inquiry---failure to give such notice to the employees---Contention of the employer ­bank was that notice of inquiry was issued to the employees but they failed to join the inquiry, ex parte order was passed and the employees were dismissed from service---Service Tribunal dismissed the appeals of the employees---Validity---Provisions of S.15(4) of West Pakistan Industrial and Commercial Employment (Standing' Orders) Ordinance, 1968, were mandatory and their non-observance would vitiate the proceedings---Letters issued in the present case were not served upon the employees and their dismissal orders were passed without hearing them---Neither charge­sheet/show-cause notices were duly served upon the employees, nor any opportunity (if hearing after completion of the alleged inquiry was given to them---Proceedings with regard to the dismissal of the employees having been conducted in violation of natural justice and law same could not be sustained---Orders of the Tribunal dismissing the appeals of the employees were set aside---Petition for leave to appeal was converted into appeal by the Supreme Court and the Authorities were directed to reinstate the employees with all back benefit.

M.L. Shahani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioners.

Umer Qureshi, Advocate Supreme Court and N.M. Sheikh, Advocate-on-Record for Respondents. .

Date of hearing: 31st August, 2000.

2001 S C M R 934

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC) through Chairman and others---Appellants

versus

NASIR JAMAL MALIK and others---Respondents

Civil Appeals Nos. 330 to 337 and 436 of 1999, decided on 6th November, 2000.

(On appeal from the judgment dated 21-1-1999 and 1st March, 1999 passed by Federal Service Tribunals, Islamabad, in Appeals Nos. 719, 720, 722, 723, 739, 740, 742 and 743 (R) of 1998).

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

----S. 2-A---Constitution of Pakistan -(1973.), Art. 212(3)---Employees of Pakistan International Airlines Corporation---Jurisdiction of Service Tribunal---Scope---Leave to appeal was granted by Supreme Court to consider, whether Service Tribunal was right in ordering the reinstatement of the employees of P.I.A. into service.

Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232 and United Bank Limited v. Ahsan Akhtar 1998 SCMR 68 ref.

(b) Pakistan International Airlines Corporation Act (XIX of 1956)---

----Ss. 29 & 31---Pakistan International Airlines Corporation (Service) Regulations, 1985---Pakistan International Airlines Corporation (Service) Regulations. 1985 have no statutory backing---Regulations were neither framed with the previous sanction of the Federal Government nor were laid before the National Assembly---In case of non-adherence to S.31 of Pakistan International Airlines Corporation Act, 1956, the Regulations would not have the protection of the Act, and therefore, same could not be termed to be the Regulations having statutory backing.

Mrs. Anisa Rehman v. P.I.A.C: and others 1994 SCMR 2232 rel.

(c) Pakistan International Airlines Corporation Act (XIX of 1956)---

----Ss. 29, 30 & 31---Corporation and its employees ---Relationship--­Principle of master and servant---Applicability---Where Service Regulations and Rules had not been promulgated in terms of Ss.29, 30 & 31 of Pakistan International Airlines Corporation Act, 1956, relationship between the employer and employees in the organization of the Corporation was governed by the principle of master and servant.

1999 PLC (C.S.) 1539 rel.

(d) Master and servant---

---- Maxim "audi alteram partem"---Applicability---Employer, who itself hid framed Rules as well as Regulations for its domestic purposes, was bound to strictly 'follow/adhere to the same---Deviation from such Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i.e. no one is to be condemned unheard---Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action.

Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Chief Commissioner, Karachi v. Mrs. Dina Schrab Katrak PLD 1959 SC (Pak.) 45; Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another, PLD 1961 SC 537; Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Messrs East-End .Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605; Pakistan and others v. Public-at­-Large and others PLD 1987 SC 304; Khaliluz Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and Faqir Ullah v. Khalil-uz-­Zaman and others 1999 SCMR 2203 ref.

(e) Master and servant---

----Natural justice, principles of ---Termination of service---Stand taken by the appellants before Federal Service Tribunal reflected mala fide of the appellants in removing the respondents from their services---Where before termination ,order, no opportunity was given to the employees to defend themselves against unilateral adverse action intended to be taken against them, services of the employees were terminated in violation of principles of natural justice.

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

----Ss. 2-A & 4---Termination of service---Locus poenitentiae, principle of--­Relationship of master and , servant---Failure to give show-cause notice=-­Employees of statutory Corporation were terminated from service without any prior notice---Service Tribunal allowed the appeals and the employees were reinstated in their service---Contention of the employer Authorities was that the relationship between the employer and employees was that of master and servant and services could be terminated without any notice ---Validity--­Competent Authority, in view of principle of locus poenitentiae was empowered to rescind or cancel earlier order passed by it, if no decisive steps had been taken or if it was shown that the order was illegal, then no perpetuity could be attached to it---Employees had served for a period of more than six months and the Appointing Authority -withheld the reasons for terminating their services---Where the appointment letters were issued contrary to the rules, the Authorities could exercise jurisdiction to cancel such appointment letters, but the employees should have been provided opportunity to defend against the action of the authorities---Authorities were directed to reinstate the employees in service---Authorities would, however, be at liberty to initiate fresh action against the employees if so advised in view of observation made by the Court.

Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232; United Bank Limited v. Ahsan Akhtar 1998 SCMR 68; 1999 SCMR 894; 1999 SCMR 1526; PLD 1999 SC 11.06; PLD 1990 SC 666; Mahmood Hussain v. Pakistan International Airlines and others 1.989 PLC (C.S.) 549; The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and

Abdul Haque Indhar and others v. Province of Sindh through -Secretary, Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907 ref.

Anwar Kamal, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Appellants (in Appeals Nos. 330 to 337 of 1999).

Naeem Bokhari, Advocate Supreme Court and Imtiaz Muhamrnad Khan, Advocate-on-Record for Appellant (in Appeal No. 436 of 1999).

Raja M. Asgahr, Advocate Supreme Court, Hafiz S.A. Rehman, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in all Cases).

Date of hearing: 6th November, 2000.

2001 S C M R 946

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

BAQIR----Petitioner

versus

Mst. SHAMIM BIBI and others----Respondents

Civil Petition No. 1493-L of 2000, decided on 4th January, 2001.

(On appeal from the judgment dated 24-4-2000 passed by Lahore High Court, Multan Bench in Civil Revision No.111/2000).

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 115---Constitution of Pakistan (1973), Art.185(3)--­Application for setting aside the decree without allegation of fraud or misrepresentation---Maintainability---Appeal before Lower Appellate Court was disposed of against the petitioner on the basis of special oath on the Holy Quran---Petitioner filed application under S.12(2), C.P.C. alleging connivance of his counsel with the respondents---Such application was dismissed by Lower Appellate Court and revision before High Court was also dismissed---Validity---Where the application lacked allegation of fraud or misrepresentation such application was not liable to be entertained and Lower Appellate Court had rightly dismissed the same---High Court had no occasion to interfere in the order of Lower Appellate Court in exercise of jurisdiction under S.115, C.P.C., because the order before High Court was not suffering from any jurisdictional error, illegality or irregularity---Merely on the basis of an afterthought statement made by petitioner, order dismissing of appeal passed on the. basis of statement of respondent given by him on the Holy Qur'an could not be interfered with---No legal point of public importance having been raised Supreme Court declined to interfere in exercise of its jurisdiction under Art.185(3) of the Constitution---Leave to appeal was refused.

Shahid Hussain Kadri, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th January, 2001.

2001 S C M R 949

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Messrs CAWASJEE & SONS----Petitioners

versus

BOARD OF TRUSTEES, E.O.B.I. and another----Respondents

Civil Petitions Nos. 173-K to 175-K of 2000, decided on 17th August, 2000.

(On appeal from the judgment of the High Court of Sindh, dated 17-2-2000 passed in Writ Petitions Nos.2452, 2484 and 2485 of 1995).

Employees' Old-Age Benefits Act (XIV of 1976)---

----Ss.2bb & 9---Constitution of Pakistan (1973), Art.185(3)---Liability of contribution---Determination---Contribution of payment in respect of wages paid to Dock workers provided by Dock Labour Board---Petitioners were in the business of stevedoring at sea port and were providing services in connection with loading and unloading of cargo---Authorities demanded contributions in respect of wages paid to such workers engaged by the petitioners from time to time---After having been unsuccessful before the Authorities the petitioners assailed the demand before High Court in its Constitutional jurisdiction which was dismissed---Validity---Where the employees fell within the definition of S.2bb, Employees' Old-Age Benefits Act, 1976, only then the liability of contribution should be determined in accordance with S.9 read with other provisions of Employees' Old-Age Benefits Act, 1976---Persons in respect of whom contribution was demanded, had been rightly found to be employees in terms of S.2bb of Employees' Old-Age Benefits Act, 1976, by the Courts below---Mere fact that the employees in question were working on part-time basis could not be a valid reason for excluding them from the category of employees as envisaged by S.2bb of the Act---High Court in dismissing the Constitutional petition had neither acted arbitrarily nor in violation of the settled principles of law---Leave to appeal was refused.

Veera v. Kazi and Kazi Limited PLD 1990 SC 435 ref.

Lahore Race Club v. Deputy Director, Employees' Old-Age Benefits Institution 1998 SCMR 1571 fol.

Akbar Hayat Mirza, Advocate Supreme Court for Petitioners.

S. Zaki Muhammad, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 17th August, 2000.

2001 S C M R 953

[Supreme Court of Pakistan]

Present: Ajmal Mian and Sh. Riaz Ahmed, JJ

MUHAMMAD ALTAF and others----Petitioners

versus

ABDUR REHMAN KHAN and others----Respondents'

Civil Petition for Leave to Appeal No. 134-K of 1997, decided on 24th November, 1997.

(On appeal from the judgment, dated 11-2-1997 of the High Court of Sindh, Karachi, passed in H.C. Appeal No. 157 of 1996).

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Constitution of Pakistan (1973), Art.185(3)---Plaint, rejection of ---Averments contained in plaint, effect of---Allegation of fraud---Such allegation was raised in the plaint but Single Judge of High. Court allowed the application under O.VII, R.11, C.P.C. and rejected the suit---Appeal before Division Bench of High Court was allowed and order of the Single Judge was set aside ---Validity---Averments contained in plaint were presumed to be correct for the purpose of application under O.VII, R.11, C.P.C.---Division Bench of High Court had rightly pointed out that allegation of fraud which was also averred in the plaint could not have been resolved without recording evidence---Single Judge being not justified in non-suiting the plaintiffs under O.VII, R.11, C.P.C. leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th November, 1997.

2001 S C M R 955

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

AHMAD HUSSAIN and others----Petitioners

versus

DIRECTOR OF EDUCATION, ISLAMABAD and others----Respondents

Civil Appeals Nos.834 to 842 and 861 of 1996, decided on 24th January, 2001.

(On appeal from the judgment dated 15-3-1995 of the Federal Service Tribunal, Islamabad in Appeals Nos. 102-R to 112-R of 1995).

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

----Art. 212(3)---Terms and conditions of service ---Upgradation of post--­Civil servants were serving as Secondary School Teachers (Trained Graduates i.e. B.A./B.Sc., B.Ed.) as such the post was upgraded but the same was not granted to the civil servants---Leave to appeal was granted by Supreme Court to consider; whether the civil servants could be discriminated from untrained graduate teachers/village workshop instructors who were not equal to them but were lower in category or at par with them---No reason was advanced by the Authorities to justify the refusal to grant upgradation to the civil servants and depriving them of such benefit.

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

----S. 4---Terms and conditions of service ---Upgradation of post---Post of Secondary School Teachers (Trained Graduates i.e. B.A./B.Sc., B.Ed.) was upgraded from Basic Pay Scale 15 to 16---Despite the fact that the upgradation was granted to the others, the same was denied to the civil servants---Appeals of said civil servants before the Service Tribunal were also dismissed---Validity---Where all the civil servants had been placed in Basic Pay Scale 16 with effect from upgradation of the post, the aggrieved civil servants could not be treated discriminately---Judgment of Service Tribunal was set aside and the aggrieved civil servants were upgraded from the date of general upgradation---Appeals were allowed.

Fazal Elahi Siddiqui, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Appellants.

Mansoor Ahmad, Deputy Attorney-General for Respondents.

Date of hearing: 24th January, 2001.

2001 S C M R 958

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan, Munir A. Sheikh and Wajihuddin Ahmed, JJ

AACHER and others----Appellants

versus

DUR MUHAMMAD USTO and others----Respondents

Civil Appeals Nos.905 and 906 of 1995, decided on 22nd May, 1998.

(On appeal from the judgment dated 26-10-1994 of the High Court of Sindh, Karachi passed in Constitution Petition No. D-1116 of 1991).

(a) Sindh Waqf Properties Ordinance (IX of 1979)----

----Ss.8 & 9---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider as, to whether the Constitutional petition was competently filed; and whether in presence of the revisional order passed by the Chief Land Commissioner, the High Court was justified to allow the Constitutional petition.

(b) Interpretation of statutes-

Self-executory provision of a statute---Scope---Effect---Such provision of a statute does not await decisions of any authority or Court for taking effect---Only the interpretation, the exclusion or the limitations, can be decided upon by the Court and not the operation of law as such.

Chief Land Commissioner v. Chief Administrator of Auqaf, Punjab PLD 1998 SC 132; Chief Land Commissioner v. Atta Muhammad Bajwa 1991 SCMR 736 and Chairman, FLC v. Akhtar Abbas PLD 1989 SC 550 ref.

(c) Sindh Waqf Properties Ordinance (IX of 1979)----

----Ss. 8 & 9---West Pakistan Waqf Properties Ordinance (XXI of 1959), Ss.6, 7 & 8---Waqf properties---Restoration of possession---Failure to hand over possession of the disputed property to the beneficiaries to the usufruct of the Waqf property ---Waqf was originally created in favour of the respondents by their predecessor---Authorities took over the Waqf land under the provisions of Martial Law Regulation No.64 of 1959---Dispute between the parties was finally decided in favour of the respondents by Supreme Court---Vacant possession was not handed over to the respondents and the land was occupied either by Haris or by trespassers---Constitutional petition was tiled by the respondents for restoration of the possession---High Court allowed the petition and directed the Authorities to hand over the possession to the respondents---Validity---Relief remained confined to the lands and other properties, which the beneficiaries/original owners were found finally to be entitled to retain---Where the appellants or any one of them still insisted that any person was inducted on such lands or portions thereof, while the same stood taken over, they or any of them so affected would be free to require the Administrator pursuant to the High Court order for extension of relief in terms of Ss.8 & 9 of Sindh Waqf Properties Ordinance, 1979---Supreme Court directed the Land Reforms Authorities to appropriately deal with the respective rights and entitlement agitated before them, as such the same included the rights of the purported Haris who were also the appellants---Order of the High Court was modified by the Supreme Court and appeal was allowed accordingly.

The Chief Administrator, Auqaf v. Abdul Nabi through his Legal Heirs and others PLD 1989 SC 299; Qazalbash Waqf v. The Chief Land Commissioner, Punjab PLD 1990 SC 99; Sardar Ali v Muhammad Ali PLD 1988 SC 287; Government of N.-W.F.P, v. Malik Said Kamal Shah PLD 1986 SC 360; Chief Land Commissioner v. Chief Administrator of Auqaf, Punjab PLD 1998 SC 132; Chief Land Commissioner v. Atta Muhammad Bajwa 1991 SCMR 736; Chairman, FLC v. Akhtar Abbas PLD 1989 SC 550 and Chief Administrator of Auqaf v Abdul Nabi PLD 1989 SC 299 ref.

Fakhar-ud-Din G. Ebrahim, Senior Advocate Supreme Court for Appellant (in C.A. No.905 of 1995).

Muhammad Ali Saeed, Advocate Supreme Court with M.S. Ghaury, Advocate-on-Record for Respondents Nos. l to 4 (in C. A. No. 905 of 1995).

S.M. Fani, Advocate Supreme Court for Respondent (in C.A. No.906 of 1995).

Respondents Nos. 5 and 7 to 9: Ex parse.

S.M. Fani, Senior Advocate Supreme Court for Appellant (in C.A. No.906 of 1995).

Muhammad Ali Saeed, Senior Advocate Supreme Court with M.S. Ghaury, Advocate-on-Record for Respondents Nos. l to 4 (in C.A. No.906 of 1995).

Fakhar-ud-Din G. Ebrahim, Senior Advocate Supreme Court for Respondents Nos.5 to 10 (in C.A. No.906 of 1995).

Respondents Nos. 11 to 14: Ex parte (in C.A. No.906 of 1995).

Dates of hearing: 12th, 13th and 14th May, 1998.

2001 S C M R 967

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

Messrs MEHRAN GHEE MILLS. (PVT.) LIMITED and others---Petitioners

versus

Messrs CHILTAN GHEE MILL (PVT.) LIMITED and others---Respondents

Civil Petitions Nos.364-Q of 1999 and 104-Q of 2000, decided on 23rd February, 2001.

(On appeal from the judgment/order dated 15-10-1999 and 17-11-2000 of High Court of Balochistan passed in C.M.A. No.1 of 1999 and R.F.A. No.66 of 1999 respectively).

(a) Trade Marks Act (V of 1940)---

----S. 22---Infringement of trade mark---Determination---Procedure--­Infringement is. to be decided by comparing and placing the two marks together and then to determine about their similarity or distinctiveness--­Where the two marks are absolutely identical no further probe is needed and infringement is established---Essential features of the marks have to be looked into for effectively deciding the issue of infringement---To constitute infringement it is not necessary that whole of the mark be adopted--­Infringement is complete if one or more dominating features of a mark are copied out---Where there is a striking resemblance, ex facie, the same leads towards the conclusion that the mark has been infringed---Not necessary that the mark ex facie has to deceive or confuse but its total impact upon a common purchaser is important.

Ferozuddin v. Muhammad Shafi and another PLD 1975 Kar. 486 ref.

(b) Trade Marks Act (V of 1940)---

----S. 23---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--­Constitution of Pakistan (1973), Art. 185(3)---Infringement of trade mark--­Interim injunction, grant of---Applications for registration of trade mark of both the parties were pending before the Competent Authority---Disputed trade mark was being used since 1974, by the respondent, while the petitioner had started using the trade mark since 1996 and thus, suit was maintainable for the alleged infringement---Where strong, prima facie case was established, balance of convenience was in favour of the respondent who would suffer irreparable loss---High Court had rightly issued interim injunction in favour of the respondent---Supreme Court declined to interfere with the order passed by the High Court---Leave to appeal was refused.

P.L. Anwar Basha v. M, Natarajan AIR 1980 Mad. 56 ref.

(c) Trade Marks Act (V of 1940)---

----S. 20(2)---Infringement of trade mark---Passing off action ---Scope---­Principle underlying the passing off action is that is unlawful for a trader to pass off his goods, as the' goods of another---Such action may be independent as the same may be coupled with infringement---Passing off action is maintainable irrespective of the fact that the trade mark is registered or unregistered.

(d) Trade Marks Act (V of 1940)---

----Ss. 2(f) & 20(2)---Infringement of trade mark---Passing off action---Facts to be proved---Plaintiff, for a claim relating to passing off action has to prove that his mark within the scope of definition as contained in S.2(f) of Trade Marks Act, 1940, was not only distinctive but had been continuously in use and the defendant realising the fact that the trade mark of the plaintiff was a valuable asset, in order to deceive the customers, had copied the same.

(e) Trade Marks Act (V of 1940)---

----S. 2(t)---Word 'mark' includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof.

Basharatullah, Senior 'Advocate Supreme Court for Petitioner (in both Civil Petitions).

Respondent No. l in person.

Date of hearing: 14th December, 2000.

2001 S C M R 974

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, CJ, Ch. Muhammad Arif and Deedar Hussain Shah, JJ

SECRETARY TO GOVERNMENT OF N.-W.F.P., PESHAWAR and 15 others---Petitioners

versus

Haji FATEH KHAN and 15 others---Respondents

.Civil Appeals Nos. 1157 to 1167 of 1997 and Civil Petitions for Leave to Appeal Nos.299-P and 311-P to 314-P of 1997, decided on 14th March, 2001.

(On appeal from the judgment dated 29-10-1996 passed by Peshawar High Court, Peshawar in R.F.As. Nos.58, 96, 58, 72, 74 of 1994 and Cross Objections Nos.4 of 1995, 75, 77, 78 of.1994 and Cross Objections Nos.2 of 1995, 79, 81, 70, 82, 73 of 1994 and Cross Objection Nos.7 of 1995, 76, 83 and 84 of 1994 and Cross Objection No.5 of 1995).

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

----Ss. 4(1), 3(e), 6 & 23(1)---Acquisition of land for WAPDA---Market value of acquired .land---Determination---Principles---Date of determination of market value---Relevant date for assessment was that of notification under S.4 of the Land Acquisition Act, 1894 and .not that of declaration under S.6 of the Act---Slump in the prices subsequent to the one year average at the date of notification under S.4 would be relevant factor in determining the potentiality but not for the purpose of laying the foundation in determining the market value of the land ---WAPDA being a company under S.3(e) for the purpose of Land Acquisition Act, 1894, enhancement of compulsory acquisition charges from 15% to 25% was justified.

Government of Sindh v. Syed Shakir Ali Jafri 1996 SCMR 1361; Abdul Qayyum v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1996 SCMR 1820; Sadiq Niaz Rizvi v. The Collector, District Lasbella PLD 1993 SC 80; Pakistan Burmah Shell Ltd. v. Province of N.-W.F.P. 1993 SCMR 1700; Market Committee, Kanganpur through Administrator v. Rayyat Ali 1991 SCMR 572; Malik Aman v. Land Acquisition Collector PLD 1988 SC 32 and Muhammad Mushtaq Ahmad Khan v. Assistant Commissioner, Sialkot PLD 1983 Lah. 178 ref.

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

----S. 23---Acquisition of land----Determination of compensation---Matters to be considered in assessment of future prospects of land acquired---Principles.

Following matters were to be considered to assess future prospects of the land acquired under Land Acquisition Act, 1894 in terms of section 23 of the said Act:--

(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.

Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik 2000 SCMR 870; 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; Guni 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; Murad Khan and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 and Deputy Commissioner/Land Acquisition Collector and others v. Sardar Muhammad Shafqat and others PLD 2001 SC 405 ref.

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

----S. 23---Acquisition of land---Payment of compensation---Determination of market value---Factors---Consideration of the potentialities of the lands in question and award of compensation to the landowners after bringing to bear the law declared by Supreme Court in Government of Sindh v. Syed Shakir Ali Jafri 1996 SCMR 1361; Abdul Qayyum v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1996 SCMR 1820 and Sadiq Niaz Rizvi v. The Collector, District Lasbella PLD 1993 SC 80 by the High Court, left nothing to fall back upon for the purposes of interference of Supreme Court with such a decision.

Deputy Commissioner/Land Acquisition Collector and others v. Sardar Muhammad Shafqat and others PLD 2001 SC 405 ref.

Saadat Hussain, Advocate Supreme Court with Nur Ahmed Khan, Advocate-on-Record for Appellants/Petitioners.

M. Umar Khan, Advocate Supreme Court and M.Ismail Fahmi, Advocate-on-Record (absent) for Respondents (Civil Appeal No. 1157 of 1997).

Abdul Samad Khan, Advocate-on-Record for Respondents (in all other Cases).

Date of hearing: 14th March, 2001.

2001 S C M R 981

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhagwan Das, JJ

HABIB BANK LIMITED. ---Appellant

versus

ANIS AHMAD and 7 others---Respondents

Civil Appeal No. 1871 of 1996, decided on 5th December, 2000.

(On appeal from the judgment dated 10-1-1996 of the High Court of Sindh, Karachi passed in F.R.A. No.753 of 1989).

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

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Commercial premises---Leave to appeal was granted by Supreme Court to consider; whether ejectment application was competently filed; whether the issue of personal requirement for bona fide use, was not established; whether eviction of tenant from commercial tenement could be ordered on the ground of landlord requiring the same for residential purpose; whether landlords in their rent agreement gave up their right to seek eviction of tenant through Rent Controller, on any ground other than the ground of default in payment of rent and whether in deciding ejectment application, Rent Controller exercised his discretion legally and properly leaving no scope for interference by High Court.

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

----Art. 185---Appeal to Supreme Court---New plea---Plea not Taken before High Court cannot be allowed to be raised before Supreme Court.

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

----S. 15---Bona fide personal need of landlord---Eviction of tenant from commercial tenement, could be ordered on the ground of landlord requiring the same for residential purpose---Change in character of residential building into non-residential building would not imply that the conversion would permanently change the character of the building for the purpose of eviction on the ground of personal requirement.

Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242 ref.

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

----S. 15---Bona fide personal need of landlord---Demand of higher rent--­Effect---Factum of bona fide requirement having independently been proved, demand of higher rent would not negate the bona fide requirement of landlord.

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

----S. 15---Bona fide personal need of landlord---Requiring commercial premises for residential purposes---Rent Controller dismissed the ejectment application while High Court in exercise of its appellate jurisdiction allowed the appeal of the landlord--Validity---High Court had noticed all the points raised by the tenant and findings of fact on the question of bona fide requirement of the landlord did not suffer from any infirmity, legal or otherwise---Supreme Court declined to interfere with the judgment passed by High Court.

Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. 1985 SCMR 1996 ref.

Mrs. S. Hamid Husain, Advocate Supreme Court for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for Respondents.

Date of hearing: 5th December, 2000.

2001 S C M R 988

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Javed Iqbal, JJ

Miss NAJIBA and another---Appellants

versus

AHMED SULTAN alias SATTAR and 2 others---Respondents

Criminal Appeals Nos.235 and 236 of 1995, decided on 2nd March, 2001.

(On appeal from the judgment of the High Court of Balochistan, Quetta dated 1-12-1994 passed in Criminal Appeals Nos.100, 101 and Criminal Revisions Nos.72 and 73 of 1994).

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

----Ss. 302/34---Constitution of Pakistan (1973), Art. 185(3)---Trial Court while convicting the accused under Ss.302/34, P.P.C. for an offence punishable with death had sentenced them to imprisonment for life without stating reasons as to why sentence of death was not passed---High Court had also failed to give reasons for not passing the sentence of death---Leave to appeal was, therefore, granted to consider whether in the circumstances of the case, death sentence was the appropriate sentence or lesser sentence of imprisonment for life would serve the cause of justice.

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

----S. 367(5)---Reasons to be recorded for not passing sentence of death--­Recording of reasons for not awarding normal penalty of death in offences punishable with death is mandatory under S.367(5), Cr.P.C. and non ­recording thereof would 'amount to non-compliance of the legal provisions.

(c) Sentence---

---Sentence in offences punishable with death---When prosecution. proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minded people---Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice, whereas the Courts are duty-bound to do complete justice with both the parties---Whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves---Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties---In offences punishable with death, the normal penalty prescribed by . law is death sentence, however, .in cases where mitigating or extenuating circumstances are available for warranting lesser punishment, Courts while awarding lesser punishment, have to record reasons justifying the same.

Mosaddi Rai v. Emperor AIR 1933 Pat. 100; Abdus Sattar v. Muhammad Anwar PLD 1974 SC 266; Nabu v. The State PLD 1975 SC. 478; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Bakhshish Elahi v. The State 1977 SCMR 389; Jetharam v. Weram 1986 SCMR 1056; Maqbool Ahmad v. The State 1987 SCMR 1059; Muhammad Sharif v. The State 1991 SCMR 1622; Noor Muhammad v. The State 1999 SCMR 2722 and Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12 ref.

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

----Ss. 302/34---Appraisal of evidence---Sentence, enhancement of --- Both the Courts below had failed to record reasons for awarding lesser punishment to the accused who had committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses where they were killed---Occurrence was not known to any body till the time it was disclosed by the accused in the confessional statements---Dead bodies had been recovered at .the instance of accused from the places specified in their confessions in presence of the Magistrates---Accused had recorded their detailed confessions disclosing various facts which were only known to them and the details of which had established their voluntariness and truthfulness---Confessions of accused were corroborated by the recovery of the dead bodies, medical evidence and other circumstantial evidence--­Accused had committed the preplanned calculated murders in a highly brutal and callous manner and no mitigating or extenuating circumstances existed warranting lesser penalty to them---Sentence of imprisonment for life awarded to each accused was consequently altered to death on three counts--­Appeals were accepted accordingly.

Mosaddi Rai v. Emperor AIR 1933 Pat. 100; Abdus Sattar v. Muhammad Anwar PLD 1974 SC 266; Nabu v. The State PLD 1975 SC 478; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 45: Bakhshish Elahi v. The State 1977 SCMh 389; Jetharam v. Weram 1986 SCMR 1056; Maqbool Ahmad v. The State 1987 SCMR 1059; Muhammad Sharif v. The State 1991 SCMR 1622; Noor Muhammad v. The State 1999 SCMR 2722.. Muhammad Afzal v. Ghulam Asghar and others PLD 20()() SC 12; Habibullah v'. The State 1971 SCMR 341; Abdul Majid v. The State 1980 SCMR 935; Sheri Zaman v. The State 1989 PCr.LJ 1526; Wazir Khan v. The State 1989 SCMR 446; Muhammad Gul v. The State 1991 SCMR 942; Arabistan v. The State 1992 SCMR 754; Javaid Masih v. The State 1993 SCMR 1574; Muhammad Ismail v. The State 1995 SCMR 1615; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Fazal Mahmood v. The State 1999 SCMR 2040; Nasar Khan v. The State 2000 SCMR 130 and Nasreen Akhtar v. The State 2000 SCMR 1634 ref.

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

----Ss. 302/34---Appreciation of evidence---Confession---Confessional statement even if retracted subsequently but found to be voluntary and true and supported by some corroborative material, can solely be made the basis for conviction.

Habibullah v. The State 1971 SCMR 341; Abdul Majid v. The State 1980 SCMR 935; Sheri Zaman v. The State 1989 PCr.LJ 1526; Wazir Khan v. The State 1989 SCMR 446; Muhammad Gul v. The State 1991 SCMR 942; Arabistan v. The State 1992 SCMR 754; Javaid Masih v. The State 1993 SCMR 1574; Muhammad Ismail v. The State 1995 SCMR 1615; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Fazal Mahmood v. The State 1999 SCMR 2040; Nasar Khan v. The State 2000 SCMR 130 and Nasreen Akhtar v. The State 2000 SCMR 1634 ref.

M. Aslam Chishti, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Appellants.

S.A.M. Quadri, Advocate-on-Record for Respondent No.2.

Raja Abdul Ghafoor, Advocate-on-Record for the State.

Date of hearing: 25th January, 2001.

2001 S C M R1001

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

GHULAM HASSAN ---Appellant

versus

JAMSHAID ALI and others---Respondents

Civil Appeal No.295 of 1995, decided on 8th December, 2000.

(On appeal from the judgment dated 17-1-1995 of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No. 17 of 1993).

(a) Words and phrases---

----'Require'---Meaning.

Black's Law Dictionary; Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 and Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15 ref.

(b) Administration of justice---

---- Courts are to administer justice in accordance with the provisions of law.

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

----S. 24---Pre-emption money (Zar-e-Soem), deposit of---Omission of Trial Court to pass order for such deposit---Effect---Trial Court dismissed the suit of the pre-emptor on the ground that pre-emption money was not deposited 'within 30 days of filing of the suit---Appeal before Lower Appellate Court was also dismissed on the same ground---High Court allowed the second appeal and remanded the case to Trial Court for the reason that Trial Court

had failed to pass any order qua deposit of pre-emption money as required under S.24 of Punjab Pre-eruption Act, 1991---Validity---Duty cast upon, Trial Court could not be avoided by saying that either of tile party had not, brought attention of the Court to mandatory provision of S.24 of Punjab Pre­emption Act, 1991---Applicatio_ n of provisions of law is the duty of the Court---Trial Court itself after filing of the suit had to pass order under the provisions of S.24 of Punjab Pre-emption Act, 1991, for deposit of one-third of sale price of suit property in cash. within such period as might be fixed by it---Such period would not be more than 30 days of filing of the suit---Where the provision of the Act was mandatory in .nature, non-compliance of the order of deposit by the pre-emptor was visited with the dismissal of the suit-­-Trial Court failed to comply with the mandatory provisions contained in S.24 of Punjab Pre-emption Act, 1990, and its order calling upon the pre­emptor to deposit one-third of the sale price within two days of the order was harsh as there was hardly a day for its compliance, keeping in view the amount to be deposited---Supreme Court deprecated such sort of approach by Trial Court in inflicting penalty of dismissal of suits upon innocent litigants with observation that function of the Court was not to simply dispose of the matter but was required to do justice in accordance with the provisions of law and that non-action on the part of Trial Court in the case had caused not only financial loss to the parties but had - also. prolonged their agony spreading over a' period of one decade in such an uncalled for litigation consuming much of the time of the superior Courts.

Board of Intermediate and Secondary Education; Lahore through its Chairman and another v. Mst. Salina Afroze and 2 others PLD 1992 SC 263; Sherin and 4 others .v. Fazal Muhammad- and 4 others 1995 SCMR 584; Muhammad Afsar v. Mst: Munawar Jan PLD 1961 (W.P.) Lah. 199; Central Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and others PLD 1965 (W.P.) Lah. 628; Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another PLD 1983 Lah. 1; Hafiz Muhammad Ahsan v. The State 1987 PCr.LJ 2434; Ghulam Haider and others v. Mst. Raj Bharri and others PLD 1988 SIC 20; Muhamniad Ramzan and another v. Haji Karim Bakhsh and 5 others 1988 CLC 448; Iqbal Ahmad v. Industrial Development Bank of Pakistan and 3 others 1989 CLC 1365; Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012; Naseer Ahmed v. District Judge, Multan and 4 others PLD 1992 Lah. 92 and Iftikhar Baig v. Muhammad Azam and others 1996 SCMR 762 ref.

(d) Duty of Court---

---- Application of provisions of law is the duty of the Court.

(e) Interpretation of statutes---

---- Mandatory and directory provisions in a statute---Penalty clause in a statute---Effect---Where the Legislature has provided penalty/consequences for the non-compliance of a provision such provision is "mandatory" in nature---Where, however., such consequences are not provided, the provision is termed as "directory".

Maulana Nur-ul-Haq v. Ibrahim Khalili 2000 SCMR 1305 and Mafizullah v. Manai Ullah and others PLD 1963 Dacca 318 ref.

(f) Administration of justice---

--Maxim 'Actus curiae neminem gravabit' (an act of Court shall prejudice no man)---Applicability---Maxim comes into play, with a view to obviate hardships which may otherwise be the result of the errors of the Court itself---Where non-compliance with the mandatory provisions of law occurs by' complying with the direction of the Court which is not in conformity with the law, the party complying therewith is not to be penalised.

Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; The State v. Asif Adil and others 1997 SCMR 209; Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859; Fateh Khan v. Boze Mir PLD 1991 SC 782 and Abdul Rashid v. Abdul Salam arid others 1991 SCMR 2012 ref.

Hakim Qureshi, Advocate Supreme Court for Appellant.

Muhammad Amin K. Jan, Advocate Supreme Court kith Ejaz Muhammad Khan, Advocate-on-Record, for Respondent No. 1.

Respondents Nos. 2 and 3 : Ex parte.

Date of hearing: 8th December, 2000.

2001 S C M R 1012

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Deedar Hussain Shah and Javed Iqbal, JJ

ZILA COUNCIL, JHANG, DISTRICT JHANG through Administrator and others---Appellants

versus

Messrs DAEWOO CORPORATION, KOT RANJEET, SHEIKHUPURA through Director Contract and others--Respondents

Civil Appeal No.254 of 1995 alongwith Criminal Original Petition No.26 of 1996, decided on 30th March, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-1-1995 passed in Writ Petition No.6754 of 1994).

(a) Punjab Local Government Ordinance (VI of 1979)---

----S. 137---Punjab Zila Councils (Export Tax) Rules, 1990, Schedule of Export Tax---Constitution of Pakistan (1973), Art.185(3)---Export tax on goods produced within area of a District Council but taken outside the District- --Question was whether the processing of the stone within the limits of Zila Council fell within the ambit of the expression "produce" so as to empower the Zila Council to levy export tax thereon---Dispute between the parties having raised a question relating to the construction of the expression "produce" which was one of the first impression and required an authoritative determination from the Supreme Court, leave to appeal was accordingly granted.

(b) Punjab Local Government Ordinance (VI of 1979)---

----S. 137---Punjab Zila Councils (Export Tax) Rules, 1990, Schedule of Export Tax---Constitution of Pakistan (1973), Arts. 165 & 165-A---Levy of export tax on goods produced within area of Zila Council but taken outside the District---Validity---Change of big rock/stones into crushed stones by using huge crusher within the limits of Zila Council fell within ambit of expression "produce" so as to empower the Zila Council to levy export-tax thereon---Principles---Expression "produce", construction and connotation of---Legislative changes with retrospective effect with effect from 1-7-1990 were made during pendency of the proceedings and the impact of which was that the party was bound to pay Export/Goods Exit Tax on crushed stones produced in the. territorial limits of the District Council which by virtue of the amendments included both urban and rural areas of the District and it was immaterial from where the stones were being excavated---Since in ,the year 1990 no such tax was levied and export tax was levied in 1992, whereby goods produced within the limits of District Council were subject to payment of said tax at the rate of Rs.2 per quintal and question of its realization with effect from 1-7-1990 did not arise because retrospective effect could be given to the definition of "Zila" but no liability could be created retrospectively---District Council, therefore, was competent to levy Export/Goods Exit Tax with effect from 25-7-1992 and accordingly Schedule No.768/HVC dated 25-7-1992 was lawful and could have been issued by the District Council ---[N.T. Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 1989 Quetta 74 overruled].

Transformation in original produce which results into something different from the original existence capable of being sold as a material commodity having a different character which is not always necessary in component and which should be adjudged from the angle of its utilization, intended new use which may be altogether different from previous one amounts to manufacturing or production. "Manufacturing" and "production" are, synonymous and interchangeable terms. The basic question to be answered in the present case was as to whether the change of big rock/stones into crushed stones by using huge crusher plants/machines amounted to process of manufacturing/production or otherwise.

The process of crushing can be termed as 're-manufacturing' and 're-making' altogether a new product i.e. crushed stone which comes into being through process of crushing and it may be kept in view that the word 'produce' also means to make and there is hardly any difference between 'production' and that of 'manufacturing'. It is an admitted fact in the present case that the price of 'crushed stones' is higher as compared to the stones excavated from quarry. The fact that after the process of crushing, its price becomes higher and use becomes different which is indicative of the fact that the purchasing public regards the 'crushed stones' as a distinct item having a different and specific use in its new sphere.

There was a line of distinction between huge rocks/stones and crushed stones which is apparent if considered from the angle of the shape size and use. The question arise as to whether excavation of stones from quarry and their subsequent change in crushed stones is one and the same thing or otherwise It is not one and the same thing because had it been so there would have been no justification to transport the excavated stones to the site where huge crusher plants are installed and thereby employing mechanical process and its conversion to 'crushed stones' to be utilized exclusively for a specific purpose Le. construction of road. Had there been a direct transportation of stones in its original shape when excavated from quarry to the road without undergoing any mechanical process and change into a new commodity the question of imposition of tax by District Council would have not arisen as the quarry admittedly falls within the territorial domain of town committee. It is an admitted feature of the case that huge crusher plants as installed within the territorial limits of District Council where after undergoing the mechanical process the stones are converted/changed into 'crushed stones' which by all means equated with that of production of a new commodity and thus, the District Council is competent for. the imposition of the tax in question. There are following five different stages and after crossing whereof the process of manufacturing/production of crushed stones is completed which are as follows:--

(1) Excavation of stones from quarry.

(ii) Its transportation to the territorial limits of District Council.

(iii) Unloading of the stones within the territorial limits of District Council where crusher plants are installed.

(iv) Conversion of stones to that of crushed stones by using huge crushers/machines coupled with manual power.

(v) Use of crushed stones for constructing the motorway.

There are five stages as -mentioned hereinabove and, of course, tax cannot be levied at the first three stages because the mine from which it is excavated is not situated within the territorial limits of District Council. It is the fifth stage which has its own significance and importance which deserves a very special attention because the stones are converted into 'crushed stones' through crusher plants which are, of course, installed within the territorial domain of District Council. Due to said conversion the new element/commodity i.e. 'crushed stones' having the characteristic of stones but with a drastic change in its use for all practical purposes after undergoing a mechanical process which can be equated with 'production' are produced/manufactured because without undergoing the said process the 'stones' initially excavated from the quarry could not have been used in their original shape for construction of motorway. Had the stones remained in their original shape as excavated and brought to the site without having a substantial change in their shape and use after undergoing a mechanical process, the question of imposition of any tax would have not arisen.

No exemption under Articles 165 and 165-A of the Constitution could be granted for the simple reason that Corporation is a foreign company operating in a private sector and admittedly was neither the Government nor National Highway Authority or its shareholders and thus, by no stretch of imagination it can be considered as apart or limb of the Federal Government for the following reasons:--

(a) The Government has not contributed any capital.

(b) The Directors of the Corporation are not appointed by the Government.

(c) The Government has no power to remove the Directors.

(d) The Government is not a shareholder.

(e) The Government has no power to get its accounts audited.

(f) The Government cannot give any direction to the Corporation contrary to the agreement.

(g) The Corporation has a distinct juristic personality.

In view of what has been stated above the provisions as contained in Articles 165 and 165-A of the Constitution are not applicable.

A Zila Council cannot be deprived of or restrained from levying or collecting such taxes from companies/corporations on the ground that it was being run or managed by Government or certain percentage of shares pertained to Government. The local Government can only be survived if free hand is given to impose such taxes to generate finance subject to just legal exceptions as it is the only source to develop the rural areas and it is the only way to keep the local Government alive otherwise it may collapse because the District Council is responsible for the construction and maintenance of roads, management of common places, lighting, health and sanitation, water supply, registration of births and deaths, holding of cattle-fares and exhibitions, animals husbandry, prevention of diseases, promotion of primary education, scholarship for needy students and various emergent functions pertaining to social welfare. The finances of District Council are derived from taxes, fees, cess, remunerative projects and grants by the Federal and Provincial Governments to achieve the abovementioned objects.

It was contended that the Corporation was undertaking the excavation and crushing of the stones at its Quarry on behalf of the National Highway Authority which is a statutory corporation. and accordingly no talc could have been levied for the reason that the Authority has obtained a Quarry on lease from the Director Mineral Development, Government of the Punjab and an agreement was also executed in this regard which is indicative of the fact that the Authority was, bound to pay the royalty on all mineral produced and carried away in accordance with proper and accurate record and more so, Authority was not competent to further lease out the said Quarry in view of the provisions as contained in the mining lease which prohibits any such sub-leasing or transfer of rights and interests in any part of, the leased area. The said contention being devoid of merits hardly needs any further consideration.

The Export Tax Model Schedule cannot be considered as binding .for the simple reason that Government of the Punjab has - itself clarified vide Letter No.S.O.V(LG.)5-26/89, dated 21-4-1991 by making it abundantly clear that the Export Tax Model Schedule has been prepared to serve as a guideline which position was, further clarified vide Letter No.SOVI(LG)1-18/94, dated 28-7-1994.

A bare perusal of the said letter would reveal that the Export Tax Model Schedule was not binding in nature and more so, it could not be binding in view of the provisions as contained in rule 10 of the Punjab Local Councils (Taxation Rules). 1980. In such view of the matter the Corporation is legally bound to pay Goods Exit Tax/Export Tax on export of stones/Bajri etc., at the notified rate of Rs.2 per quintal.

During the pendency of appeal certain legislative changes were made and the definition of 'Zila' was also amended and the urban area of entire revenue district was included in it for the purpose of tax on the export of goods and animals. The said amendment was kept intact in the Punjab Local Government Act, 1996, which came into force on 10-7-1996 and also in the Punjab Local Council (Revival of Law) Act, 1997, which came into force on 14-6-1997. It is to be noted that retrospective effect was given to the said amendment which has come into force with effect from 11-7-1990. It is also to be noted that on 25-1-1996 the Government of the Punjab has promulgated the Punjab Local Government (Fourth Amendment) Ordinance, 1995: As per provisions contained in subsection (2) of section 1 of the Ordinance it was provided that it shall come into force at once and shall be deemed to have taken effect on 1-7-1990. By means of section 2 of the said Ordinance the definition of 'Zila' as contained in clause (ix) of subsection (1) of section 3 of the Punjab Local Government Ordinance, 1979, was amended as follows:--

" 'Zila' means the Revenue District as notified under the Punjab Local Revenue Act, 1967 (XVII of 1967) excluding its urban areas but for purposes of tax on the export of goods and animals, the Zila includes its urban areas."

The impact of the said amendment which came into being with effect from 1-7-1990 would be that Corporation is bound to pay Export/Goods Exit Tax on crushed stones produced in the territorial limits of District Council which by virtue of said amendment includes both the urban and rural areas of District and, therefore, it was immaterial from where the stones were being excavated. Since in the year 1990 no such tax was levied and Export/Goods Exit Tax was levied vide Schedule No.768/HVC, dated 25-7-1992 where goods produced within the limits of District Council were subject to payment of said tax at the rate of Rs.2 per quintal according to Item No.22 of said Schedule thus, the question of its realization with effect from 1-7-1990 does not arise because retrospective effect could be given to the definition of 'Zila' but no liability can be created retrospectively.

District Council was competent to levy Export/Goods Exist Tax at the rate of Rs.2 per quintal with effect from 25-7-1992 and accordingly Schedule No.768/HVC, dated 25-7-1992 was lawful and could have been issued by the District Council. Corporation itself had approached the Chairman of the District Council for exemption of the export tax meaning thereby that its legality was not challenged and a mechanism was also suggested for the collection of such tax. The agreement between Zila Council and the Corporation is also indicative of the fact that the Corporation has agreed, to pay to, the District Council a flat rate of Rs.50 for each truck carrying crushed stones out of the District of Jhang irrespective of the loading capacity and it is not understandable that how subsequently the legality of the imposition of the tax has been- challenged.

N.T. Corporation (Pvt.) Ltd. v. Federation of-Pakistan PLD 1989 Quetta 74 overruled.

Federation of Pakistan v. Noori Trading Corporation (Pvt.) Ltd. 1992 SCMR 710; Al-Ahram Builders v. Income Tax Appellate Tribunal 1993 SCMR 29; Wealth Tax Officer v. Shaukat Afzal 1993 SCMR 1810; Fariduddin v. Mehboob Ali 1994 SCMR 1484; Zila Council v. I.C.I. Pakistan Ltd. 1993 SCMR 454; Hilal Tanneries Ltd. v. Zila Council 1994 MLD 2366; Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan 1993 SCMR 1905; M:Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1404; Mehran Associates Ltd. v. Commissioner of Income-tax 1993 SCMR 274; Province of East Pakistan v. Sharafatullah PLD 1970 SC 514\ AI-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Words and Phrases defined by John B. Saunders, Vol. 4, 2nd Edn:, p.87; Black's Law Dictionary; Chamber's Twentieth Century Dictionary; Jamnadas v. C.L. Nangia AIR 1965 Guj. 215; N.T. Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 1989 Quetta 74; State v. Madhogaria AIR 1959 Ker. 200; Commissioner of Sales Tax, U.P. v. Dr. Sukh Deo AIR 1969 SC 499; Deputy Commissioner of Sales Tax v. PIO Food Packers (1980) 46 STC 63(SC); Shamas Din & Bros. v. Income Tax and Sales Tax Officer PLD 1959 (W.P.) Lah. 955; G.R. Kulkarni v. State AIR 1957 Madh. Pra. 45; State of Bihar v. Chrestain Mica Industries AIR 1957 Pat. 184: Aluminium Corporation of India v. Coal Board AIR 1957 Cal. 326 and Pakistan v. Muhammad Aqil PLD 1960 SC (Pak.) 4 ref.

(c) Interpretation of statutes--

----Amendment in an enactment with retrospective effect cannot create liability retrospectively.

(d) Words and phrases--

----"Produce"---Connotation.

Words and Phrases defined by John B. Saunders, Vol. 4, 2nd Edn. p.87; Black's Law Dictionary; Chamber's Twentieth Century Dictionary; Jamnadas v. C.L. Nangia AIR 1965 Guj. 215; N.T. Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 1989 Quetta 74; State v. Madhogaria AIR 1959 Ker. 200; Commissioner of Sales Tax, U.P. v. Dr. Sukh Deo AIR 1969 SC 499; Deputy Commissioner of Sales Tax v. PIO Food Packers (1980) 46 STC 63(SG); Shamas Din & Bros. v. Income Tax and Sales Tax Officer PLD 1959 (W.P.) Lah. 955; G.R. Kulkami v. State AIR 1957 Madh. Pra. 45; State of Bihar v. Chrestain Mica Industries AIR 1957 Pat. 184 and Aluminium Corporation of India v. Coal Board AIR 1957 Cal. 326 ref.

(e) Words and phrases--

----"Manufacturing"---Connotation.

Words and Phrases defined by John B. Saunders, Vol. 4, 2nd Edn. p.87; Black's Law Dictionary; Chamber's Twentieth Century Dictionary; Jamnadas v. C.L. Nangia AIR 1965 Guj. 215; N.T. Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 1989 Quetta 74; State v. Madhogaria AIR 1959 Ker. 200; Commissioner of Sales Tax, U.P. v. Dr. Sukh Deo AIR 1969 SC 499; Deputy Commissioner of Sales Tax v. PIO Food Packers (1980) 46 STC 63(SC); Shamas Din & Bros. v. Income Tax and Sales Tax Officer PLD 1959 (W.P.) Lah. 955; G.R. Kulkarni v. State AIR 1957 Madh. Pra. 45: State of Bihar v. Chrestain Mica Industries AIR 1957 Pat. 184 and Aluminium Corporation of India v. Coal Board AIR 1957 Cal. 326 ref.

Shahid Hamid, Advocate Supreme Court and S.Inayat Hussain Advocate-on-Record (absent) for Appellants (in C.A. No.254 of 1995).

Aftab Ahmad, Advocate Supreme Court for Respondents (in C.A. No.254 of 1995.)

Date of hearing : 7th November, 2000.

2001 S C M R 1032

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

COLLECTOR LAND ACQUISITION and others---Appellants

versus

MUHAMMAD SAID through Legal Heirs and others--Respondents

Civil Appeals Nos.913 and 914 of 1999, decided on 29th January, 2001

(On appeal from the judgment dated 8-2-1999 of the Peshawar High Court, Peshawar passed in R.F.A. No. 34 of 1995).

Land Acquisition Act (I of 1894)--

----Ss. 4, 23(2) & 54---Appeal---Compulsory acquisition, charges, awarding P of---Land was acquired by notification under S. 4 of Land Acquisition Act, 1894---Compensation awarded to the landowners was disputed---High Court, while deciding the compensation, awarded the compulsory acquisition charges at the rate of 25 % per annum---Contention bg the appellant was that the Notification of acquisition was issued under S. 4 of Land Acquisition Act, 1894, and the provisions of S. 23(2) of the said Act were not applicable to the present case---Validity---Where the appellants were not incorporated as a company, when the Notification under S.4 of Land Acquisition Act, 1894, was issued, the landowners could not invoke the provisions of S. 23(2) of Land Acquisition Act, 1894---Incorporation of- the appellant as company under the provisions of Companies Ordinance, 1084, would not operate retrospectively---Landowners could not be awarded the compulsory acquisition charges at 25 % per annum and the High Court was not justified to award the compulsory acquisition charges to the respondents/ owners taking the appellants to be a 'Company' within contemplation of S.23(2) of the Act---Award of 25 % compulsory acquisition charges to the landowners was set aside by Supreme Court.

Ismail Fehmi, Advocate-on-Record for Appellant (in C.A. No.913 of 1999)

Nemo for Respondents (in C.A. No.913 of 1999).

Saadat Hussain Khan, Advocate Supreme Court, Nut Ahmad Khan Advocate-on-Record for Appellants (Civil Appeal No.914 of.1999).

M. Ismail Fehmi, Advocate-on-Record for Respondents (in C.A, No.914 of 1999).

Date of hearing: 29th January, 2001

2001 S C M R 1036

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Qazi Muhammad Farooq, JJ

LAL HUSSAIN ---Petitioner

versus

Mst. SADIQ and another---Respondents

Civil Petition for Leave to Appeal No. 1296 of 1999, decided on 9th March 2001.

(On appeal from the judgment dated 17-5-1999 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No.30-D of 1988).

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

----Art. 124---Person not heard of for seven years---Presumption of death of such person---Where a person had been unheard of since 1947, the provisions of Art. 124 of the Qanun-e-Shahadat, 1984, were fully attracted and there was presumption of law that the person was dead.

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

----Art. 124---Person not heard of for seven years---Affirmation to the effect that the person was alive---Onus to prove---Where a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the person who affirms the same.

Muhammad Sarwar and another v. Fazal Ahmad and another PLD 1987 SC 1 ref.

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

----Art. 185(3)---Qanun-e-Shahadat (10 of 1984), Art. 124---Islamic Law--­Inheritance---Person not heard of for seven years---Reckoning of the period of seven years as envisaged by Art. 124 of Qanun-e-Shahadat, 1984--­Presumption of such person being dead---.Owner of the suit property was real brother of the petitioner and predecessor-in-interest of the respondents and had not been heard of since 1947---Predecessor-in-interest of the respondents died in the year 1974 and the petitioner claimed to be the sole legal heir of the owner of the suit property---Suit tiled by the petitioner was decreed by Trial Court and the judgment was upheld by Lower Appellate Court---High Court in exercise of its revisional jurisdiction set aside the judgment of Lower Appellate Court---Validity---Where the petitioner claimed to be the sole legal heir of the suit property, petitioner was obliged to prove by positive evidence that the owner had died after his brother the predecessor-­in-interest of the respondents---Evidence adduced by the petitioner consisted of his solitary statement which was too bald and incoherent to be termed as positive evidence about the date of death of the owner---In the absence of positive evidence about the date of death of the owner, the period of seven years envisaged by Art. 124 of the Qapun-e-Shahadat, 1984, was to be reckoned from the undisputed year of disappearance of the owner i.e. J974--­Inheritance of the owner had opened in the year 1954, when the predecessor-­in-interest of the respondents was alive and the same had devolved on the petitioner and predecessor-in-interest of the respondents in equal share--­Judgment passed by High Court was, therefore, unexceptionable---Leave to appeal was, refused.

Syed Muhammad Ayub Bokhari, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents

Date of hearing: 9th March, 2001.

2001 S C M R 1040

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, Munir A. Sheikh and Mian Muhammad Ajmal, JJ

ANWAR SAIFULLAH KHAN---Petitioner

versus

THE STATE and 3 others---Respondents

Civil Petitions for Leave to Appeal Nos.3161-L and 3162-L of 2000, decided on 21st February, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 7-12-2000 passed in Writ Petitions Nos. 14915 and 14916 of 2000).

(a) National Accountability Bureau Ordinance (XVIII of 1999)---

----S. 9(b)---Jurisdiction to grant bail---Jurisdiction of Accountability Court and the High Court has been ousted by S. 9(b) of the National Accountability Bureau Ordinance, 1999, to grant bail to any accused of any offence under the said Ordinance---Ouster clause in the Ordinance is not applicable to Supreme Court which has the jurisdiction to grant bail in such offences.

Mrs. Shahida Faisal v. Federation of Pakistan and others Civil Petitions No. 1630-L of 2000 and Malik Ghulam Muhammad Murtaza Khan v. Federation of Pakistan and 2 others 1662-L of 2000 ref.

(b) National Accountability Bureau Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)---Criminal Procedure Code (V of 1898), S.497--­Constitution of Pakistan (1973), Art. 185(3)---Bail---Supreme Court's jurisdiction to grant bail to accused was not ousted by S.9(b) of the National Accountability Bureau Ordinance, 1999---Accused had already been granted bail in similar four References by the High Court---Accused in two References was alleged to have allocated L.P.G. to co-accused in violation of the prescribed Rules by misusing his authority---Such allegation could only be determined by the Trial Court with certainty after assessment of evidence---Delay in disposal of the References was not attributable to accused---Accused was not alleged to have gained anything out of the allocations of L.P.G. made to his co-accused which not only had been confirmed but they had been declared eligible for further such allocation from PARCO---Government, thus, had not suffered any loss at the hands of the accused whose continuous detention did not appear to be justifiable which involved the question of liberty of a citizen---Bail could not be withheld as punishment on .accusation of non-bailable offence against the accused--­Petitions for leave to appeal were consequently converted into appeals which were allowed and the accused was admitted to bail accordingly.

President of Pakistan v. Mrs. Benazir Bhutto 1994 MLD 1969; Mrs. Shahida Faisal. v. Federation of Pakistan and others Civil Petitions No. 1630-L of 2000 and Malik Ghulam Muhammad Murtaza khan v. Federation of Pakistan and 2 others 1662-L of 2000 ref.

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

----S. 497---Bail---Bail cannot be withheld as punishment on accusation of non-bailable offence against the accused.

Shahid Hamid, Advocate Supreme Court with Sardar Khan, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record (absent) for Petitioner.

Aziz A. Munshi, Attorney-General for Pakistan with Tanvir Bashir Ansari, Deputy Attorney-General for Respondents.

Raja Muhammad Bashir, Prosecutor-General Accountability for the N. A. B.

Tariq Mahmood Khokhar, Additional Advocate-General for Advocate-General, Punjab.

Dates of hearing: 19th January and 21st February; 2001.

2001 S C M R 1047

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan Rana Bhagwan Das and Javed Iqbal, JJ

ALI HASSAN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.397 of 2000, decided on 1st March, 2001.

(On appeal from the order dated 1-8-2000 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.75-B of 2000).

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

----S. 497--Constitution of Pakistan (1973), Art. 185(3)---Bail--High Court had disallowed the accused to agitate the point in the earlier bail application which was withdrawn without getting any decision on merit---Leave to appeal was granted to the accused by Supreme Court to consider the effect of withdrawing the bail application with the permission of the Court and subsequently filing the same application on the same grounds.

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

----Ss. 497/498---Filing of successive bail applications in the same case by the same person or his co-accused---Clarification of Zubair's case (PLD 1986 SC 173)---Zubair's case reported as PLD 1986 SC 173 had laid emphasis on vital issue that subsequent bail applications must be placed before the same Judge who had dealt with the first bail application and that the counsel was duty bound to mention in the bail application filed by him the fact of having filed the previous application with the result thereof---Said judgment had been delivered to avoid the conflicting decisions in bail applications--­Practice of withdrawing the bail petition from one Judge and then making a fresh application soon thereafter so that the same may be dealt with by another Judge was also disapproved---Principle initiated in Zubair's case was based upon salutary principle, inasmuch as, the practice of filing the successive bail applications in the same case by the same accused or his co­-accused and getting it fixed before a different Judge, is not only likely to result in conflicting judgments but also tends to encourage malpractice by accused persons and to bring the judicial system into disrepute because in the event of a conflicting order being given by another Judge in a subsequent application an impression, though false, may be created that the second order was based on extraneous considerations.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Muhammad Riaz v. The State Criminal Appeal No.458 of 2000; Farid v. Ghulam Hussain 1968 SCMR 924 and Khan Beg v. Sajawal PLD 1984 SC 341 ref.

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

----Ss. 497/498---Withdrawal of bail application --- Effect --- Withdrawal of an application simpliciter does not mean that the same was dealt with on merits or on the ground pressed---Situation, however, would be different if the earlier bail application was decided on merits and in such case while deciding the subsequent bail application, of course the ground which was not urged although the same was available would -not constitute a fresh ground justifying the filing of second bail application---Propriety requires that the bail application dismissed in terms of order impugned be heard by the same Bench who had earlier allowed the withdrawal of the first bail application.

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

----S. 497---Bail---Two bail applications filed earlier by accused in the High Court were not pressed and were withdrawn and the same were not disposed of on merits---Third bail application filed by accused, in. the circumstances, was not hit by the dictum laid down in Zubair's case reported as PLD 1986 SC 173---Impugned order passed by High Court rejecting the said bail application on such ground was consequently set aside and the case was remanded to High Court for decision on merits of the bail application in accordance with law.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Muhammad Riaz v. The State Criminal Appeal No.458 of 2000; Farid v. Ghulam Hussain 1968 SCMR 924 and Khan Beg v. Sajawal PLD 1984 SC 341 ref.

Khawaja Sultan Ahmad, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record (absent) for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 1st March, 2001.

2001 S C M R 1053

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Hamid Ali Mirza, JJ

SAMI UL HAQ---Petitioner

versus

Dr. MAQBOOL HUSSAIN BUTT and others---Respondents

Civil Petitions Nos.436, 437 and 438 of 1999, decided on 26th February, 2001.

(On appeal from the judgment dated 16-2-1998 of Lahore High, Court, Rawalpindi Bench, Rawalpindi in R.F.As. Nos.29 of 1995, 32 and 33 of 1996).

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

----O. XLI, R.31---Judgment of Appellate Court---Essentials---Where the judgment was pronounced immediately after the conclusion of the arguments by the counsel for the parties and the judgment stated all the contentions, the decision thereof giving reasons for the same, such judgment could not be termed to be in violation of the provisions of C.P.C.

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

----O.XLI, R.31---Judgment of Appellate Court---Delay in writing of judgment---After the pronouncement of judgment the same was written with delay ---No-prejudice caused-to the parties---Where the Appellate Court had dealt with all the contentions of the parties in the judgment, no prejudice was caused to the party---Supreme Court advised that after pronouncement of judgment, High Court would write the same without unnecessary delay.

(c) Contract Act (IX of 1872)---

---S. 65---Constitution of Pakistan (1973), Art. 185(3)---Void agreement--­Doctrine of estoppel ---Applicability---Transfer of rights prior to completion of allotment proceedings---Effect---Such agreement for the sale of disputed plot could not be termed to be void to its inception but viodable at the option of the Authorities---Bar contained in the agreement would not make the agreement for sale invalid or illegal---Petitioner had admitted the execution of agreement to se the plot and had received the consideration, therefore; the petitioner could not be allowed to back out from his promise on the equitable doctrine of estoppel ---High Court had given cogent reasons for arriving at the findings, and the same were legal and based on proper appreciation of evidence and law---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Limited 1996 SCMR 669; Muhammad Bakhsh and others v. The State 1989 SCMR 1473; H.B.F.C. v. Shahinshah Humayun Cooperative H.B.S. 1992 SCMR 19; Government of Sindh v. Khalil Ahmed 1994 SCMR 782(B); Mir Hashmat Ali v.. Birendra Kumur Ghosh PLD 1965 Dacca 56; M.K. Muhammad and others v. Muhammad Aboobaker 1991 MLD 801; Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906; Riaz Ahmed v. Amtul Hameed Koser 1996 CLC 678; Peyare Lal v. Mt. Misri AIR 1940 Allahabad 453; Bashir Ahmad v. Additional Commissioner 1983 SCMR 1199; Manzoor Hussain v. Ghulam Hussain PLD 1972 Lah. 855 and Amina Bi v. Bivi 1993 MLD 1207 distinguished.

(d) Contract Act (IX of 1872)---

----S. 23---Contract against public policy---Provisions of S. 23 of Contract Act, 1872---Applicability---Transferring of rights prior to completion of allotment proceedings--Lawful contract was entered into for lawful consideration and purpose between the parties except that the bar existed with regard to the transfer of rights in the property---Authorities were to exercise or enforce barring clause and on completion of the formalities by the allottee, and they could waive/vacate the bar ---Allottee had transferred the rights what he" possessed under the terms of the agreement and the Authorities could have taken action against the allottee in case any of the terms of the agreement in respect of allotment was infringed---Where terms of the contract could be enforced after removal of bar by the Authorities by ex post facto permission, such agreement between the parties with regard to sale of the property was riot illegal or against the public policy:

Mst. Bhaghan v. Muhammad Latif PLD 198,1 Lah. 146 and Akram Moquim Ansari v: Asghari Begum PLD 1971 Kar. 763 ref.

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

----S. 38---Phrase 'circumstances in their nature variable' occurring in S.38, Transfer of Property Act, 1882---Applicability---Phrase is generally referred to a case when facts constitute a legal necessity for the transfer of immovable property by a person having limited and qualified power of disposal of such property like under the Hindu Law.

Barkat Ullah Khan v. Abdul Hamid 1981 SCMR 1200 ref.

Khurshid Ahmad, Advocate Supreme Court and Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on­-Record for Petitioner.

Raja Abdul Ghafoor, Advocate-on-Record for the Capital Development Authority.

Date of hearing: 26th February, 2001.

2001 S C M R 1062

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

SARFRAZ---Appellant

versus

MUHAMMAD ASLAM KHAN and another--Respondents

Civil Appeal No. 1919 of 1996, decided on 16th March, 2001.

(On appeal from judgment dated 1-8-1996 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in Civil Miscellaneous No. 140 of 1993).

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

----S. 35---Judgment and decree, saving of---Provisions of North-West Frontier Province Pre-emption Act, 1950---Applicability---Till the promulgation of North-West Frontier Province Pre-emption Act, 1987, N.-W.F.P. Pre-emption Act, 1950 was holding the field as the previous law was repealed from the date of commencement of North-West Frontier Province Pre-emption Act, 1987---Proceedings connected and decree passed during the period would not be rendered without jurisdiction and void as the Act of 1950 was holding the field and the Court was also bestowed with jurisdiction to decide cases accordingly.

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

----Art. 203-D(3)(b)---Making of law in consonance with Injunctions of Islam---Proceedings under the law having been declared against Injunctions of Islam---Validity---Provisions of Art.203-D(3)(b) of the Constitution do not provide that if any law has been declared against the .Injunctions of Islam, proceedings instituted under such law would also come to an end on the date fixed by the Court for making such law in consonance with the Injunctions of Islam.

(c) Pre-emption---

----Right of pre-emption ---Filing of suit of per-emption after the date fixed by Supreme Court in Said Kamal Shah's case reported as PLD 1986 SC 360---Effect---Fresh suit after the stipulated period would not be instituted under the law which had been found contrary to the Injunctions of Islam but the claimants would be entitled for the enforcement of their rights under the Islamic Law of Pre-emption like the Provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits were applicable---Such fight was substantial right of an individual and the same could not be taken away merely due to repeal of law under which suit for its enforcement was filed.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445; Sardar Ali v. Muhammad Ali PLD 1687 SC 287 and Malik Gul Hassan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 ref.

(d) Interpretation of statutes---

---- Saving clause---Effect---Action started by a person has to be completed under the same law even if it has been repealed during pendency of the action unless the new law has saved the pending proceedings.

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

----S. 35---Saving of decree---Decree passed on 15-4-1987---Such decree was not liable to be set aside on the ground that the same had been passed without jurisdiction or otherwise was void.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.1~2(2), C.P.C.---Limitation---Where no period has been prescribed for filing of application under S. 12(2), C.P.C., provisions of Art. 181 of Limitation Act, 1908, being residuary would govern such proceedings according to which maximum period of three years has been prescribed for tiling the application under S. 12(2), C.P.C.

PLD 1971 SC 124 ref.

(g) Void order---

--- Proceedings against void order---Limitation---Jurisdiction---Aggrieved person is required to initiate proceedings within reasonable time against a void order---After lapse of considerable time when the order/decree under attack in fact has achieved finality, the jurisdiction of Court cannot be invoked.

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

----S. 35---Civil Procedure Code (V of 1908), S.12(2)--Pre-emption decree, setting aside of---Application under S.12(2), C.P.C. filed after five years--?Decree was passed on 15-4-1987 and the same had attained finality---Five years after the decree was passed, the respondent had assailed the decree in the light of judgment passed by Supreme Court in Rozi Khan's case reported as 1992 SCMR 445---Validity---Application under S.12(2), C.P.C. was barred by time and no justification was available to the High Court to condone inordinate delay contrary to the principles of natural justice because in the meanwhile valuable rights had accrued in favour of the appellant--?Order of High Court was set aside.

Muhammad Raz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397 ref.

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

----S.12(2)---Application under S. 12(2), C.P.C.---Forum to file such application---Where Appellate Court had decided the appeal vide judgment dated 2-11-1987, and revision filed before High Court was withdrawn on 17-6-1989 without decision of the same on merits, High Court had no jurisdiction to entertain and decide the application under S.12(2), C.P.C. in circumstances.

Abid Kamal v. Muddassar Mustafa and others 2000 SCMR 900 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Muhammad Hussain Lughumani, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 19th February, 2001.

2001 S C M R 1073

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

JANNAT-UL-HAQ and 2 others---Appellants

versus

ABBAS KHAN and 8 others---Respondents

Civil Appeals Nos .1246 of 1998, decided on 26th January, 2001.

(On appeal from the judgment dated 6-11-1997 of the Peshawar High Court, Peshawar, passed in Writ Petition No. 1662 of 1997).

(a) Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975)---

----S. 3--General Clauses Act (X of 1897), S. 6---Constitution of Pakistan (1973), Art. 185(3)---Award by Jirga---Repeal of law---Saving clause--­Effect---Leave to appeal was granted by Supreme Court to consider as to whether the award by Jirga and the order of Extra Assistant Commissioner, confirming the same alongwith the appeal, stood abated as on the filing of appeal, the entire case stood reopened and was to be deemed to be pending; whether declaration by High Court or Supreme Court that a particular law was void on account of being repugnant to any of the Fundamental Rights did not have the legal consequences of repeal of the same as such the principles as contained in S.6 of General Clauses Act, 1897, would not be attracted; whether once a law had been declared to be void being repugnant to any of the Fundamental Rights, the repeal of the same with provisions of saving of pending proceedings and continuation of the same to decide thereunder would amount to revival of such law and continuation of the same which was not permissible and, whether the interpretation in Rozi Khan's case (1992 SCMR 445) of the relevant law in the light of such provisions would not be attracted to the present case.

Government of N.-W.F.P.'s case PLD 1995 SC 281 and Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 ref.

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

----Art. 264---Expression "cease to have effect" used in Art. 264, Constitution of Pakistan---Connotation---Expression "cease to have effect" appearing in Art. 264 is only concerned with and relatable to the effect of repeal of laws and deals with the situation of a law being expressly "repealed" or "deemed to have been repealed" by, under, or by virtue of the Constitution---Words "cease to have effect" are .not synonymous with "repeal".

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

----Art. 264---General Clauses Act (X of 1897), S. 6---Repeal of statute--­Scope---Right of repeal being inherent in Legislature alone, any change of law including its annulment otherwise than by legislation would not constitute "repeal" as to protect any right, obligation acquired, accrued or incurred under an annulled law---Operation of law declared to be repugnant to the Injunctions of Islam or anything done or suffered thereunder before a specified date or continuation of suits pending on the specified date also would not amount to repeal of law.

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

----Art. 264---Repeal of law---Implications---Laws violative of Fundamental Rights---Provisions of Art. 264 of the Constitution govern the implication of repeal of law and the same is not attracted to the laws which are declared to be void on ground of their being violative of Fundamental Rights enshrined in the Constitution.

(e) Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975)---

----S. 3---General Clauses Act (X of 1897), S. 6---Award by Jirga---Repeal of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975---Effect---Suit was decreed by Jirga on 14-3-1991---Appeal and revision against the decree were also dismissed---

High Court upheld the decision of Jirga--Contention was that annulment of the Regulation by High Court and affirmed by Supreme Court would nullify the subsequent entire proceedings of the Court constituted under the Regulation or the Constitutional jurisdiction of High Court---Validity---Such contention was raised for the first time before Supreme Court---Grounds raised in the High Court substantially challenged the judgment of the Courts constituted under. the Regulation were purely on factual plane and not a semblance of what had been challenged in Supreme Court was made discernible in the Constitutional petition---Judgment of High Court being unexceptionable, Supreme Court declined to interfere with the same.

Government of N.-W.F.P.'s case PLD 1995 SC 281; Gulzar Hassan, Advocate and 8 others v. Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, State of Frontier, Government of Pakistan, Islamabad and 3 others PLD 1975 Lah. 1219: Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415; Kundal Khan v. Agha Jan PLD 1990 Pesh. 21; Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445; Ghulam Sarwar v. Abdul Jalil PLD 1991 SC 500; Sardar Ali v. Muhammad Ali PLD 1988 SC 287 and Baz Din and another v. President, Special Military Court No. 7 and others 1979 SCMR 541 ref.

Saeed Baig, Advocate Supreme Court for Appellants.

Qazi M. Anwar, Senior Advocate Supreme Court instructed by Ejaz M. Khan, Advocate-on-Record for Respondents Nos. l to 6.

Date of hearing: 26th January, 2001:

2001 S C M R 1083

[Supreme Court of Pakistan]

Present: Sheikh Riaz Ahmed, Munir A. Sheikh and Mian Muhammad Ajmal, JJ

THE STATE through Collector of Customs---Appellant

versus

NASIM AMIN BUTT and others---Respondents

Civil Appeals Nos. 1361 to 1381 and Criminal Appeals Nos.348, 349. and 158 to 170 of 2000, decided on 31st January, 2001.

(On appeal from the judgments of the Lahore High Court dated 1-6-2000 passed in Writ Petitions Nos.8932, 9734, 8503, 8504, 8349, 8534, 8364 of 2000 and dated 12-6-2000 passed in Writ Petitions Nos.9731, 9732, 9733, 11162, 11166, 11161, 11167, 8095, 10783, 11168 of 2000 and dated 30-5-2000 passed in Writ Petition No.8098 of 2000 and dated 29-5-2000 passed in Writ Petitions Nos.7638 of 2000 and dated 16-9-1998 passed in Criminal Miscellaneous Nos.213-Q and 216-Q of 1998, dated 1-2-2000 passed in Criminal Miscellaneous Nos.3-Q, 4-Q, 8-Q, 9-Q, II-Q, 23-Q, 29-Q, 12-Q, 21-Q, 22-Q and 32-Q of 2000).

(a) Control of Narcotic Substances Act (XXV of 1997)--­

----Ss. 6, 7, 8, 9(c), 14 & 15---Customs Act (IV of 1969), S. 156(1)(8)---Constitution of Pakistan (1973), Arts. 185(3) & 13---Narcotics, smuggling of---Trial of accused persons under two different laws---Leave to appeal was granted by Supreme Court to consider; whether the offences for which the accused persons were being tried under Ss.6, 7, 8, 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, were the same for which they had earlier been tried under 5.156(1)(8) of Customs Act; 1969, as. such, was violative of Art. 13 of the Constitution.

(b) Control of Narcotic Substances Act. (XXV of 1997)---

----Ss. 6, 7, 8, 9(c), 72, 73 & 74---Customs Act (IV of 1969), S.156(1)(8)---Offences relating to narcotic drugs, psychotropic substances or controlled substances---Dual trial of accused persons for such offences--­Jurisdiction of Special Court constituted under the provisions of Customs Act, 1969---Scope---Accused persons were charged for smuggling of narcotic substances and were prosecuted under both the said laws---Conviction was passed by the Special Court under the Customs Act, 1969, while the trial under the provisions of S.9(c) of Control of Narcotic Substances Act, 1997, was pending adjudication---High Court quashed the subsequent proceedings pending under the provisions of Control of Narcotic Substances Act, 1997--­Validity---Under the proviso to S.72 of Control of Narcotic Substances Act, 1997, offences relating to such substances were to be tried under the Control of Narcotic Substances Act, 1997, notwithstanding anything contained in the Customs Act, 1969 or any other law---Special Courts created under Control of Narcotic Substances Act, 1997, had the exclusive jurisdiction to try .such offences to the exclusion of any other Court under any law inclusive of the Customs Act, 1969---Prosecution of the accused persons under the Customs Act, 1969, was without jurisdiction---Proceedings taken under the provisions of Customs Act, 1969, conviction recorded and sentence awarded were illegal as the same had been taken, recorded and passed by a Court which was not vested with jurisdiction to proceed with the matter---Such proceedings from the very inception were coram non judice---Quashing of the prosecution under the provisions of Control of Narcotic Substances Act, 1997, in relation to conviction recorded and sentence passed by Special Court constituted under the Customs Act, 1969, was not justified as the Special Court was. not vested with the jurisdiction to proceed in the matter--­Where conviction recorded and the sentence awarded to the accused persons by the. Court under the provisions of Customs Act, 1969, were without lawful authority and of no legal effect, such proceedings were quashed by Supreme Court---Trial of the accused persons was valid under the provisions of Control of Narcotic Substances Act, 1997---Special Court under the Control of Narcotic Substances Act, 1997 was directed to proceed with the trial---Supreme Court, however, observed that confession, if any, made by the accused during the trial under the Customs Act, 1969 was not of any legal effect and trial was to be conducted independently in accordance with law.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 72, 73 & 74---Narcotic substances---Trial of offences relating to narcotic substances- --Jurisdiction of Court---Invoking the provisions of other laws---Scope---Such trial cannot be proceeded by any Court other than the one established under the Control of Narcotic Substances Act, 1997, to the exclusion of the Courts established under any other law---Provisions of other laws prescribing greater punishments or prohibitions on the date of commission of offence can be invoked by the Court, while awarding the sentence to the accused.

K.M. Virk, Advocate Supreme Court for the State.

Respondents (in C.As Nos. 1361 to 1381 of 2000: Ex parte.

Dil Muhammad Tarar, Advocate Supreme Court for Advocate­ General Punjab (in all others).

Nemo for the Remaining Respondents (in Criminal Appeals Nos.348, 349 and 158 to 170 of 2000).

Date of hearing: 31st January, 2001.

2001 S C M R 1091

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

QADIR BAKHSH and 10 others---Appellants

versus

Kh. NIZAM-UD-DIN KHAN and 4 others---Respondents

Civil Appeal No.894 of 1994, decided on 22nd January, 2001.

(On appeal from the judgment dated 20-4-1994 of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No. 134 of 1994).

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 21 & 22---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether on facts and circumstances of the case High Court was legally justified in affirming the findings of Appellate Court on the issue of limitation and non-deposit of pre­emption money and extension in time for its deposit coupled with substitution by or modification with security.

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

----Art. 185---Appeal to Supreme Court---Raising of pleas not considered in leave granting order passed by Supreme Court---Effect---Supreme Court declined to consider the pleas which were not considered at the time of leave granting order.

(c) Punjab Pre-emption Act (I of 1913)---

----S. 22---Zar-e-Panjam (preemption money), deposit of---Extension of time for such deposit---Furnishing of security instead of deposit of cash amount---Trial Court extended time for deposit of Zar-e-Panjam and during the extension the pre-emptor applied for furnishing of personal security--­Trial Court refused the deposit of such security but First Appellate Court allowed the same which was affirmed by High Court---Suit was dismissed by Trial Court but the findings were reversed by First Appellate Court and the suit was decreed---High Court in exercise of revisional jurisdiction upheld the judgment of Appellate Court---Objection to the furnishing of personal security was raised by the vendees---Validity---Where in a suit for pre­emption extension of time for deposit of Zar-e-Panjam or for that matter its substitution with the order of furnishing security, instead of cash-deposit, was refused, but 'allowed by First Appellate Court and affirmed by High Court, such exercise of discretion by Appellate Court was neither fanciful nor, arbitrary Gild the same was unexceptionable---Issues having correctly been decided by both the First Appellate Court and High Court appeal against such judgment was dismissed by Supreme Court.

Muhammad Nawaz and others v. Muhammad Aslam and others 1990 SCMR 968; Mst. Parveen v. Jamshaid Begum PLD 1983 SC 227; Siddique Khan v Shakoor Khan PLD 1984 SC 289; Mst. Sardaro and others v. Mst. Nazran Begum and others PLD 1985 SC 274; Malik Barkat Ali Dogar v. Muhammad Shafi and others PLD 1990 SC 60; Niaz Muhammad Khan v. Mian Afzal Raqib PLD 1974 SC 134; Lal Din v. Allah Ditta PLD 1967 Lah. 703; Abdul Wahid and others v. Ibrahim and others PLD 1966 (W.P.) BJ 8; Shankar Tukaram Kakade v. Lakshmibai Shankarrao Ghadge AIR 1928 Born. 225; Muhammad Afsar Khan and another v. Khadim Hussain and 3 others PLD 1978 SC (AJ&K) 143 and Ch. Zulfiqar Ali v. Mian Akhtar Islam and another PLD 1967 SC 418 ref.

(d) Power of Attorney---

Interpretation of power of attorney---Role of attorney---Scope---Power of attorney has two aspects: viz. the power to do something on behalf of principal which is generally beneficial to him and the power to exercise the discretion depriving the principal of his right to his assets, properties etc.--­Part of the power of attorney which tends to accretion of the right to the properties and assets to the principal may not be interpreted in stringent terms---Where the attorney has given power to do all the things on behalf of the principal, such attorney cannot be deprived of the power to file suit or appeal on behalf of his principal.

Gul Zarin Kiani, Advocate Supreme Court instructed by Anwar H. Mir, Advocate-on-Record for Appellants.

S.M. Zafar, Senior Advocate Supreme Court instructed by M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 10th November, 2000.

2001 S C M R 1103

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhagwan Das, JJ

Messrs OLYMPIA SHIPPING AND WEAVING MILLS. LTD. and another---Appellants

versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Respondent

Civil Appeals Nos. 1278 to 1281 of 1998, decided on 12th, January, 2001.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 11-3-1998, passed in R.F.As. Nos. 176, 177, 216 and 217 of 1997).

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

----Art. , 185---Appeal to Supreme Court---Appellant was not entitled to raise any ground of appeal on which leave was not' granted or which was not raised before High Court---Supreme Court would be within its rights to allow such ground of appeal where a, pure question of law was raised or non­ consideration of a material issue was likely to cause serious miscarriage of justice and prejudice to any of the parties.

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

----S. 8---Fair rent, fixation of---Jurisdiction of Rent Controller---Duration of such fixation---Exercise of discretion---Scope---Provisions of S.8 of Sindh Rented Premises Ordinance, 1979, do not create any fetters on the power of the Rent Controller or the Appellate Authority, to fix the fair rent from a particular date---Very wide discretion has been conferred by law on the Rent Controller to fix the fair rent from the date of application or from the date of order and in suitable cases even from a date between the two events--­Discretion vested in the Rent Controller as well as Appellate Court is, however, not arbitrary or whimsical---Such discretion is to be exercised judiciously with great care and caution, being in the nature of public trust--­No inflexible rule of law could be laid down as to date of payment of fair rent as the same depends on the facts and circumstances of each case.

H.Cooper v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115; Khyber Insurance Company Limited v. Pakistan National Shipping Corporation PLD 1994 SC 725; Miran Devi v. Birbal Dass. AIR .1977 SC 219 and Raja Ram v. Sham Lal AIR 1954 Punjab 208 ref.

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

----S. 8---Fair rent, fixation of---Fixation of seventeen times higher rate of rent---Validity---Where value of property had appreciated in a particular locality, so also there had been increase in the cost. of construction; maintenance, repairs, renovation or increase in local taxes Property Tax etc. by the Legislature, the rate of rent could be revised which could be at higher percentage than the normal increase of 10% per annum---Such increase in rent was not unfair or inequitable in circumstances.

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

----S. 8---Fair rent, fixation of---Concurrent findings of fact by the Courts below-.--Rent fixed by the Rent Controller was 17 times higher than the existing rent the order was upheld by High Court---While fixing the rent, prevalent market rent of the similar premises situated in similar circumstances in the same or adjoining locality was kept in view by the Rent Controller---Validity---Supreme Court would not generally interfere with the concurrent, findings of fact unless it was shown that the findings were recorded by misappreciation of evidence and/or misconstruction of law and were against the settled principle for appraisal of evidence--Tenants had not been able to bring their case within the exception clause with the result that Supreme Court declined to interfere with the findings of fact and, the discretion , exercised by' Rent Controller and the High Court.

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

----S. 8---Fair rent---Determination of---Existence of four essential features as provided under S.8,. whether absolute requirement---Non-existence of four factors postulated in S.8 of Sindh Rented Premises Ordinance, 1979---Not an invariable rule of law that for determination of fair rent, all the four factors must co-exist, as such the four factors have to be cumulatively taken into consideration for determination of fair rent-Factors mentioned in S.8 of Sindh Rented Premises Ordinance, 1979, are only required to be taken into consideration for the purpose of exercising judicious discretion and cannot be applied mechanically.

Mst. Muneera Kaleemuddin v. Muhammad Mahmood Alam 1991 SCMR 1028; Shakeel Adilzada v. S.M. Rafi 1995 MLD 181; Messrs Eastern Automobiles (Pvt.) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi PLD 1993 Kar. 9; Mst. Aqila Khatoon v. Abu Bakar Khan PLD 1987 Kar. 541 and Noori Trading Corporation (Pvt.) Ltd. v. Abdul Ghafoor 1997 CLC 205 ref.

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

----S. 8---Fair rent, fixation' of---Four factors incorporated in S.8 of Sindh Rented Premises Ordinance, 1979---Object---Absence of any of said factors---Effect---Said factors are in the nature of guiding principles for Rent Controller for determination of fair rent---Cumulative effect of all these factors being quite relevant and helpful in arriving at a just conclusion must be given due weight---Common ground available in most of cases is the prevalent market rent of the similar premises situated in similar circumstances in the same or adjoining locality---Existence of all the four factors is not the invariable rule of law and presence of all factors in a case may lead to appreciation in determining rate of rent for the purpose of fair rent---Absence of any of the factors would not, in any case, prejudice the case of tenant before Rent Controller.

Muneeb Ahmed Khan, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record (absent) for Appellants.

Mian Mushtaq' Ahmed, Advocate Supreme Court and A.A Siddiqui, Advocate-on-Record (absent) for Respondents.

Date of hearing: 12th January, 2001.

2001 S C M R 1111

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Javed Iqbal and Hamid Ali Mirza, JJ

ALLAH DAD and others---Appellants

versus

MUHAMMAD NAWAZ and others---Respondents

Criminal Appeals Nos. 153 and 154 of 1998, decided on 15th March, 2001.

(On appeal, from the judgment dated 13-8-1997 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No. 176 of 1992, Murder Reference-No.9 of 1993).

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

----Ss. 302/109, 337-F(ii) & 337-F(iii)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether impugned judgment of -High Court wherein evidence on record had neither been discussed nor analyzed on the basis of contentions raised by either side would be sustainable; whether prosecution witnesses who were admittedly injured and had fully implicated the accused could be discredited or deemed interested on the ground of their relationship with the deceased; whether prosecution evidence was materially discrepant and contained improbabilities casting doubts upon actual incident thereby making it untrustworthy by virtue of reasoning offered on behalf of the accused; what was the effect of injuries caused to the accused; whether under the law it would be the responsibility of prosecution or that of defence to logically explain their existence on their bodies; whether motive was duly established or remained shrouded in mystery and what, was the impact of motive upon ocular evidence adduced by the prosecution especially in the light of the stand taken by some of the accused in their respective statements and whether evidence brought on record which included ocular testimony, medical evidence, recoveries and reports of Experts coupled with motive was sufficient to establish collective responsibility of all the accused persons and, sentence awarded to them needed enhancement.

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

----Ss. 302/109, 337-F(ii) & 337-F(iii)---Appraisal of evidence---Presence of injured prosecution witnesses at the scene of occurrence was established without any shadow. of doubt---Eye-witnesses had corroborated each other on each material point without any significant contradiction and the mere fact of their being interested in prosecution was not, by itself, enough to discard their evidence altogether---Ocular testimony was consistent and unimpeachable and although it did not require any corroboration, yet the corroboration was available in the shape of recoveries and medical evidence---Prosecution had satisfactorily explained the simple injuries sustained by the accused---Motive of crime had been proved---Accused had committed the preplanned and cold-blooded murders of two persons--­ Convictions of accused were maintained in circumstances---Not necessary for the High Court to mention the evidence in detail or to narrate the points which were found irrelevant for the purpose of a specific finding---Accused had been rightly awarded death sentence by the Trial Court and the order of High Court converting the death sentence of one accused to imprisonment for life, being unjust and improper, was set aside and that of Trial Court was restored as his case being identical with co-accused he also deserved death penalty-Appeals were disposed of accordingly.

Abdul Rehman v. Gadai Khan and 3 others 1972 SCMR 676; Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 and Fateh Khan and others v. The State PLD 1963 SC 89 ref.

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

----S. 302---Appreciation of evidence---Mere presence of eye-witness at the scene of occurrence does not necessarily establish that he has told truth in the Court about the occurrence.

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

----S. 302---Appreciation of evidence---Corroboration---Independent corroboration is not an inflexible rule---Even uncorroborated testimony may be relied upon with reference to other indisputable facts.

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

----S. 302---Appreciation of evidence---Principle---Ocular evidence and motive---Ocular testimony is to be looked into on its own intrinsic value and it cannot always be regarded as subservient to motive---Motive was a state of mind, and is not always established---Motive and ocular testimony were distinct and former would not necessarily control the later.

A. K. Dogar,, Advocate Supreme Court and Munir Ahmed Peracha, Advocate Supreme Court for Appellant (in Criminal Appeal No. 153 of 1998).

Sardar Muhammad Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in Criminal Appeal No. 153 of 1998).

Zaman Bhatti, Advocate Supreme Court and Dil Muhammad Tarar, Advocate Supreme Court for the State (in Criminal Appeal No. 153 of 1998).

Sardar Muhammad Ishaque, Advocate Supreme Court and Ejaz 'Muhammad Khan, Advocate-on-Record for Appellant (in Criminal Appeal No. 154 of 1998):

Munir Ahmed Peracha, Advocate Supreme Court, Zaman Bhatti, Advocate Supreme Court and Dil Muhammad Tarar, Advocate Supreme Court for Respondent (in Criminal Appeal No. 154 of 1998).

Dates of hearing: 8th and 10th January, 2001.

2001 S C M R 1128

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Deedar Hussain Shah, JJ

GOHAR MASOOD and others---Appellants

versus

SECRETARY, HEALTH DEPARTMENT and others---Respondents

Civil Appeals Nos. 1105 to 1218, 1491 to 1526 and 1812 of 2000, decided on 26th March, 2001.

(On appeal from the judgment dated 17-4-2000, passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.964, 9.14, 925, 937, 895, 896, 961, 1304, 1048, 1308, 1066, 1084, 974, 1092, 1078, 1075, 1073, 1057, 1043, 1089, 1056, 1083, 1306, 1059, 1125, 1090, 1052, 1070, 1127, 1093, 1129, 1128, 1061, 1055, 1079, 1126, 1091, 1086, 1065, 1061, 966, 1074, 1068, 970, 1305, 1058, 1076, 1309, 1063, 897, 969, 1051, 975, 1069, 1307, 1082, 1067, 1064, 1071, 1080, 1153, 939, 962, 927, 1987, 946, 920, 959, 954-, 950, 947, 2174, 913, 9: ', 952, 948, 941, 909, 1666, 929, 910, 2462, 914, 1322, 917, 1193, 1173, 1164, 1169,1166, 1163, 1165, 1168, 1162, 1170, 1171, 1167, 1161, 916, 1174, 1160, 1172, 1159, 967, 685, 918, 922, 940, 943, 960, 1109,. 1110, 1111, 1112, 1208, 1212, 1214; 1255, 1499, 1851, 1303, 679, 1213, 669, 672, 673, 677, 678, 686, 963, 949, 668, 671, 675, 680, 681, 683, 684, 1419, 1074 and 817 of 1999 respectively).

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

----Art. 212(3)---Denotification of political appointments in the Health Department of Province of Punjab in pursuance of a letter from' Cabinet Division of the Federal Government---Leave to appeal was granted by Supreme Court to the civil servants to consider the points that as to whether before denotifying the appointments aggrieved civil servants were not entitled to show-cause notice in view of principles of natural justice enshrined in the maxim "audi alteram partem"; that whether the civil servants had been subjected to discrimination by the concerned department because some of their colleagues whose appointments were denotified alongwith them but subsequently termination letters of their services were withdrawn for amongst other reasons that circular/letter of Government in question was not applicable to the employees of Health Department of the Province of Punjab, if so, to what effect; that whether circular/letter issued by the Cabinet Division of Federal Government was applicable to the employees of Health Department of the Province of, Punjab in view of the ' explanation of the Health Department issued subsequently; that what would be the effect of judgment of Service Tribunal in the case of another employee of the same department and whether letter of the Cabinet Division in question had any legal sanctity; if so, whether it had been applied in letter and spirit on the employees of Health Department of the Division.

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

---Art. 212---Denotification of political appointments---Provincial Government in the Health Department of the Province of Punjab in pursuance of a circular/letter from the Cabinet Division of the Federal Government terminating services of certain employees---Termination from service of the employees was not termination simpliciter but pursuant to the policy decision taken by the Chief Minister of the Province for denotification of all political appointments in consequence whereof all the District Health Officers in the Province were instructed to denotify immediately all appointments made on political basis and consequently, the services of the employees were terminated, admittedly without serving show-cause notice--­Validity---Supreme Court, without expressing, any opinion on the merits of the case observed that inquiry was necessitated in each and every case individually and not in a rolled up manner before passing the termination orders and it appeared appropriate that in each case the Competent Authority should issue a show-cause notice stating therein, with particularity, the grounds for proposed termination within three weeks from the date of receipt of copy the judgment of the Supreme Court; that on receipt of show-cause notices, each employee shall furnish reply with liberty to raise all pleas available to him under the law; that Competent Authority, on receipt 'of replies, shall finally dispose of all these cases individually on merits and in accordance with law within three, weeks thereafter through a speaking order, copy of which shall be sent to all concerned; that in the event of a favourable decision, all qualified persons shall be entitled to reinstatement with full back benefits; that in case of those not found eligible or qualified to be retained in service they would be entitled to pursue their remedies before the appropriate Service Tribunal after complying with the requirement of departmental appeal/representation there against and that Director-General Health Services, Punjab shall ensure the compliance of the directions of the Supreme Court by the Competent Authority/Authorities.

Ch. Ghulam Qadir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellants (in C. As. Nos. 1105 to 1115 of 2000).

Ch. Abdul Ghani, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Appellants (in C.As. Nos. 1116 to 1121 of 2000).

Irshad Ahmad Qureshi, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record (absent) for Appellants (in C. As. Nos. 1122 to 1132, 1134 to 1137, 1139 to 1143, 1145 to 1174 and 1526 of 2000).

Ch. Inaymatullah, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Appellant (in C. A. No. 1812 of 2000).

Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. Nos. 1491 to 1506-of 20M) .

Faiz-ur-Rehman Advocate-on-Record (absent) for Appellants (in C.As Nos 1175, 1149 1144, 1138, 1508, 1509 and 1525 of 2000).

S. Abul Aasim Jafri, Advocate-on-Record (absent) for Appellant (in C.A.No.1176 of 2000).

Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellants (in C. As. Nos.1177 to 1218 and 1508 of 2000).

Sh. Salahuddin, Advocate-on-Record (absent) for Appellants (in C. As. Nos. 1510 to 1524 of 2000).

Tariq Khokhar, Additional, Advocate-General, Punjab for Respondents (in all Appeals).

Date of hearing: 26th March, 2001.

2001 SCMR 1135

[Supreme Court of Pakistan]

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

HAQ NAWAZ---Petitioner

versus

THE STATE---Respondent

Constitutional Petition (unnumbered) in Criminal Review Petition No.2 of 2000 in Criminal Appeal No. 175 of 1999, decided on 1st February, 2001.

(On appeal from the judgment dated 16-12-1999 of this Court passed in Criminal Review Petition. No.2 of 2000).

(a) Constitution of Pakistan (1973)--­

----Arts. 184 & 188---Supreme Court Rules, 1980, O.XXVI, R.1---Penal Code (XLV of 1860), Ss. 302 & 120-B---Explosive Substances Act (XI of 1908), S.3---Review before Supreme Court--=Second review petition--­Repetitious review petitions---Legality---Review petitions under Islamic administration of justice---Limits on number of reviews---Applicability of Islamic precepts of administration of justice in present times---Principles of Islamic administration of justice were referred on behalf of the accused in support of the contention that under the Islamic dispensation of justice any number of review petitions were maintainable provided they satisfied two conditions: (i) on reconsideration of a given case the Court could infer that certain injustice was apparent on the face of the record and (ii) that the social conditions of the society must be such as existed during the days when the above-referred direction was made---Applicability---Existing conditions were that serious vicious moral crises prevailed in the society and in this view of the matter if the last-mentioned condition was conceded, havoc would be played with the judicial system which was already tottering on the brink of demolition---Unless the present society came to the moral standards of those days, the aforementioned exposition of Islamic Injunctions would not hold water---Impugned orders were not shown to have been based on erroneous assumption of material facts or to have been recorded without adverting to a provision of law---No departure in passing the, said orders was even pointed out to have been made from established norms of law and precepts provided in Constitution and no error could be shown apparent on the face of the record---Contentions raised on behalf of accused essentially related to the reappraisal of evidence which could not generally furnish a ground for review and certainly not for the second review petition even in the garb of a Constitutional petition---All the evidence had collectively pointed to the guilt of the accused and such conclusion was not materially affected by the alleged discrepancies in the statements of the witnesses---Constitutional petition/second review petition was dismissed by Supreme Court in circumstances.

Raja Khan v. Crown PLD 1950 FC 18; Aminullah v. State PLD 1967 SC 629; Ghulam Nabi v. Farrukh Lateef and 2 others 1987 SCMR 608; Zulfiqar Ali Bhutto v. State PLD 1979 SC 741 and ref.

(b) Islamic jurisprudence---

---Administration of justice---Review of judgment---Applicability of Islamic precepts---Conditions.

Rasheed Murtaza Qureshi, Advocate Supreme Court for Petitioner.

Aziz A. Munshi, Attorney-General, Maqbool Elahi Malik, Advocate-General, Punjab with Tariq Mehmood Khokhar, Additional Advocate-General Punjab and Fozi Zafar, Assistant Advocate-General, Punjab (on Court's Notice).

Date of hearing: 1st February, 2001.

2001 S C M R 1140

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Deedar Hussain Shah, JJ

PAKISTAN STATE OIL COMPANY LTD., KARACHI---Appellant

versus

Pirjee MUHAMMAD NAQI---Respondent

Civil Appeal. No. 1291 of 1999, decided on 27th March, 2001.

(On appeal from the judgment dated 8-6-1999 passed by the High Court of Sindh, Karachi in F:R.A. No.31 of 1986).

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

----Ss. 18 & 15---Constitution of Pakistan (1973), Art.185(3)---Wilful default in payment of rent---Change in ownership---Contentions of the tenant were that lease deed had provided special mode of payment and the tenant was entitled to a notice of demand if he had defaulted in payment of rent for 60 days and he could be held defaulter only if payment was not made within 30 days from the written demand; that no notice of demand had been given and in view of the terms of the lease deed the condition laid down therein would have preference irrespective of the Sindh Rented Premises Ordinance, ,1979 and that High Court had legally erred in upsetting the legal and well-­reasoned order of the Rent Controller---Landlord pointed out that submissions of the tenant were misconceived and irrelevant as the case was covered by S.18, Sindh Rented Premises Ordinance, 1979 for S.18 of the Ordinance would prevail over the stipulations in the lease deed---Validity--- Leave to appeal was granted by Supreme Court to consider in depth the submissions of both the parties and to determine if in view of the submissions of the tenant the High Court had erred in holding that the tenant had defaulted in payment of rent and reversing the judgment of the Rent Controller.

Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38; Muhammad Yousuf v. Abdullah PLD 1980 SC 298 and Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 ref.

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

----Ss. 18 & 15(2)(ii)---Default in payment of rent---Change in ownership--­Default in payment of rent was a-serious matter because it abridged the right of the landlord which was to be protected---Linking of the exemption of a tenant under S.18, Sindh Rented Premises Ordinance, 1979 with S.15(2)(ii) of the said Ordinance makes a complete whole for not transgressing, the statutory provision regarding default in that anything not done by- the concerned party to absolve itself of the responsibility under the statute will surely lead to the specified results, i.e. making of an order of ejectment on the ground of default which could not be deemed to be technical in nature--­When default was proved to have been wilful, deliberate, contumacious and not technical in nature, ejectment of tenant would be warranted---Findings recorded by the High Court being duly supported by the evidence on record and there being no misreading or failure to consider the same, Supreme Court declined interference.

Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38 distinguished.

Muhammad Yousuf v. Abdullah PLD 1980 SC 298; Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Inayat Ullah v. Zahoor­ud-Din 1987 SCMR 1313; Younus v. Pakistan State Oil Co. Ltd. PLD 1988 Kar. 338; Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa 1998 SCMR 2085; Noor Muhammad v. Mehdi PLD 1991 SC 711; Hasamul Haque Agha v. Mrs. Saeeda Begum 1991 CLC 1121; Civil Petition No.97-K of 1999; Civil Petition No.477-K of 1999; Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; Mirza Jawad Baig v. Pakistan State.0il Co. Ltd. 1985 MLD 536; Pakistan Burmah Shell Ltd. v. Khalil Ahmad and another 1988 MLD 210; Khuda Bakhsh v. -Muhammad Yaqoob and others 1981 SCMR 179; Abdul Aziz v. Abdul Ghani 1986 SCMR 1857; Moizur Rehman v. Mrs. Fakhra Javed PLD 1991 Kar. 452; Muhammad Siddiq v. Abdul Hameed PLD 1976 Kar. 696; Reckitt & Colman of Pakistan Ltd. v. Saifuddin G. Lotia 2000 SCMR 1924; Mrs. Alima Ahmad v. Amir Ali PLD 1984 SC 32; Shezan Ltd. v. Abdul Ghaffar 1992 SCMR 2400; Khalid Ghouri v. Mrs. Tazeen Chaudhry 2000 SCMR 1209; Fazal Elahi v. Tanveer Hussain 1994 MLD 1626; Haji Usman Bhai v. Syed Ali Imam Zaidi 1994 SCMR 1918; Mst. Zubaida Begum and 3 others v. Muhammad Muslim through Legal Heirs PLD 1966 Kar. 357; Feroz Khan v. Syed Zoha 1996 CLC 949; Khawaja Muhammad Yaqub Khan v. Sh. Abdur Rahim 1968 SCMR 734; Muhammad Sarwar v. Muhammad Shafi 1986 SCMR 1638; Messrs Pakistan Burmah Shell Ltd. v. Khalil Ahmad PLD 1996 Kar. 467; Pakistan Food Manufacturers v. Sadiq Ishaque and others 1992 CLC 482; Munawar Hassan v. Badiul Hasan 1992 CLC 2495; Kala Khan through Legal Heirs v. Anjuman Musalmananne Mashriaqui Punjab, Karachi 1993 CLC 250 and Abdul Rasheed v. Mst.Shah Jahan Begum CA. No.1234 of 1999 ref.

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

----Ss. 15 & 18---Default in payment of rent---Where the tenant was cognizant of the death of landlord and he also knew the persons entitled to receive the rent yet if he deposited the rent in the name of their predecessor­-in-interest he could be safely found to be defaulter.

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

----Ss. 15 & 22---Execution proceedings---Order of ejectment could be executed against a person having come into possession of subject property through tenant---Landlord was not required to seek the relief of possession afresh by filing a suit.

1968 SCMR 734 and 1986 SCMR 1638 ref.

(e) Sindh Rented Premises Ordinance (XV11I of 1979)---

----S. 15---Default in payment of rent---Where a landlord refused to accept rent. it was mandatory for the tenant first to remit the rent through postal money order and if that was not done, deposit of rent in the Court would not absolve the tenant from being a defaulter for the relevant period.

(f) Words and phrases--

----“Technical default" ---Meaning.

Reckitt & Colman of Pakistan Ltd. v. Saifuddin G: Lotia 2000 SCMR 1924 ref.

Raja Haq Nawaz Khan, Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record (absent) for Appellant.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, A. Aziz Khan, Advocate-on-Record (absent) and Abdul Qadir Khan, Advocate for Respondents Nos. 2 to 8.

Abdul Hafeez Lakho, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for the Intervenor.

Date of hearing: 22nd March, 2001.

2001 S C M R 1156

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Javed Iqbal, JJ

NASRULLAH KHAN---Appellant

versus

RASUL BIBI---Respondent

Civil Appeal No. 1318 of 1995, decided on 19th February, 2001.

(On appeal from the judgment/order, dated 20-4-1994 of the Lahore High Court, Lahore passed in R.S.A. No.313 of 1975).

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

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider the question, whether the High Court on the basis of material available on record was justified in reversing the concurrent judgments/decrees of the ,Courts below.

(b) Islamic Law---

----Gift---Onus to prove---Non-appearance of donor before Revenue Officer--- Effect---Onus was on the donee to prove voluntary nature of gift in his favour, by adducing convincing evidence about the presence of donor before Revenue Officer for the purpose of admitting the gift by him.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 45---Mutation---Attestation of mutation in different revenue estate--­Attestation of mutation in ordinary course of nature should have been taken up in the revenue estate to which the same belonged.

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

----S. 100---Second appeal---Scope---Gift---Concurrent findings of fact by the Courts below---Setting aside such findings by High Court in second appeal---Dispute was regarding gift of suit property made in favour of the appellant---Courts below concurrently decided the matter in favour of the appellant but the High Court set aside the findings in second appeal--­Validity---Appellant failed to establish valid gift in his favour---High Court, after due consideration, rightly accepted the second appeal of the respondent setting aside the concurrent findings of the Courts below giving sound and plausible reasons----No misreading and non-reading of evidence or jurisdictional error in the judgment was found which was based on the principles laid down by Supreme Court---Appeal was dismissed.

Principles of Mahomedan Law by D.F. Mullas; Ami Chand v. Fajroo PLD 1991 SC 1001 and Abdul Wahab v. Aurangzeb and 2 others 1997 SCMR 1087 ref.

Asif Ranjha, Advocate Supreme Court and M.N. Qureshi, Advocate-on-Record for Appellant.

Syed Farooq Hassan Naqvi, Advocate Supreme Court for Respondent.

Date of hearing: 15th February, 2001

2001SCMR1161

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Nazim Hussian Siddiqui and Rana Bhagwan Das, JJ

Mst. ATTIYYA BIBI KHAN and others‑‑‑Appellants

versus

FEDERATION OF PAKISTAN through

Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others ‑‑‑ Respondents

Civil Appeals Nos. 758, 759, 760, 761, 765, 766, 768, 769, 772, 876, 887, 888, 889, 890, 891, 892, 901, 902, 928, 929, 930, 931, 932, 933, 934, 935,936, 937, 938, 939, 940. 941, 942, 943, 944, 945, 946, 947, 1302 of 1998, 348 of 1999, 48 of 2000 and Civil Petition No. 1905 of 2000, decided on 22nd March, 2001.

(On appeal from the judgment/order dated 25‑3‑1998 of the Lahore High Court, Lahore passed in Writ Petitions Nos‑3772, 2384, 329, 2901, 2989, 3010, 3221, 3336, 3639, 1505, 2722, 2908, 3187, 4148, 4536, 387, 2843 and 4023 of 1998).

Per Nazim Hussain Siddiqui, J.‑‑----

(a) Educational institution‑‑‑

‑‑‑‑ Admission to Medical College‑‑‑Candidates for admission were the real contesting parties; and to safeguard their individual interest. they had also challenged the entitlement of the rival candidates‑‑‑Fate of such rival candidates could not be decided without affording them an opportunity of being heard.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Syed Ahmed Saeed Kirmani v. Punjab Province and others 1982 CLC 590 and Mussarat Uzma Usmani and another v. Government of Punjab through Secretary Health, Lahore and another PLD 1987 Lah. 178 distinguished.

(b) Maxim----

‑‑‑‑"Audi alteram partem”‑‑‑Applicability‑‑‑Admission to Medical College‑‑­Candidates for admission were the real contesting parties, and to safeguard their individual interest, they had also challenged the entitlement of the rival candidates‑‑‑Fate of such rival candidates could not be decided without affording them an opportunity of being heard.

Mushtaq Ahmed Mohal v. The Lahore High Court and others 1997 SCMR 1041 ref.

(c) Educational institution‑‑‑

‑‑‑‑ Admission to Medical Colleges‑‑‑Locus poenitentiae, principle of—­Application ‑‑‑Phrase "till a decisive step is taken"‑‑‑Significance‑‑‑Relevant Authority though could recede before "decisive step" was taken, but when admissions in the college were granted to the candidates, in accordance with the prospectus, and the results were communicated to them before the Constitutional petitions were filed, they had not committed any wrong‑‑­Decisive steps in the matters thus were already taken and thereafter steps contrary to their interest could not be taken and principle of locus poenitentiae was attracted in these cases.

Pakistan and another v. S. Hussain Ali Shah A. Fazalani PLD 1960 SC (Pak.) 310 and Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407‑ref.

Per Rana Bhagwan Das, J.‑‑---.

(d) Educational institution‑‑‑

‑‑‑‑ Admission to Medical College‑‑‑Candidates whose process of selection and admission had been finalized before the verdict of High Court on the subject, would not be affected by the judgment of High Court especially when they were not party to the proceedings before the High Court as they had acquired a valuable right on the strength of the admission policy and the representation bona fide made by the relevant Authorities.

(e) Judgment‑‑‑

‑‑‑‑ Operation of‑‑‑Judgment would be operative from the date of announcement and would have no retroactive legal implications.

(f) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 25‑‑‑Equal protection of law and equal treatment before law‑‑­Principles stated.

Following are the principles with regard to equality of citizens:

(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test responsibilities of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based‑‑

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad 1997 SCMR 1026 and Mushtaq Ahmad Mohal v. Hon'ble Lahore High Court 1997 SCMR 1043 ref.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 quoted.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 254, 22, 25, 29, 37(c), 18 & 2A‑‑‑Educational institution‑‑­Admission in Medical Colleges‑‑‑Equality of citizens‑‑‑Reasonable classification ‑‑‑Concept‑‑ ‑Discrimination ‑‑‑Effect ‑‑‑Principles.

Article 25 of the Constitution unambiguously guarantees that all citizens are equal before law and are entitled to equal protection of law and that they shall not be discriminated on the basis of sex alone. Inter alia, Articles 2A, 18 and 25 of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice. There is no difference between individuals of mankind on the basis of race, colour and territory and that all human beings are equal in the eyes of Allah as He created all from a quintessence of clay.

No doubt, concept of reasonable classification has been held to be implicit in Article 25 of the Constitution which guarantees equality of citizens and equal protection of law. Nevertheless, it is equally well‑settled that the classification must be reasonable and must have nexus with the objects sought to be achieved by such classification.

Constitution must be read as an organic whole and all its provisions must be harmoniously reconciled instead of picking out inconsistencies between different provisions.

Article 25, apart from stipulating equality and equal protection of law to all citizens, expressly prohibits discrimination on the basis of sex and provides that the State may make special provisions for protection of women and children. Article 22 of the Constitution forbids discrimination on grounds of race, religion, caste or place of birth in educational institution, receiving aid from public revenue but enables a public authority to make provisions for the advancement of any socially or educationally backward class of citizens.

Article 37(c), inter alia, requires that the State shall make technical and professional education generally available and higher education equally accessible to all on the basis of merit.

Admission to Government aided institutions was not exclusively covered by Article 22 of the Constitution but Article 25 was equally applicable. On the same principle there is no reason for ignoring the requirements of Article 37(c) of the Constitution. No doubt, aforesaid Article occurs in the Principles of Policy and is not directly enforceable nevertheless Article 29 of the Constitution requires each organ or authority of State to act in accordance with those Principles. These Principles of Policy are "conscience of the Constitution and the basis of all executive and legislative action". The provisions relating to Fundamental Rights ought to be read together with the directive Principles of Policy.

Article 37(c) ought to be read with Article 25 in matters concerning. admission to Professional Colleges. Thus, reading Article 25 alongwith Articles 2A, 22 and 37(c) of the Constitution would show that only such classification could be deemed reasonable which fosters the objects of the Constitution i.e. to make higher education available on merits and at the same time to accommodate the interests of the socially or economically disadvantaged sections of the people for the purpose of fostering genuine rather than nominal equality.

The concept of a reasonable classification is premised on the principle that the object is not to secure nominal or formal equality but genuine equality amongst different classes or groups of citizens.

Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Shrin Munir v. Government of Punjab PLD 1990 SC 95; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 418; Employees of the Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548; Abdul Qadir Shaikh v. Registrar, N.E.D: University of Engineering and Technology 1992 CLC 2222; Abdul Fareed v. N.E.D. University of Engineering and Technology 2001 CLC 347; C.P.L.As. Nos.474‑P and 494‑P of 2000; Abdul Qadir Bhatti v. Government of Sindh PLD 1976 Kar. 1102 and Ejaz Aslam v. University of Peshawar PLD 1975 Pesh. 186 ref.

(h) Interpretation of Constitution‑‑‑

‑‑‑‑Constitution must be read as an organic whole and all its provisions must be harmoniously reconciled instead of picking out inconsistencies between different provisions.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

Per Rana Bhagwan Das, J.; Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ., agreeing‑‑

(i) Educational institution‑‑‑

‑‑‑‑Admission to Medical Colleges in the Province of Punjab‑‑‑Reservation of seats for admission for the course of M.B.,B.S. for sons and daughters of medical practitioners, medical officers and professors serving in teaching institutions; sons and daughters of the employees of the medical colleges; candidates domiciled in under‑developed area like Dera Ghazi Khan, Rajanpur, Khushab etc.; candidates belonging to Federally Administered Tribal Areas and the sons and daughters of Armed Forces Personnel‑‑­ Legality‑‑‑Held, reservation of seats for all categories in Medical Colleges was illegal and without lawful authority, except for disabled persons within the meaning of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, students domiciled in Federally Administered Tribal Areas and under‑developed districts as well as Azad Kashmir and Northern areas, Afghan Refugees who had taken school and intermediate education in the educational institutions situated within those areas, and students of foreign countries on reciprocal basis for a period of seven years for the time being.

Where 'actual inequality exists; the State must resort to compensatory State action and, therefore, scheme of admission in Medical Colleges who make a certain percentage of reservation for those having suffered some initial disadvantage owing to their social and economic conditions. In the same spirit Articles 22 and 25 of the Constitution permit special provision to be made for women and children or socially or educationally backward and undeveloped classes. Therefore, reservation of seats for such category may be justified. The benefit of such reservation should only be confined to those who have acquired their school and intermediate education from such less developed areas and not to any one who manages to obtain a domicile certificate from that area.

Similarly, reservation of seats for disabled persons is eminently reasonable inasmuch as because of their disabilities these candidates could not compete with their more fortunate compatriots and, therefore, it is the obligation of the State to take some compensatory action for them to fulfil its obligation to create genuine equality amongst all classes of citizens. There is yet another class of students which deserves serious consideration i.e. reservation of seats for foreign students domiciled and studying in foreign countries on the basis of reciprocity. Likewise, a provision can be legitimately made for children of Afghan Refugees who otherwise might not be eligible for admission on open merit basis. Students belonging to Azad Kashmir and Northern areas also might fall within the purview of socially, economically and educationally less developed areas and they deserve some kind of indulgence till such time those territories come up to the level of developed areas.

For this purpose it would be in the fitness of things that respective Governments take appropriate steps to identify socially and educationally backward areas in order to enable the children receiving education in such areas to qualify for admission to Medical Colleges against reserved seats.

Supreme Court thus declared reservation of seats for all categories in Medical Colleges illegal and without lawful authority, except for disabled persons within the meaning of Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (Ordinance XL of 1981), students domiciled in FATA and under‑developed districts as well as Azad Kashmir and Northern Areas, Afghan Refugees who have taken school and intermediate education in educational institutions situated within those areas, and students of foreign countries on reciprocal basis for a period of seven‑years for' the time being.

Candidates who were admitted under interim orders of Supreme Court and had reached 3rd year or 4th year class M.B.B.S. shall continue to avail the benefit of earlier admission policy as depriving such persons of the benefit of their, education was bound to adversely affect their educational career. Furthermore, by vacation of their seats no person would be benefited as they had already completed three years of education.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Muhammad Shabbir Ahmed v. Secretary, Finance Division, Islamabad 1997 SCMR 1026; Mushtaq Ahmad Mohal v. Hon'ble Lahore High Court 1997 SCMR 1043; Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Shrin Munir v. Government of Punjab PLD 1990 SC 95; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 418; Employees of the Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548; Abdul Qadir Shaikh v. Registrar, N.E.D. University of Engineering and Technology 1992 CLC 2222; Abdul Fareed v. N:E.D. University of Engineering and Technology 2001 CLC 347; C.P.L.As. Nos.474‑P and 494‑P of 2000; Abdul Qadir Bhatti v. Government of Sindh PLD 1976 Kar. 1102 and Ejaz Aslam v. University of Peshawar PLD 1975 Pesh. 186; S. Shreenivasa v. Registrar, Andhra University AIR 1985 Andh. Pra. 81; Subbarao v. Andhra University AIR 1964 Ker. 316; Shrin Munir v. Government of Punjab PLD 1990 SC 295; Falsafa Jamal v. Government of Balochistan 1999 CLC 1547 and Nationalized Secondary School v. Government of Punjab 1999 MLD 809 ref.

Per Nazim Hussain Siddiqui, J.

M. Sardar Khan, Senior Advocate Supreme Court for Appellants (in C.As.Nos.758, 766, 887 and 888 of 1998).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants (in C. As. Nos. 876, 1302. of 1998 and C. P.No.1905 of 2000).

Mansoor Ahmad, Deputy Attorney‑General for Appellants (in C.As. Nos. 759, 761, 891 and 930 to 947 of 1998).

Nemo for Appellants (i`n C.As.Nos.765, 766 and 889 of 1998).

Bashir Ahmed Ansari, Advocate Supreme Court for Appellants (in C.A. No.48 of 2000).

Ali Hasan Shah, Advocate Supreme Court (in C.A. No.772 of 1998).

Muhammad Munir Peracha, Advocate Supreme Court for Appellants (in C.As. Nos.890 of 1998 and 348 of 1999).

Kh. Haris Ahmad, Advocate Supreme Court for Appellants (in C.A.No.902 of 1998).

Ch. Muhammad Ikram, Advocate Supreme Court for Appellants (in C.A. No.892 of .1998).

Raja Abdul Ghafoor, Advocate Supreme Court for Appellants (in C.As. Nos.759 and 929 of 1998).

Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As.Nos.768 and 769 of 1998).

Ch. Akhtar Ali for Appellants (in C.As. Nos.901 and 928 of 1998).

Mansoor Ahmad, Deputy Attorney‑General for Respondents (in C.As. Nos.758, 759, 760, 766, 768, 765, 769, 772, 887, 888, 890, 901, 902, 929 and 1302 of 1998).

Tariq Khokhar, Additional Advocate‑General, Punjab for Respondents (in C.As.Nos.761, 876, 892, 928 of 1998, 930 to 947, 348 of 1999 and 48 of 2000).

Rao Muhammad Yousaf Khan, Advocate Supreme Court for Respondent No.5 (in C.A. No.876 of 1998).

Dates of hearing: 15th, 16th and 17th January, 2001.

2001 S C M R 1191

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Qazi Muhammad Farooq, JJ

MUSLIM COMMERCIAL BANK LIMITED---Appellant

versus

MUHAMMAD NASIM---Respondent

Civil Appeal No. 188 of 2000, decided on 9th March, 2001.

(On appeal from the judgment dated 31-3-1999 of the High Court of Sindh, Karachi passed in R.F.A. No.617 of 1998).

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

----S. 22---Limitation Act (IX of 1908), Art. 181---Constitution of Pakistan (1973), Art. 185(3)---Ejectment proceedings---Execution application--­Limitation---Leave to appeal was granted by Supreme Court to consider whether in absence of specific application of Limitation Act, 1908, the execution application under S.22 of Sindh Rented Premises Ordinance, 1979, would be governed under Art. 181 of Limitation Act, 1908, or otherwise.

Mehmood Elahi Farooqui v. M/s. United Bank Limited PLD 1998 Kar. 133; Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and Hassan Khan Durrani v. Mehboob Khan 1987 CLC 2185 ref.

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

----S. 22---Limitation Act (IX of 1908), Art. 181---Execution petition--­Limitation- --Provisions of S.22 of Sindh Rented Premises Ordinance, 1979---Object---Execution petition was filed beyond a period of three years---High Court applied the provisions of Art. 181 of Limitation Act, 1908, to the proceedings and dismissed the petition being time-barred--­Validity---Intention behind S.22, Sindh Rented Premises Ordinance, 1979 was that final orders should be executed by Rent Controller in a manner which was simple and free from limitation-related complications--­Legislature, for such reasons had not provided therein that an order of eviction passed by Rent Controller should be executed as a decree, as it had been provided in West Pakistan Urban Rent Restriction Ordinance, 1959 and Cantonments Rent Restriction Act, 1963---High Court had not only overlooked the intention of Legislature behind S.22 of Sindh Rented Premises Ordinance, 1979, but by making Art. 181 of Limitation Act, 1908, its integral part, had also assumed the function of legislation and removed a defect or supplied an omission which could be done only by the Legislature---Execution petition under S.22 of Sindh Rented Premises Ordinance, 1979, would not be hit by the bar of limitation if filed after three years -of the final order passed by the Rent Controller---In absence of any time frame in regard to filing of execution application delay was immaterial---Judgment of High Court was set aside by Supreme Court.

(c) Administration of justice---

---- Duty of Court---Omission/defect of statute---Duty of Court---It would have been more appropriate if the omission or the defect had only been pointed out and the corrective action left to the Legislature as the same is not the function of the Courts to plug the gaps or remove the defects in an enactment.

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

----S. 21---Appeal---Laches, principle of--Applicability---Principle of laches is pressed into service in Constitutional petitions and not in appeals under Sindh Rented Premises Ordinance, 1979.

Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88 ref.

(e) Interpretation of statutes---

----Not function of the Court to plug the gaps or the defects in an enactment.

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz .Muhammad Khan, Advocate-on-Record for Appellant.

Ch. Muhammad Ikram, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 9th March, 2001.

2001 S C M R 1197

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Javed Iqbal, JJ

IQBAL BOOK DEPOT and others---Appellants

versus

KHATIB AHMED and 6 others---Respondents

Civil Appeals Nos. 1805 to 1812 of 1397, decided on 21st February,. 2001.

(On appeal from the judgment of the High Court of Sindh dated 29-5-1997 passed in F.R.As Nos. 361 to 367 and 385 of 1988 respectively).

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

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Leave to appeal was granted by Supreme Court to consider, whether landlord had agreed with the tenants to re-construct the premises and re-induct them after re-construction thereof; whether the personal and bona fide requirement of the premises was genuine or not; and whether High Court was justified in reversing, the finding of the Rent Controller on the question of personal and bona fide requirement without examining the reasons given by the Rent Controller in support of his conclusion.

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

----S. 15---Bona fide personal need of landlord---Proof---Statement of landlord on oath---Effect---Where the statement on oath was quite consistent with his averment made in the ejectment application and the same had neither been shaken nor anything had been brought in, evidence to contradict the statement, such statement on oath would be considered sufficient for acceptance of the ejectment application---Conclusion drawn by High Court being unexceptionable did not call for interference.

Juma Sher v. Sabz Ali 1997 SCMR 1062 and Akhtar Qureshi v. Nisar Ahmad 2000 SCMR 1292 ref.

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

----S. 15---Re-construction of premises---Bona fide personal need of landlord---Even in case of non-construction of building the same could have been got evicted on the ground of personal bona fide use by the landlord.

Dawood v. Muhammad Yasin PLD 1982 SC 227 ref.

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

----S. 15---Bona fide personal need of landlord---Nature of business—­Selection of area and nature of business is choice of landlord and the same cannot be interfered with.

F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832; Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCMR 1296 and Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 593 ref.

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

----S. 15---Bona fide personal need of landlord---Which portion of the premises is required by landlord, has to be left to the discretion of landlord who alone has the authority to decide such aspect of the matter---No advice or suggestion can be made binding upon the landlord as the tenants cannot act as gratuitous adviser.

1968 SCMR 1087 ref.

(f) Sindh Rented remises Ordinance (XVII of 1979)---

----S. 15---Bona fide personal need of landlord-Findings of fact---Good faith of landlord being a question of fact, finding on this issue cannot be takers exception to unless it is shown that the finding suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence.

1978 S C M R 437 ref.

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

----S. 15---Bona fide personal need of landlord---Connotation---Need had necessarily to be fixed somewhere in between dependent on the facts of each case and the condition of the parties to the litigation and the nature of the property involved---Mere wish, convenience, whim or fancy of landlord, would not be enough to show that the premises was required in good faith.

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

----S. 15---Bona fide personal need of landlord---Proof---Order of eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of the premises.

PLD 1986 Kar. 84 ref.

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

----S. 15---Bona fide personal need of landlord---Landlord having 'Green Card' from United States of America---Effect---Holding of 'Green Card' hardly matters and would have no bearing on the genuine and the bona fide need of landlord.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and I4, Shabbir Ghaury, Advocate-on-Record (absent) for Appellants (in all Appeals).

A. Aziz Khan, Advocate-on-Record for Respondents (in all Appeals)

Date of hearing: 21st February, 2001.

2001 S C M R 1208

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Mian Muhammad Ajmal, JJ

Messrs I.C.C. TEXTILE LTD. and others---Appellants

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals os.1345 to 1356, 1477, 1676 to 1681 of 1999 and 1225 of 2000, decided on 16th March, 2001.

(On appeal from order, dated 30-11-1998 passed by Lahore High Court, Lahore in Writ Petitions Nos.1637 of 1992, 16491 of 1995, 2511 of 1992, 347 of 1992, 6181 of 1996, order dated 10-3-1999 in Writ Petition No.4131 of 1999, order dated 12-3-1999 in Writ Petitions Nos.3847 and 3846 of 1992, order dated 18-3-1999 in Writ Petitions Nos.7438 and 7439 of 1995, order dated 28-10-1999 in Writ Petition No.20224 of 1999, judgment dated 30-11-1998 Writ Petitions Nos.15933 of 1995, 1352 of 1996, 4153 of 17515 of 1992, 7516 of 1992, 15059 of 1997 and 7186 of 1996).

(a) Finance Act (XII of 1991)---

----S.12---Wealth Tax Act (XV of 1963), Preamble---Constitution of Pakistan (1973), Arts. 185(3) 77, 141, 142 & Fourth Sched., Part I, Federal Legislative List, Entry No.50---Corporate Assets Tax, levy of---Leave to appeal was granted by Supreme Court to consider, whether a levy known as 'Corporate Assets Tax' imposed vide S.12 of the Finance Act, 1991, by Federal Legislature, could be charged on the basis of gross value of assets inclusive of liabilities, under Entry 50 of the Federal Legislative List, Fourth Sched. read with Arts. 77, 141 & 142 of the Constitution; whether the levy of "Corporate Assets Tax, in respect of value of assets held by a Company on a specific date" as envisaged under S.12 of Finance Act, 1991, fell within the legislative competency of Federal Legislature; whether the 'Corporate Assets Tax' could be co-related to Art.70 of the Constitution and Entry No.50 of the Federal Legislative List was contained in the Fourth Sched. to the Constitution of Pakistan (1973); whether the 'Value of assets' implied gross value was distinct from and exclusive of the liabilities of the Company as shown on the balance-sheet; whether the levy was discriminatory as well as confiscatory; whether the demand of levy and or imposition of additional tax or imposition of penalty could be made by officer of Wealth Tax under Wealth Tax Act, 1963, in the absence of rules to be framed under S.12 of Finance Act, 1991 and whether the demand of levy and or imposition of additional tax or imposition of penalty could be made by officer of Wealth Tax, under the Wealth Tax Act, 1963, in the absence of conferment of power by Central Board of Revenue as per provision of the Finance Act, 1991 and or the Wealth Tax Act, 1963.

(b) Finance Act (XII of 1991)----

----S.12---Constitution of Pakistan (1973), Arts. 70(4), 142(a) &. Fourth Schedule, Part I, Federal Legislative List, Entry No.50---Levy of taxes on capital value of assets ---Legislation regarding such taxes---Jurisdiction of Parliament---Federal Legislative List and Concurrent Legislative List of the Constitution---Scope---Entries in Federal Legislative List, under the provisions of Art.l42(a) of the Constitution, fall within the exclusive jurisdiction of the Parliament and subjects in the entries mentioned in the Concurrent List are the subjects which fall within the domain of Parliament or the Provincial Assemblies as the case may be---Taxes on the capital value of the assets being covered by Entry No.50 of the Federal Legislative List, Part I, Fourth Sched. of the Constitution, Parliament has exclusive power to impose the same.

(c) Finance Act (XII of 1991)----

----S.12---Constitution of Pakistan (1973), Arts.70(4) & 142(a)---Levy of corporate tax on assets, one by the Parliament and the other by the Provincial Assembly ---Constitutionality--- Taxation, one by the Parliament and the other by the Provincial Government on fixed assets is not prohibited.

Haji Muhammad Shafi and others v. Wealth Tax Officer and others 1992 PTD 726 rel.

(d) Wealth Tax Act (XV of 1963)---

----S. 3---Constitution of Pakistan (1973), Fourth Sched., Part I, Legislative List, Entry No.50---Levy of tax on assets---"Net value of assets" and "capital value "---Distinction---Entry No.50 of the Federal Legislative List, Part I, Fourth Sched. of the Constitution and Wealth Tax Act, 1963, both provide levy of tax on the assets irrespective of the fact whether it is net value of the tax or not and the only difference is that under S.3 of Wealth Tax Act, 1963, a mechanism has been provided for calculating and imposing the tax on the assets, therefore, it cannot be considered that the net value of assets is not part of the capital value.

M/s. Ellahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 528; Haji Muhammad Shafi and others v. Wealth Tax Officer PLD 1989 Kar. 15; PLD 1989 Karachi 15; Union of India v. Harbhajan Singh Dhillon (1972) 83 ITR 582; Saeedir Chandra v. Wealth Tax Officer AIR 1969 SC 59; Barnasee Dass v. Wealth Tax Officer AIR 1965 SC 1387 and Assistant Commissioner, Madras v. PKC Company AIR 1970 SC 169 ref.

(e) Words and phrases---

----'Assets'---Connotation---Word 'assets' is generally used in collective plural, and in commercial law it denotes the aggregate of available property, stock in trade, cash etc., belonging to a merchant or mercantile company--­Asset is also used to signify the means which a person or bank or a corporation has as compared with his/its liabilities that' is, its identity is separate and is not inclusive of debt or liabilities but is only comparable to them and in this sense the word 'assets' has been used to denote whole of the property.

Black's Law Dictionary ref.

(f) Finance Act (XII of 1991)---

----S.12---Constitution of Pakistan (1973), Art. 142 & Fourth Sched., Part I, Legislative List, Entry No.50---Corporate Assets Tax, levy of ---Vires of S. 12 of Finance Act, 1991---Manner prescribed under S.12(12)(d) of Finance Act, 1991, whether contrary to Entry No.50, Part I of Fourth Sched. of the Constitution---Corporate Assets Tax was a tax on capital value of assets as per Entry No.50 of Federal Legislative List and merely in view of the manner prescribed under S.12(12(d) of Finance Act, 1991, for calculating and. imposing tax, the same could not be held contrary to the Entry or unconstitutional nor its constitutionality could be objected to for that reason---Legislature had power to promulgate S.12 of Finance Act, 1991 under Art. 142 of the Constitution to levy Corporate Assets Tax on the value of the assets held by a company on a specified date---Gross assets of a company as per S.12(12)(d) of the Act were liable to tax inclusive of the liabilities of the company as per Entry No.50 of the Federal Legislative List, Part I, Fourth Sched. of Constitution---Corporate Assets Tax, therefore, was rightly imposed under the provisions of S. 12 of Finance Act, 1991.

AIR 1962 SC 552; AIR 1969 SC 378; 1992 SCMR 563; B.P. Biscuits Factory Limited v. Wealth Tax Officer and another 1996 SCMR 1470; Sanaullah Woollen Mills Ltd. and another v. Monopoly Control Authority PLD 1987 SC 202 and PLD 1989 Karachi 15 ref.

(g) Finance Act (XII of 1991)---

----S.12---Corporate Assets Tax---Levy of Corporate Assets Tax subject to value of assets---Reasonable differentia between the categories of assessees--­Scope---Where the tax had been levied upon the assessees subject to the value of the assets owned by them, the same had provided reasonable differentia between categories of assessees and there was no uniform policy to charge a fixed tax, without caring; to the value of the assets---Provision of S.12 of Finance Act, 1991, was neither discriminatory nor was based on illegal differentia.

AIR 1961 SC 552 and AIR 1969 SC 378 ref.

(h) Words and phrases---

----"Held"---Meaning.

Ballentine's Law Dictionary ref. .

(i) Finance Act (XII of 1991)---

----S.12---Transfer of Property Act (IV of 1882), Ss.60 & 67---Corporate Assets Tax, levy of---Mortgage of property---Recovery of Corporate Assets Tax on mortgaged property---Where the property has been mortgaged without transferring its proprietary rights, the same would be deemed to be held by the original owner, and therefore, for all legal purposes its owner would be liable to make payment of Corporate Assets Tax.

AIR 1945 Lah. 264; AIR 1952 Patna 469;' AIR 1960 SC 1030 and (1997) 83 ITR 582 distinguished.

(j) Wealth Tax Act (XV of 1963)---

----Ss.23, 24, 25 & 35---Finance Act (XII of 1991), S.12(13)---Corporate Assets Tax, levy of---Failure to issue Notification qua framing of Rules--­Contention was that as no Notification had been issued to carry out the purposes of S.12 of Finance Act. 1991, the tax could not be recovered--­Validity---Requirement of S.12(13) of Finance Act, 1991, had been substantially complied with view of the Circular issued by Central Board of Revenue---By means of the Circulars, Wealth Tax Officer had been authorized to receive the returns as per S.12(3) of the Finance Act, 1991 and to deal with the same---Such Circulars, besides providing procedure for filing of the returns had also laid down the procedure of filing of appeals and revisions in terms of Ss.23, 24, 25 & 35 of Wealth Tax Act, 1963 as per the requirement of S.12(10) of the Finance Act, 1991.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Muhammad Ahmad Zaidi, Advocate-on-Record for Appellants (in Civil Appeals Nos. 1345 to 1349, 1351 to 1355 of 1999 and 1225 of 2000).

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in Civil Appeals Nos.1350 and 1477 of 1999).

Ziaullah Khan Kiayani, Advocate Supreme Court and Mahmudul Islam, Advocate- on-Record (absent) for Appellants (in Civil Appeal Nos. 1676 and 1677 of 1999).

Ch. Ehsan-ul-Haq Bhalli, Advocate Supreme Court (Absent) and Ch. Mehdi Khan Mehtab, Advocate-on-Record (Absent) for Appellants in (Civil Appeal No. 1678 of 1999).

Mian Ashiq Hussain, Advocate Supreme Court and Sh. Masood Akhtar, Advocate- on-Record (Absent) (in Civil Appeals Nos. 1679 and 1680

Mahmudul Islam, Advocate-on-Record- (Absent,) for Appellant (in Civil Appeal No. 1681 of 1999).

Respondents Nos. l and 2 (in all cases): Ex parte.

M. Ilyas, Khan, Advocate Supreme Court and Ch. Muhammad Aslam Chatta, Advocate-on-Record for Respondent No.3 (in all cases).

Mansoor Ahmad, Dy. A.-G. on Court's notice in all cases.

Dates of hearing: 6th to 8th December, 2000, 11th and 12th

2001 S C M R 1225

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Munawar Ahmed Mirza

and Khalil‑ur‑Rehman Khan, JJ

ILAM‑UD‑.DIN through Legal Heirs‑‑‑‑Petitioner

versus

Syed SARFRAZ HUSSAIN through Legal Heirs‑‑‑‑Respondent

Civil Petition for Leave to Appeal No.365 of 1997, decided on 28th October, 1997.

(On appeal from the judgment dated 12‑9‑1997 of the High Court of Sindh Karachi passed in R.A. No. 19 of 1991).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Civil Procedure Code (V of 1908), O.I, R. 10 & O.VI, R.17‑‑‑Appeal‑‑‑Raising of new plea‑‑‑Amended plaint was filed without permission of Trial Court and the same was not objected to by the petitioner‑‑‑Plea of non‑impleading of necessary parties was taken for the first time before Supreme Court‑‑‑Validity‑‑‑Petitioners were precluded from raising the plea qua amended plaint at such belated stage‑‑‑Plea raised for the first time before the Supreme Court could not be allowed.

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

‑‑‑‑O.XVIII, R.18‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Local inspection ‑‑‑Failure to file objection to inspection note‑‑‑Suit by the respondent was dismissed by Trial Court‑‑‑Lower Appellate Court inspected the disputed site personally in presence of the parties and allowed the appeal on the basis of the inspection note‑‑‑Judgment of the Lower Appellate Court was assailed before High Court in revision and the same was also dismissed‑‑‑Validity‑‑‑Correctness of the inspection note which formed basis for reversing the judgment and decree of Trial Court had not been challenged at any stage‑‑‑Both on legal and factual side, the appellate and revisional forums had appropriately exercised jurisdiction vested in them‑‑‑No substantial reasons appearing from the record which might warrant interference in the concurrent findings of the Courts below‑‑‑Leave to appeal was refused.

Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioners.

Respondents in person.

Date of hearing: 28th October, 1997

2001 S C M R 1227

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

PAKISTAN STEEL MILLS‑‑‑‑Petitioner

versus

SINDH LABOUR APPELLATE TRIBUNAL and 3 others‑‑‑‑Respondents

Civil Petition No.264‑K of 2000, decided on 22nd August, 2000.

(On appeal from the order, dated 10‑3‑2000 of the Federal Service Tribunal, in Appeal No.84(K) (Corp.E) of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Constitution of Pakistan (1973), A .212(3)&‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Abatement of proceedings‑‑‑Employee of statutory corporation was dismissed from service‑‑‑Constitutional petition against the judgments of Labour Court and Labour Appellate Tribunal was pending when the provisions of S.2‑A were added to Service Tribunals Act, 1973, resultantly the Constitutional petition stood abated‑‑­Formal order in the Constitutional petition was passed on 10‑2‑2000 by High Court‑‑‑Petitioner did not approach Service Tribunal within the prescribed period of limitation of 90 days, consequently, the appeal was dismissed by Service Tribunal as time‑barred‑‑‑Validity‑‑‑Where no sufficient explanation for condonation of delay was shown by the employee, no exception could be taken to finding of the Tribunal holding that the appeal was barred by time, considering that each day's delay was not accounted for‑‑‑Leave to appeal was refused.

Masood Mukhtar Naqvi, Advocate Supreme Court for Petitioner.

Respondent No.4 in person.

Date of hearing: 22nd August, 2000.

2001 S C M R 1229

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

GHULAM SARWAR BHUTTO ‑‑‑‑Petitioner

versus

CHIEF SECRETARY, GOVERNMENT OF SINDH

and 2 others‑‑‑‑Respondents

Civil Petition No.247‑K of 2000, decided on 11th July, 2000.

(On appeal from the order, dated 6‑3‑2000 of the Sindh Service Tribunal, Karachi, passed in Appeal No.59 of 1998).

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

‑‑‑‑S.4 ‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Filing of appeal before Service Tribunal after 120 days pending departmental appeal‑‑‑Service Tribunal dismissed appeal filed by the civil servant being time‑barred for the reasons that the same was filed during the pendency of departmental appeal after the expiry of 120 days‑‑‑Earlier Supreme Court had remanded the case to Service Tribunal for decision afresh on the question of limitation‑‑‑Appeal was again dismissed by Service Tribunal on the same ground of limitation‑‑­Validity‑‑-Service Tribunal was directed by Supreme Court to dilate upon question of limitation and decide the same after affording proper opportunity of hearing to all concerned in accordance with the observations of Supreme Court passed in earlier petition, keeping in view the provisions 'of S.4 of Sindh Service Tribunals Act, 1973, and its applicability to the case of the 'civil servant‑‑‑Petition for leave to appeal was converted into appeal, order of Service Tribunal was set aside and case was remanded back to the Tribunal for a fresh adjudication on the question of limitation accordingly.

Petitioner in person.

Munir‑ur‑Rehman, Additional Advocate General for Respondents.

Date of hearing: 11th July, 2000.

2001 S C M R 1231

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

SAFDAR‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and others‑‑‑‑Respondents

Civil Petition No.604 of 1999, decided on 24th July, 2000.

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

‑‑‑‑Art. 25‑‑‑Equal protection of law‑‑‑Concept‑‑‑Meaning‑‑‑Reasonable classification ‑‑‑Scope‑‑‑Principles for application of equality enumerated.

Following are the principles for application of equality clause of the Constitution:

(1) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(2) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(3) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(4) that no standard of universal application to test' reasonableness of a classification can be laid down as what maybe reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(5) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which, is arbitrary and not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(6) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(7) that in order to make a classification reasonable it should be based:‑‑

(a) On intelligible differentia which distinguished persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

Government of Sindh through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 ref.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑‑

‑‑‑‑S.8‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑­Constitution of Pakistan (1973), Arts.25 & 185(3)‑‑‑Grievance petition ‑‑‑ Maintainability‑‑‑Reasonable classification, principle of ‑‑‑Applicability‑‑­ Exemption from provisions of the Standing Orders‑‑‑Provincial Government, jurisdiction of‑‑‑Pakistan Security Printing Corporation was exempted by the Government through Notification‑‑‑Petitioner was employee of the Corporation and was served with show‑cause notice‑‑‑Such notice was assailed by the petitioner before Labour Court in grievance petition‑‑‑Labour Court and Labour Appellate Tribunal dismissed the petition as well as appeal‑‑‑Validity‑‑‑Provincial Government had unlimited powers under the provisions of S.8 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, of granting exemption from all or any of the provisions of the Standing Orders Ordinance by issuing Notification in the official Gazette‑‑‑Where the Corporation was dealing with sovereign functions of State and was engaged in. printing of currency notes, Government Bonds, Securities, stamps and other valuable, material which were necessary for the economic stability in order to see that the same ran smoothly and uninterrupted, the Legislature, in its wisdom, authorised the Government to exempt from any of the provisions of the Standing Orders Ordinance‑‑‑Reasonable classification was always permissible under Art.25 of the Constitution‑‑‑Main grievance of the petitioner in the present case was not against S.8 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but it was against the Notification creating such exemption which was withdrawn‑‑‑Leave to appeal was refused.

Syed Shahenshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate‑ on‑Record for Appellant.

N.C. Motiani, Advocate‑on‑Record for Respondents. .

Date of hearing: 24th July, 2000.

2001 S C M R 1236

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Mian Muhammad Ajmal, JJ

Mst. BASWAR SULTAN‑‑‑‑Petitioner

versus

Mst. ADEEBA ALVI‑‑‑‑Respondent

Civil Petition No. 157‑P of 2000, decided on 25th May, 2000.

(On appeal from the judgment dated 29‑3‑2000 of the Peshawar High Court, Peshawar, passed in Civil Revision No.23 of 1997).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Specific performance of agreement to sell‑‑‑Gift deed‑‑‑Non‑mentioning of Identity Card number in the deed ‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether in view of the admission of the defendant in the written statement and in her statement in the Trial Court, the Lower Appellate Court and the High Court were still legally justified to hold that the gift deed had not been proved because. of the non‑entry of the numbers of Identity Cards of the executant and the marginal witnesses of the gift deed; that whether the defendant could be allowed to plead a case different from the one as stated in the original written statement; and that whether any oral evidence could be led or could be considered as against the contents of the deed.

Sh. Wazir Muhammad, Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑on‑Record for Petitioner.

Mian Muhammad Ismail Qureshi, Advocate‑on‑Record for Respondent.

Date of hearing: 25th May, 2000.

2001 S C M R 1239

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J. and Munir A. Sheikh, J

WAPDA and another ‑‑‑‑Appellants

versus

ABDUL HAFEEZ KHAN‑‑‑‑Respondent

Civil Appeal No. 869 of 1996, decided on 24th May, 2000.

(On appeal from the judgment, dated 20‑11‑1994 of the Punjab Service Tribunal, Lahore, passed in Appeal No.643‑A of 1991).

(a) Province of West Pakistan (Dissolution) Order (P.O. 1 of 1970)‑‑‑

‑‑‑‑Art. 12(1)(c)‑‑‑Punjab Service Tribunals Act (IX of 1974). SA(i), proviso (b)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Punjab Service Tribunal, jurisdiction of‑‑‑Contention raised by the Authority was that the civil servant was employee of the Authority and was seeking relief in respect of a post to which he had been appointed by the Authority, the Provincial Service Tribunal had no jurisdiction to entertain his appeal; as such the judgment of the Tribunal was without jurisdiction‑‑‑Further contention was that the Authority was competent to lay down conditions in the nature of qualifications for promotion to higher appointments and as the civil servant had not fulfilled the condition upon which he was promoted as Revenue Officer the Authority was competent to revert him to the post of Senior Superintendent‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions raised by the Authority.

(b) Province of West Pakistan (Dissolution) `Order (P.O. 1 of 1970)‑‑‑

‑‑‑‑Art.12(1)(c)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Employee of Provincial Government serving on deputation in WAPDA‑‑‑Federal Service Tribunal, jurisdiction of‑‑‑Validity‑‑‑Such employee, under the provisions of Art.12(1)(c) of Province of West Pakistan (Dissolution) Order (P.O.1 of 1970) ceased to be the employee of Provincial Government and had become the employee of WAPDA amenable to the jurisdiction of Federal Service Tribunal.

(c) Province of West Pakistan (Dissolution) Order (P.O. 1 of 1970)‑‑‑

‑‑‑‑Art.12(1)(c)‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4(i), proviso (b)‑‑‑Employee of Provincial Government serving on deputation in WAPDA‑‑‑Provincial Service Tribunal, jurisdiction of‑‑‑Terms and conditions of service‑‑‑Refusal to grant higher grade‑‑‑Civil servant was employee of Provincial Government but had been serving in WAPDA since 1‑9‑1959, on deputation‑‑‑Authority refused to give him the higher grade‑‑­Appeal was filed before the Service Tribunal which was 'accepted‑‑­Contention the Authority was that the Provincial Service Tribunal had no jurisdiction to adjudicate the matter and it was only Federal Service Tribunal having the jurisdiction in the matter‑‑‑Validity‑‑‑Controversy in the case could not have been decided by the Provincial Service Tribunal for lack of jurisdiction‑‑‑Judgment of the Provincial Service Tribunal was set aside as the same had assumed the jurisdiction which did not vest in it‑‑‑Appeal was allowed and the case was remanded.

Salim Chaudhry, Advocate Supreme Court for Appellants.

Respondent in person.

Date of hearing: 24th May, 2000.

2001 S C M R 1243

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza

and Abdul Hameed Dogar, JJ

FEDERATION OF PAKISTAN, CHAMBERS OF

COMMERCE AND INDUSTRY‑‑‑‑Petitioner

versus

Messrs AL‑FAROOQ BUILDERS, BUILDERS

AND CONTRACTORS‑‑‑‑Respondent

Civil Petition for Leave to Appeal No.510‑K of 1999, decided on 26th May, 2000.

(On appeal from the judgment dated 26‑5‑1999 of High Court of Sindh, Karachi, passed in H. C. A. No. 52 of 1991).

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.20‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Arbitration‑‑­Jurisdiction of arbitrator‑‑‑Contractual liability‑‑:Respondents were awarded contract for construction by the petitioner‑‑‑Dispute about payment between the parties‑‑‑Application under S.20, Arbitration Act, 1940, was filed by the respondents for appointment of arbitrator‑‑‑Matter was referred to the sole arbitrator by the consent of the parties‑‑‑Both the parties had appeared before the arbitrator and led their evidence‑‑‑Arbitrator from pleadings of the parties had settled issues and recorded his findings thereon‑‑‑Contention of the petitioner was that the dispute settled by the arbitrator could not have been referred to him for settlement‑‑‑Validity‑‑‑Where the sole arbitrator was appointed with the consent of the petitioner, the matter could not be referred to any other person as the petitioner had waived his right‑‑‑Legal notice was served upon the petitioner and in response thereto the petitioner could settle the dispute with the respondents but instead of doing the same, the petitioner had agreed for the appointment of sole arbitrator‑‑‑Supreme Court disagreed to the contention that the sole arbitrator was not empowered to settle the dispute‑‑‑Respondents had issued a letter in which disputed rates of items were mentioned, as such the letter was received by the petitioner and at no stage validity, genuineness and contents of the same were questioned‑‑‑Letter must have been examined by the petitioners, when running bills of the respondents were passed‑‑‑Contents of the letter had already been accepted and acted upon‑‑‑Leave to appeal was refused.

Akhtar Ail Mahmood, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioner.

Samiuddin Sami, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondents.

Date of hearing: 26th May; 2000.

2001 S C M R 1248

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rashid Aziz Khan, JJ

Sheikh MUHAMMAD ASHRAF‑‑‑‑Petitioner

versus

Mst. BILQEES AKHTAR and 4 others‑‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1366‑L of 1999, decided on 22nd

(On appeal from the judgment dated 16‑7‑1999 of the Lahore High Court passed in Civil Revision No.2137 of 1988).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑‑S. 42‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for declaration‑‑‑Evacuee property, ejectment from‑‑‑Both the parties were claiming ownership rights in two adjacent evacuee properties transferred by Settlement Department‑‑‑Permanent Transfer Deeds had been issued in favour of allottees‑‑‑One of the properties was subsequently re‑numbered and re‑demarcated resultantly some of the portion of that property was included in the other property‑‑‑Petitioner claimed ownership in the disputed portion of the property re‑numbered‑‑‑Summary of orders of the Settlement Authorities was produced by the petitioner but copy of the order itself was not produced‑‑‑Title of the petitioner qua the disputed property was not accepted by Trial Court and such finding of Trial Court was upheld by Lower Appellate Court‑‑‑Petitioner assailed the judgment before High Court in revision, which was also dismissed‑‑‑Validity‑‑‑Mere recording of summary of orders allegedly made by the Settlement Authorities in Permanent Transfer Deeds would not be sufficient unless the orders were themselves produced in evidence in order to show that the same had been passed by the Competent Authority‑‑‑Petitioner neither acquired any right/title in the suit property, nor any right to occupy the same‑‑‑Courts below, thus, had rightly found that the petitioner had no independent right to claim possession over the property in dispute‑‑‑Leave to appeal was refused.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Sayed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Abdul Wahid Chaudhry, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents Nos. l to 3.

Date of hearing: 22nd June, 2000.

2001 S C M R 1254

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, CJ., Saiduzzaman Siddiqui

and Nasir Aslam Zahid, JJ

ABDUL MAJEED and another‑‑‑Petitioners

versus

GHULAM HAIDER and others‑‑‑Respondents

Civil Petition No. 70‑K of 1997, decided on 29th April, 1997.

(On appeal from the order dated 4‑4‑1997 of the Sindh High Court passed in Miscellaneous Appeal No.6/1997).

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Delay, condonation of‑‑‑Wrong advice of counsel ‑‑‑Ill-­advice even by a lawyer was not a ground for extension of time of limitation either under S.5 or S.14 of Limitation Act, 1908.

Chief Administrator of Auqaf v. Muhammad Ramzan PLD 1991 SC 102; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Raj Muhammad v. Mst. Chan Bibi 1984 SCMR 1068; Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Islam Din v. Allah Nawaz 1988 SCMR 2; Chief Administrator of Auqaf v. Pir Aftab Hussain 1989 SCMR 606 and Manzoor Hussain v. Muhammad Ali 1989 SCMR 1498 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Delay, condonation of‑‑‑Sufficient cause‑‑‑Wrong advice of counsel ‑‑‑Institution of appeal in wrong forum‑‑‑Effect‑‑‑Where the litigant and the counsel had acted with due care and caution and their conduct did not smack of negligence institution of appeal in wrong forum could constitute a sufficient cause within the meaning of S.5 of Limitation Act, 1908.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12 & 42‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑­Interim injunction, grant of‑‑‑Unregistered agreement to sell, preference over a registered sale‑deed‑‑‑Instead of filing suit for specific performance of agreement to sell, the plaintiff had filed the one for declaration‑‑‑Agreement was unregistered document whereas the defendant had registered sale‑deed in his favour‑‑‑Trial Court refused to issue interim injunction in favour of the plaintiff which order was maintained by Lower Appellate Court as well as by High Court‑‑Validity‑‑‑No prayer was made for specific performance of the agreement of sale and only declaration had been sought on the basis of unregistered document whereas sale‑deed in favour of the defendant was a registered one‑‑‑Order of Trial Court did not call for interference‑‑‑Leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Date of hearing: 29th April, 1997.

2001 S C M R 1258

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Iftikhar Muhammad Chaudhry, JJ

MUHAMMAD NASEER and others‑‑‑Petitioners

versus

MUSTAFA and others‑‑‑Respondents

Civil Petition No. 223‑Q of 1999, decided on 4th August, 2000.

(On appeal from the judgment dated 1‑3‑1999 of the High Court of Balochistan, Quetta passed in Civil Revision No.80 of 1998).

(a) Civil Procedure. Code (V of 1908)‑‑‑

‑‑‑‑Ss. 6 & 15‑‑‑Suit, institution of‑‑‑Pecuniary jurisdiction of Court‑‑­Scope‑‑‑Where during pendency of suit, the value‑ of subject‑matter was found to be more than pecuniary jurisdiction of the Court trying the suit, such Court would not be deprived from its pecuniary jurisdiction under S.6 of C.P.C. to try the suit.

Bidyadhar Bachar and others v. Manindra Nath Das an others AIR 1925 Cal. 1076; Mt. Urehan Kuer v. Mt. Kabutri AIR 1934 Pat. 204; A.K.A.C.T.V. Chidambaram Chethiar v'. A.L.P.R.S. Muthia Chettiar AIR 1937 Rang. 320 and Mahmood Akhtar and another v. Ch. Muhammad Hussain Naqshbandi, Additional District Judge, Rawalpindi and another 1986 CLC 1451 ref.

(b) Balochistan Civil Disputes (Shariat Application) Regulation, 1979‑‑‑

‑‑‑‑S.4‑‑‑Civil Procedure Code (V of 1908), Ss. 6 & 15‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Pecuniary jurisdiction‑‑‑Concurrent findings of fact by the Courts below‑‑‑Suit filed by the petitioner was dismissed by Trial Court and Lower Appellate Court dismissed the appeal‑‑‑Revision filed by the petitioner was also dismissed by High Court‑‑‑Contention of the petitioner was that the value of the suit was more than the pecuniary jurisdiction of Trial Court, hence, the Court was not competent to try the case‑‑‑Validity‑‑‑Petitioner lost the case on merits before Trial Court and Lower Appellate Court as well as before the High Court, therefore, they could not be allowed to turn around and take the plea of pecuniary jurisdiction‑‑‑Supreme Court declined to interfere in the concurrent findings of fact by the Courts below‑‑‑Leave to appeal was refused .

Basharatullah, Senior Advocate Supreme Court and Mehra K.N. Kohli, Advocate ‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th August, 2000.

2001 S C M R 1262

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Deedar Hussain Shah, JJ

MUNICIPAL CORPORATION, PESHAWAR through

Administrator and others‑‑‑Petitioners

versus

SHAKEEL HUSSAIN and others‑‑‑Respondents

Civil Petitions for Leave to Appeal No. 1898 to 1901 of 2000.

(On appeal from the judgment/order, dated 13‑9‑2000, of the Peshawar High Court, Peshawar, passed in W.P. Nos. 343, 347, 355 and 383 of 1999).

(a) North‑West Frontier Province Local Government Ordinance (IV of 1979)‑‑‑

‑‑‑‑S.79(4)‑‑‑Building plan, sanction of‑‑‑Failure to pass any order on application within sixty days‑‑‑Effect‑‑‑Where approval of a building plan is not accorded within the prescribed period, presumption would be that the same has been approved after it was submitted before the Authorities concerned.

(b) North‑West Frontier Province Local Government Ordinance (IV of 1979)‑‑‑

‑‑‑‑S.79(4)‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Building plan, sanction of‑‑­Authorities objected to the construction of the buildings raised by the respondents on the ground that the same were constructed without sanction of building plans‑‑‑Respondents had applied` such sanction and no order was within sixty days of the application‑‑‑Buildings were constructed after prescribed period‑‑‑Objection of the Authorities was assailed in Constitutional petition before High Court and the petitions were allowed‑‑­Contention of the Authorities was that the respondents had no legitimate cause of action and they approached the High Court with unclean hands‑‑­Validity‑‑‑Respondents had legitimate cause of action and they had approached the Court with clean hands supported by documents‑‑‑High Court while deciding the Constitutional petition had rightly perused and, examined the documents‑‑‑Judgment of High Court was based on proper appreciation of the facts, law and equity and the same did not call for any interference by Supreme Court‑‑‑Leave to appeal was refused.

Raza Khan v. Vice‑Chancellor, N.‑W.F.P. University ‑of Engineering and Technology, Peshawar 1982 SCMR 560; Abdur Rashid v. Pakistan and others 1969 SCMR 141; Saifullah Khan and others v. Settlement Commissioner and others 1982 SCMR 853; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Deen Carpets Ltd. v. Iqbal Ghuman, I.T.O. and another PLD 1989 SC 516 distinguished.

M. Sardar Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑ on‑Record for Petitioners.

M. Jamil Khan, Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑ on‑Record for Respondents.

Date of hearing: 26th February, 2001.

2001 S C M R 1270

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

SHAMIM HAIDER KAZMI‑‑‑Petitioner

versus

PRESIDING OFFICER, IVTH SINDH LABOUR COURT, KARACHI and 4 others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 301‑K of 2000, decided on 20th July, 2000.

(On appeal from the judgment dated 29‑5‑2000 of the Sindh High Court, Karachi, passed in Constitutional Petition No.D‑571 of 1996).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Findings of facts‑‑‑Interference by Supreme Court‑‑‑Scope‑‑‑Only where the findings of Tribunals of exclusive jurisdiction are based on insufficient evidence, misreading of evidence, non­-consideration of material evidence, erroneous assumption of facts, patent errors of law or abuse of jurisdiction, same can be interfered by Supreme Court.

1990 SCMR 837; PLD 1978 Quetta 17 and PLJ 1978 Quetta 72 rel.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Industrial dispute‑‑‑Dismissal from service‑‑‑Concurrent findings of fact by the Courts below‑‑‑Interference of Supreme Court‑‑‑Order of dismissal from service was assailed before Labour Court but without any success‑‑‑Order of Labour Court was upheld by Labour Appellate Tribunal and High Court‑‑‑Validity‑‑‑Findings of Labour Appellate Tribunal were neither unjustified nor arbitrary and had rightly been kept intact by High Court‑‑‑Judgment of High Court was free from any legal infirmity and did not call for interference of Supreme Court‑‑‑Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 20th July, 2000.

2001 S C M R 1272

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

SHABBIR AHMAD‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and another‑‑‑Respondents

Civil Petition No.318‑K of 2000, decided on 16th February, 2001.

(On appeal from the judgment dated 30‑3‑2000 passed in Constitutional Petition No.D‑2311/1997 of the High Court of Sindh, Karachi).

(a) Sindh Public Service Commission Act (XI of 1989)‑‑‑

‑‑‑‑Ss. 4 & 6‑‑‑Chairman or Member of the Commission, removal of‑‑­Person once appointed as Member or Chairman of the Commission could not be removed except in accordance with the provisions of S.6 of Sindh Public Service Commission Act, 1989.

(b) Sindh Public Service Commission Act (XI of 1989)‑‑‑

‑‑‑‑Ss. 4, 6 & 5‑A [as amended by Sindh Public Service Commission (Amendment) Ordinance (I of 1998)]‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Removal of Member of Public Service Commission‑‑­Petitioner was appointed as Member of the Commission for a period of three years and joined his service‑‑‑Petitioner, by virtue of subsequent notice was removed from service under S.6 of Sindh Public Service Commission Act, 1989‑‑‑Contention of the petitioner was that the notification of his removal from service was illegal and without lawful authority‑‑‑Validity‑‑‑Order of appointment issued by the Authorities had already taken legal effect and certain rights were created in favour of the petitioner‑‑‑Notification of withdrawal of the earlier notification of appointment of the petitioner was without lawful authority and of no legal effect‑‑‑Since the period of tenure of the petitioner had already expired, he could not be allowed the relief of reinstatement‑‑‑Supreme Court however observed that the petitioner might seek any other legal remedy available to him according to law if so advised‑‑­Petition for leave to appeal was disposed of accordingly.

Hitachi Limited v. Rupali Polyester and others 1998 SCMR 16108; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973; Ch. Mazhar Ali Gill v. The District Magistrate, Faisalabad and others 1997 CLC 1811 and Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 ref.

Mazhar Ali B. Chohan, Advocate, Supreme Court for Petitioner.

Suleman Habibullah, Additional A.‑G. Sindh for Respondents.

Date of hearing: 21st December, 2000.

2001 S C M R 1277

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Deedar Hussain Shah, JJ

KARACHI DEVELOPMENT AUTHORITY through Secretary‑‑‑Petitioner

versus

Messrs MAKHDOOM BILAWAL COOPERATIVE HOUSING

SOCIETY and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.553‑K of 2000, decided on 12th December, 2000.

(On appeal from the judgment/order, dated, 17‑7‑2000, of the High Court of Sindh, Karachi, passed in C.P. Nos.D‑419 of 1993, 665 of 1993, D/937 of 1991 and D‑279 of 1994, respectively).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2) & OXXIII, R.3‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Compromise decree, setting aside of‑‑‑Plea of fraud and misrepresentation‑‑‑Constitutional petition was disposed of ‑by the High Court in the light of compromise arrived at by the parties‑‑‑Petitioner‑Authorities, subsequently filed application under S.12(2), C.P.C.‑‑‑Such application was dismissed by High Court and High Court appeal 'against the same was also dismissed‑‑­Validity‑‑‑High Court had considered the entire case in its true perspective‑‑‑ Application under S.12(2), C.P.C. was dismissed by High Court with convincing, plausible, logical reasons, based on well‑settled principles of law and after proper appraisal of evidence including documents‑‑‑Supreme Court declined to interfere in the judgment passed by High Court.

Ch. Muhammad Jamil, Advocate Supreme Court and Muzaffar Ali Khan, Advocate‑on‑record for Petitioner.

Mushtaq Memon, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 12th December, 2000.

2001 S C M R 1282

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza

and Abdul Hameed Dogar, JJ

Mian MUHAMMAD MOHSIN RAZA‑‑‑Petitioner

versus

Miss RIFAT SHEIKH and others‑‑‑Respondents

Civil Petition No.220‑K of 1999, decided on 6th December, 2000.

(On appeal from the judgment/order, dated 1‑2‑1999 passed by Sindh Service Tribunal, Karachi in Service Appeal No. 13 of 1993).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Terms and conditions of service‑‑‑Seniority list‑‑‑Adverse remarks in Annual Confidential Report‑‑‑Civil servant was ignored for promotion on account of such remarks and, thereafter, within four months, on the same record, he was promoted‑‑‑Grievance of the civil servant was that he was shown junior to the others just on the basis of the Report‑‑­Contention by the civil servant was that to absence of any material available on record in any shape, 'adverse remarks in the Annual Confidential Report could not be taken into consideration‑‑‑Leave to appeal was granted by Supreme Court to consider the contention raised by the civil servant.

Rehanul Hasan Farooqui, Advocate Supreme Court and K.A. Wahab, Advocate‑ on‑Record for Petitioner.

Suleman Habibullah, Additional A.‑G., Sindh for Respondents.

Date of hearing: 6th December, 2000.

2001 S C M R 1283

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Javed Iqbal, JJ

REHMAT ALI ‑‑‑Petitioner

versus

MUHAMMAD RAMZAN through Legal Heirs‑‑‑Respondent.

Civil Appeal No.711 of 1995, decided on 12th February, 2001.

(On appeal from the judgment/order of the Lahore High Court, Multan Bench, Multan, dated 28‑2‑1995, passed in Review Application No.6 of 1995 and dated 1‑2‑1995 passed in Writ Petition 543 of 1984).

Colonization of Government Lands (Punjab) Act (IV of 1912)‑‑‑

‑‑‑‑S.30(2)‑‑‑Allotment of land‑‑‑Cancellation‑‑‑Land in question was reserved for permanent settlement of the Islamabad oustees‑‑‑Predecessor‑in­-interest of the respondents was allotted the same who had paid the entire price and the Deed of Conveyance was also registered in his favour‑‑­Appellant assailed the allotment on the ground that the land had already been allotted to him under the Grow More Food Scheme which allotment was cancelled by the Board of Revenue under the provisions of S.30(2) of Colonization of Government Lands (Punjab) Act, 1912‑‑‑High Court in exercise of Constitutional jurisdiction set aside the order of Board of Revenue and the allotment was restored in favour of the respondents‑‑­Validity‑‑‑Record did not show that the land in question was ever allotted to the appellant under the Grow More Food Scheme‑‑‑Respondents had been dragged unnecessarily by the appellant in the litigation‑‑‑Judgment passed by High Court was based on the accepted principles and there was no irregularity or illegality therein requiring interference by Supreme Court.

Habib Khan v. Additional Settlement Commissioner, Multan and others 1980 SCMR 84; Abdul Haque and another v. Khan Muqarrab Khan and others 1981 SCMR 691 and The State v. Malik Jehangir Khan PLD 1979 Rev. 1 (Punjab) distinguished.

Mian Saeed‑ur‑Rehman Furrukh, Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record (absent) for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos. l to 6.

Date of hearing: 12th February, 2001.

2001 S C M R 1287

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhagwan Das, JJ

Syed JAN MUHAMMAD and another‑‑‑Appellants

versus

Syed ABDUL KHAIR‑‑‑Respondent

Civil Appeal No.690 of 1997, decided on 10th January, 2001.

(On appeal from the judgment, dated 6‑8‑1996 of the High‑ Court of Balochistan, Quetta, passed in F.A.O. No.29 of 1996).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑S.13‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bona fide personal need of landlord‑-‑Leave to appeal was granted by Supreme Court to consider, whether High Court had not correctly appreciated the evidence in disallowing the ejectment on the ground of personal need by the landlord.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(3)(a)‑‑‑Bona fide personal need of landlord for his appearance of son of landlord in witness‑box‑‑‑Effect‑‑‑Such appearance is not a sine qua non for grant of relief to landlord of the plea of his bona fide requirement for the use by his son/sons.

M. Muhammad Sharif v. M.S. Sultan 1981 SCMR 844 and Muhammad Nasar v. Muhammad Arshad and another 1981 SCMR 894 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(3)(a)‑‑‑Bona fide personal need of landlord ‑‑‑Scope‑‑‑Where landlord requires the residential building in good faith for his own occupation or for the occupation of any of his children, landlord is permitted to apply under S.13(3)(a) of West Pakistan Urban Rent Restriction Ordinance, 1959.

Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(3)(a)‑‑‑Bona fide personal need of landlord‑‑‑Enhancement of rent, plea of ‑‑‑Effect‑‑‑Ejectment application was filed by landlord on the ground of personal requirement of the premises for the use of his son‑‑‑Tenant resisted the application on the ground that the landlord only wanted to increase the rent of the premises‑‑‑Rent Controller allowed the application while High Court in exercise of appellate jurisdiction dismissed the same‑‑ Validity‑‑‑No support was available on the record for the assertion or allegation made on behalf of the tenant that the landlord merely wanted to enhance the rent of the premises‑‑‑Where it was found that the landlord had succeeded in establishing his bona fide personal need, even then the plea of the tenant did not militate against the claim of the landlord‑‑‑Judgment of High Court was set aside and that of Rent Controller restored.

M. Shakil Ahmad, Advocate Supreme Court for Appellants.

M.K.N. Kohli, Advocate‑ on‑Record (absent) for Respondent.

Date of hearing: 10th January, 2001.

2001 S C M R 1291

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

SABIR MEHMUD BHATTI ‑‑‑ Petitioner

versus

GENERAL MANAGER, PEARL CONTINENTAL HOTEL

and another‑‑‑Respondents

Civil Petition No.252‑K of 2000, decided on 5th September, 2000.

(On Appeal from the judgment of the High Court of Sindh, dated 3‑4‑2000 passed in C.P.No.D‑1228 of 1997).

Industrial Relations Ordinance (XXHI of 1969)‑‑‑‑

‑‑‑‑S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Grievance petition‑‑‑ Maintainability‑‑‑Dismissal from service‑‑‑Labour Court, jurisdiction of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Petitioner was working on post of Inventory Controller and as Assistant Purchase Manager and was responsible for purchase of requirements of the hotel‑‑­Labour Appellate Tribunal as well as the High Court concluded that the petitioner was not a workman and his petition under S.25‑A of Industrial Relations Ordinance, 1969, filed before the Labour Court was not maintainable‑‑‑Validity‑‑‑No misreading or non‑reading of the evidence by the Appellate Tribunal as well as the High Court was found and there was no jurisdictional error in the judgments‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

Obaidur Rehman, Advocate Supreme Court and Ahmadullah Farooqui, Advocate‑ on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th September, 2000.

2001 S C M R 1294

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Deedar Hussain Shah, JJ

Mst. GHULAM FATIMA through Legal Heirs‑‑‑Petitioner

versus

GHOUS MUHAMMAD and 6 others‑‑‑Respondents

Civil Petition No.267 of 2001, decided on 21st February, 2001.

(On Appeal from the judgment dated 10‑1‑2001 passed by Lahore High Court, Lahore in R.S.A.No.118 of 1984).

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑-‑S.21‑‑‑Colonization of Government Lands (Punjab) Act (V of 1912), S.4 ‑‑‑Pre‑emption right; exercise of‑‑‑Colony land‑‑‑Suit land was situated in area to which the Colonization of Government Lands (Punjab) Act, 1912, was applicable and Notification dated 28‑2‑1944 had exempted the sale from pre‑emption ‑‑‑Pre‑emption suit against such land was decreed by Trial Court but Lower Appellate Court dismissed the same on the ground that the land was not pre‑emptible‑‑‑Judgment of Lower Appellate Court was upheld by High Court‑‑‑Validity‑‑‑Vendor had acquired proprietary rights in the land in dispute in the year 1930‑31‑‑‑Leave to appeal was granted by Supreme Court to consider the impact of Notification dated 28‑2‑1944 which was repealed in year, 1973 but the same was applicable at the time when the suit was filed by the pre‑emptor.

Sher Muhammad and others v. Abdul Khaliq and others 1968 SCMR 320; Noor Muhammad through his Legal Heirs v. Muhammad Tufail and others 1991 SCMR 512; Babu and others v. Jalal Din and another PLD 1992 SC 102; Abdullah v. Muhammad Hayat 1994 SCMR 90 and Mst. Rehmat Bibi, and others v. Nathe Khan and others PLD 1969 SC 197 ref.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st February, 2001.

2001 S C M R 1301

[Supreme Court Of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

Mst. Hajiyani AYESHA BAI‑‑‑Appellant

versus

ZAHID HUSSAIN‑ ‑Respondent

Civil Appeal No. 1198‑K of 1998, decided on 2nd February, 2001.

(On Appeal from judgment dated 12-1‑1998 passed by Sindh High Court, Karachi in F.R.A. No.58 of 1991).

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S‑15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bona fide personal need of landlady‑‑‑Premises not mutated in the name of land-lady‑‑‑Effect‑‑­Rent Controller dismissed the ejectment application with the observations that subject property was not mutated in the name of the landlady to give her cover of law; son of the landlady had failed to prove that he was jobless and was plying taxi through driver and that existence of shops with Bungalow of the landlady was suppressed by her‑‑‑Leave to appeal was granted by Supreme Court to examine the observations made by the Rent Controller.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑Ejectment application‑‑‑Maintainability‑‑‑Mutation not recorded in favour of landlady‑‑‑Effect‑‑‑Where the tenant had admitted the applicant as his landlady, the premises not having been mutated in the name of the landlady could not be considered a ground to deny relief to her ‑‑‑Ejectment application was maintainable in circumstances.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Bona fide personal need of landlady‑‑‑Ground of unemployment of son of the landlady‑‑‑By plying of taxi through driver, the son of the landlady was not personally engaged in the business, same being not a profession adopted by the son.

(d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)‑‑‑Bona fide personal need of landlady‑‑‑Non‑disclosure of details of shops owned by the landlady in eviction application‑‑‑Effect‑‑‑Such disclosure in the eviction application by the landlady was not required under the provisions of S.15(2) of Sindh Rented Premises Ordinance, 1979.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)(vii)‑‑‑Bona fide personal need of landlady of her son‑‑‑Scope‑‑­Obligation upon the landlady, under the provisions of S.15(2)(vii) of Sindh Rented Premises Ordinance, 1979, was only to prove good faith for her own occupation or for the occupation or use of her spouse or children.

(f) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)‑‑‑Bona fide personal need of landlady‑‑‑Concurrent findings of fact by the Courts below‑‑‑Premises was required by the landlady for the use of her son‑‑‑Contention of the tenant was that another shop owned by the landlady attached to her bungalow was let out during the ejectment proceedings‑‑‑Rent Controller dismissed the eviction application and the order of Rent Controller was upheld by High Court‑‑‑Validity‑‑‑Nothing was on record to show as to when the shop attached was given on rent, therefore, in absence of such proof the Courts below had wrongly non‑suited the landlady‑‑‑Where the concurrent findings of fact by the Courts below were based on misreading of relevant provisions of law as well as misreading of the evidence on record, such findings were set aside by Supreme Court and eviction application was allowed.

(g) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15(2)‑‑‑Bona fide personal need of landlord‑‑‑Statement before Income Tax Department‑‑‑Evidentiary value‑‑‑Such statement does not constitute a strong reason to disbelieve the plea of the landlady that the premises was required by her for use and occupation of her son.

Qamar‑ud‑Din through his Legal Heirs v. Hakeem Muhammad Khan 1988 SCMR 819; Haroon Kasim and another v. Azam Suleman Madha PLD 1990 SC 394; Sheikh Muhammad Yousif v. District Judge, Rawalpindi and 2 others 1987 SCMR 307; Latif Ahmed v. Mst. Farrukh Sultana 1996 SCMR 1233 and Muhammad Atiq v. Muhammad Hanif Khan 1996 SCMR. 1260 ref.

Imran Ahmed, Advocate Supreme Court for Appellant.

M. Aqil Awan, Advocate Supreme Court for Respondents.

Date of hearing: 24th January, 2001.

2001 S C M R 1307

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Messrs SHAHEEN AIRPORT SERVICES‑‑‑Petitioner

versus

NAFEES‑UL‑HASSAN SIDDIQUI and another‑‑‑Respondents

Civil Petition No.328 of 2000, decided on 28th July, 2000.

(On Appeal from the judgment of the High Court of Sindh, Karachi, dated 27‑3‑2000 passed in Constitution Petition No.229 of 1998).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.l85‑‑‑Appeal to Supreme Court‑‑‑Raising of new plea‑‑‑Scope‑‑New plea cannot be allowed to be raised before Supreme Court.

[Case‑law referred].

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

‑‑‑‑Ss.2(xxviii) & 25‑A‑‑‑Constitution of Pakistan (1973), Art.185 (3)‑‑­"Workman"‑‑‑ Definition‑‑‑Dismissal from service‑‑‑Grievance petition‑‑­Employee whether falling within the definition of 'workman'‑‑­Determination‑‑‑Employee was dismissed by the employer on the ground of inefficiency and poor performance‑‑‑Labour Court dismissed the grievance petition of the employee, considering him not falling within the definition of 'workman'‑‑‑Appeal before Labour Appellate Tribunal was allowed and the order was upheld by the High Court‑‑‑Contention by the employer was that the employee was not a 'workman'‑‑‑Validity‑‑‑Job description given by the employee was never challenged and the same had made it clear that he was performing manual work‑‑‑Labour Appellate Tribunal and High Court had correctly determined that the employee was not termed as Manager or Supervisor taking him out from the definition of 'workman'‑‑‑No illegality or irregularity had been committed by the forums below and the order passed by High Court was free from any legal infirmity‑‑‑Supreme Court declined to interfere with the order of High Court‑‑‑Leave to appeal was refused.

PLD 1986 SC 103; 1998 SCMR 644; Abdul Razaq v. Ihsan Sons Ltd. 1992 SCMR 505 and Rehmat Ali v. The Security Paper Mills Ltd. and another PLD 1982 Kar. 913 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Scope‑‑‑Findings of fact, review of ‑‑‑Substituting findings by Supreme Court in place of those arrived at by lower forums‑‑‑Scope‑‑‑Supreme Court could not review findings of fact reached by inferior Court or Tribunal, even if the same were erroneous‑‑­Where the Legislature did not choose to confer a right of appeal against the decision, the review by Supreme Court would be defeating its purpose and policy‑‑‑Supreme Court could not rehear the case on evidence and substitute its own findings, unless exercise of power by Tribunal was in violation of some provisions of law or in excess of jurisdiction or the same suffered from failure to exercise jurisdiction.

PLD 1981SC S22 and 1982 SCMR 684 ref.

Qamarul Islam Abbas, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioners.

Respondent No. l in person.

Date of hearing; 28th July, 2000.

2001 S C M R1311

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. C.J. and Nasir Aslam Zahid, J

USMAN and others‑‑‑Petitioners

versus

Haji ABDUL SATTAR and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.217‑K of 1995, decided on 3rd March, 1997.

(On appeal from the order dated 20‑4‑1995 of the High Court of Sindh, Karachi, passed in F.R.A. No.210 of 1995).

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

‑‑‑‑S. 13‑A‑‑‑Sindh Rented Premises Ordinance (XVII of 1979), S. 18‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant‑‑‑Failure to give notice regarding change of ownership‑‑‑Tenant was ejected on the ground of default without first proving the issuance of the mandatory notice‑‑‑Order of ejectment passed by the Rent Controller was upheld by High Court‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether on basis of the record, the two Courts below were justified in ordering the ejectment of the tenant on the ground of default.

M.G. Dastgir, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate ‑on‑Record for Petitioners.

M.M. Baig, Advocate Supreme Court and M.A.I. Qami, Advocate­-on‑Record for Respondents Nos. l to 3.

Date of hearing: 3rd March, 1997.

2001 S C M R 1312

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Wajihuddin Ahmed, JJ

FARRUKH JAMAL‑‑‑Petitioner

versus

IQBAL AHMAD‑‑‑Respondent

Civil Petition No. 502‑K of 1998, decided on 31st July, 1998.

(On appeal from the. judgment dated 25‑5‑1998 of the Sindh High Court passed in F.R.A. No. 367 of 1997).

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

‑‑‑‑S: 15‑‑‑Constitution of Pakistan (1973), Art. 185(3) ‑‑‑ Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Bona fide personal need of landlord‑‑­Tenant during the proceedings had proved that rent of the disputed months was being deposited in the Court‑‑‑First floor of the premises was lying vacant and the landlord had purchased apartment wherein he had shifted his residence‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether High Court was correct in confirming the decision of Rent Controller by holding that on the basis of the evidence on record default had been committed by the tenant and that the premises in question was required in good faith by the landlord.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 31st July, 1998.

2001S C M R 1314

[Supreme Court of Pakistan]

Present: Mamoon Kazi and Wajihuddin Ahmed, JJ

MUHAMMAD AKHTAR SALEEM and others‑‑‑Petitioners

versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN

and another ‑‑‑Respondents

Civil Petitions Nos.297‑K and 476-K of 1998, decided on 15th February, 1998.

(On appeal from the judgment dated 13‑2‑1998 of the High Court of Sindh, Karachi in F.R.A. Nos.96 and 124 of 1997).

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

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Fixation of fair rent‑‑‑Evidential facts not taken into consideration‑‑‑Effect‑‑‑Rent of the premises was raised by Rent Controller to a sum of Rs.4,000 per month, while High Court in exercise of its appellate jurisdiction had modified the order of the Rent Controller and fixed the monthly rent as Rs.2,500 per month‑‑‑Validity‑‑‑Held, there were several aspects to S. 8 of Sindh Rented Premises. Ordinance, 1979, and each, though in varying degree weighed for consideration in assessing fixation of fair rent‑‑‑Some of the such aspects were not found on the record and the same could not be addressed by recording of further evidence‑‑‑High Court had recorded its conclusion without having due recourse to the evidential facts ‑‑‑Supreme Court with the consent of the parties converted the petition for leave to appeal into appeal and set aside the order of High Court and case was remanded High Court for decision afresh.

Abdul Rahim Kazi, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate‑ on‑Record for Petitioner (in C.P. 297‑K of 1998 and for Respondent (in C.P. No. 476‑K of 1998).

Siddique Mirza, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record .for Petitioner (in C.Ps. Nos.476‑K of 1998 and for Respondent (in C.P. No.297‑K of 1998).

Date of hearing: 15th July, 1998.

2001 S C M R 1316

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

ABDUL HAMEED‑‑‑Petitioner

versus

MEHMOOD and others‑-‑Respondents

Civil Petition No.389‑K of 1998, decided on 27th January, 1998.

(On appeal from the order dated 5‑12‑1997 of the Sindh High Court passed in H.C.A. No. 26 of 1993).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Decree, setting aside of‑‑‑Plea of fraud, misrepresentation and want of jurisdiction‑‑­Application under S. 12(2), C.P.C. by the petitioner was dismissed by High Court on the ground that mere mentioning of the words "fraud, misrepresentation and want of jurisdiction in passing the judgment and decree" were not sufficient‑‑‑Validity‑‑‑No infirmity or lacuna having been found in the judgment to call for interference by the Supreme Court, leave to appeal was refused.

Muzaffarul Haq, Advocate Supreme Court with Faizanul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th January 1998.

2001 S C M R 1318

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

COTTON EXPORT CORPORATION OF PAKISTAN

through Secretary and 3 others‑‑‑Petitioners

versus

F.G. ALVI and others‑‑‑Respondents

Civil Petition No.488‑K of 2000, decided on 1st December, 2000.

(On appeal from the judgment/order dated 19‑7‑2000 passed by Federal Service Tribunal, Islamabad, in Appeal No.925‑K of 1998).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 6‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal to Service Tribunal ‑‑‑Limitation‑‑‑Condonation of delay‑‑‑Employee of Cotton Corporation‑‑‑Termination of service was challenged by a civil suit‑‑‑Abatement of suit‑‑-Filing of departmental appeal after abatement of the suit or proceedings under the provisions bf S.6 of Service Tribunals Act, 1973‑‑‑During the pendency of the suit, S.2‑A was added to Service Tribunals Act, 1973, and the proceedings before Civil Court were abated‑‑‑Employee filed appeal before the Authorities and after the rejection of the same, appeal to Service Tribunal was filed‑‑‑Appeal to Service Tribunal was delayed by nine months but the delay was condoned by Service Tribunal on the ground that the period was consumed in filing departmental appeal‑‑‑Employee was reinstated in service by Service Tribunal‑‑‑Contention by the Cotton Corporation was that there was no statutory requirement for filing of departmental appeal in a case where the suit had abated and that on account of introduction of S. 2‑A in Service Tribunals Act, 1973, right of filing of appeal before the Tribunal was available but the same was filed with inordinate delay and the condonation of delay was not in accordance with law‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider the contention by the employer Corporation.

M.L. Shahani, Advocate Supreme Court and K.A.. Wahab Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 1st December, 2000.

2001 S C M R 1320

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

ADMINISTRATOR, DISTRICT COUNCIL, LARKANA and another‑‑‑Petitioners versus

GHULAB KHAN and 5 others‑‑‑Respondents

Civil Petition No. 167‑K of 2000, decided on 10th July, 2000.

(On appeal from the order dated 10‑3‑2000 of the High Court of Sindh, Circuit Court, Larkana, passed in C.P. No.D‑24 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3) & 199‑‑‑Constitutional petition before High Court under Art. 199 of the Constitution‑‑‑Salaries of employees, withholding of‑‑‑High Court, in exercise of Constitutional jurisdiction, directed the Authorities to pay the salaries of the employees‑‑‑Contention by the Authorities was that the appointments of employees was illegal and made in violation of relevant recruitment rules‑‑‑Validity‑‑‑Salaries could not be withheld on such ground‑‑‑Action should have been initiated against those who were sitting at the helm of affairs for such irregularities‑‑‑Employees could not be held responsible for the same‑‑‑Where substantial justice had been done, the same could not be disturbed on mere technicalities‑‑‑Direction to withhold the salaries of the employees suffered from inherent vice, same was void ab initio and could not be given effect to‑‑‑Leave to appeal was refused.

(b) Administration of justice‑‑‑

‑‑‑‑Legal formalities‑‑‑Scope‑‑‑Principal object behind all such formalities is to safeguard the paramount interest of justice‑‑‑Legal precepts are 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.

2000 SCMR 556 ref.

Mazhar Ali B. Chohan, Advocate Supreme Court and Ahmedullah Faruqui, Advocate‑ on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 10th July, 2000

2001 S C M R 1322

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

GULAB ALI SAHITO‑‑‑Petitioner

versus

DIRECTOR‑GENERAL INTELLIGENCE BUREAU, ISLAMABAD and 2 others‑‑‑Respondents

Civil Petition No. 464‑K of 2000, decided on 6th December, 2000.

(On appeal from the judgment/order dated 22‑5‑2000 passed by Federal Service Tribunal in Appeal No. 1060‑K of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Terms and conditions of service ‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Final order was passed on 5‑7‑1997 and communicated to the civil servant on 30‑9‑1999‑‑­Appeal before Service Tribunal was preferred on 28‑10‑1999‑‑‑Validity‑‑­Such appeal was within 30 days and the same was within time‑‑‑Petition for leave to appeal was converted into appeal and the same was allowed‑‑‑Case was remanded to the Service Tribunal for decision on merits.

Ahmadullah Faruqi, Advocate‑on‑Record for Petitioner.

S. Zaki Muhammad, Deputy Attorney General for Respondents.

Date of hearing: 6th December, 2000.

2001 S C M R 1323

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

FAIZ‑UL‑HASSAN‑‑‑Petitioner

versus

Mst. JAN SULTAN and 2 others‑‑‑Respondents

Civil Petition No. 1655 of 2000, decided on 29th January, 2001 (On appeal from the order/judgment dated 2‑10‑2000 of the Peshawar High Court, Peshawar, passed in W.P. No.272 of 2000).

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dower amount, recovery of‑‑‑Setting aside ex parte decree against deposit of decretal amount as security in cash‑‑‑Suit of the wife was decreed by the Family Court ex parte against the husband‑‑‑Husband filed application for setting aside of the decree after two years of passing of the same‑‑‑Family Court dismissed the application but the same was allowed by Lower Appellate Court with a condition to deposit the decretal amount as security in cash and the decree was set aside‑‑‑Husband did not deposit the amount and the suit was again decreed against him‑‑‑Decree passed against the husband was assailed in Constitutional petition Which was dismissed by the High Court ‑‑‑Validity‑‑­Husband completely ignored to challen the order of deposit of decretal amount passed by Lower Appellate Court before the same Court for review or before High Court to Constitutional petition and thus by implication the husband had accepted the order of Lower Appellate Court and went to Family Court without demur‑‑‑Where the husband had participated in the proceedings but did not file written statement as directed by Lower Appellate Court, the Family Court rightly struck off the defence of husband and passed the decree for the recovery of dower amount‑‑‑Both the Courts below and the High Court were justified to have passed order for the deposit of amount of dower before remanding the suit to Family Court for trial‑‑‑Leave to appeal was refused by Supreme Court.

Abdullah v. Mst. Zubaida Begum and others 1988 CLC 163 1 distinguished.

Muhammad Farid Khan v. The Civil Judge, Abbottabad 1989 CLC 1630 ref.

Muhammad Ikram Chaudhry, Advocate Supreme Court instructed by M.S. Khattak, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th January, 2001.

2001 S C M R 1327

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

SIBTE AKHTAR‑‑‑Petitioner

versus

PAKISAN‑INTERNATIONAL AIRLINES CORPORATION

through Managing Director‑‑‑Respondent

Civil Petition No. 361‑K of 2000, decided on 29th November, 2000.

(On appeal from the judgment/order dated 23‑5‑2000 passed by Federal Service Tribunal, Islamabad, in Appeal No. 1058‑K of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑----S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal ‑‑‑Terms and conditions of service‑‑‑Filing of appeal nine years after retirement ‑‑‑Dispute was with regard to the Group in which the employee was retired‑‑‑Employee claimed to be retired in Group‑VII instead of Group‑VI‑‑‑Representation before the Authorities as well as the appeal before Service Tribunal were dismissed ‑‑‑Validity‑‑‑Employee slept over his said right for nine years and thereafter started agitating for the same‑‑­Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Leave to appeal was refused.

K.M. Nadeem, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate ‑on‑Record for Petitioner.

Qamar Abbas, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondent.

Date of hearing: 29th November, 2000.

2001 S C M R 1328

[Supreme Court of Pakistan]

Deedar Hussain Shah, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUHAMMAD SHAFIQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 14 of 1998, decided on 6th February, 2001

(On appeal from the judgment/order dated 6‑1‑1997, of the High Court of Balochistan, Quetta, passed in Murder Reference No.6 of 1996, Criminal Appeal No.77 of 1996 and Criminal Miscellaneous Quashment No. 14 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302, 324 & 337‑F(v)‑‑‑Appraisal of evidence‑‑‑Accused had been arrested having received injuries in the incident with Kalashnikov in his hand which 'had matched with the crime empties‑‑‑Motive was available to the accused for commission of the crime‑‑‑Attack initiated by the accused and his companions was pre‑planned, well thought and premeditated and he could not be absolved from the criminal liability on the ground that there was no common intention‑‑‑Four persons had been killed in a very brutal manner‑‑­No mitigating circumstance was available in favour of accused ‑‑‑Judgments of Trial Court and High Court were entirely based on proper appreciation of evidence and were within the four corners of the principles laid down for safe administration of criminal justice‑‑‑Appeal of accused was dismissed in circumstances.

Kh. Sultan Ahmad, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for the State.

M. Zafar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate­-on‑Record for the Complainant.

Date of hearing: 6th February, 2001.

2001 S C M R 1334

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah, Hamid Ali Mirza

and Tanvir Ahmed Khan, JJ

IMTIAZ AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.409 of 1999, decided on 7th February, 2001.

(On appeal from the judgment dated 9‑10‑1996 of Lahore High Court, Lahore in Criminal Appeal No.285 of 1992, Criminal Revision No. 240 of 1992 and Murder Reference No. 175 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether in the circumstances of the case when the motive for the murder as alleged by the prosecution was not believed by the Courts below and the Court was not taken into confidence with regard to the motive, extreme penalty of death awarded to accused was justified.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302 & 449‑‑‑Appraisal of evidence‑‑‑Accused was caught at the spot and the rifle used in the crime was secured which was found by the Ballistic Expert to have fired the crime empty‑‑‑Reliable, satisfactory and unimpeachable ocular evidence connecting the accused with the commission of the crime being available, weakness of motive could not be a mitigating circumstance for awarding lesser punishment‑‑‑Accused could not be expected to carry a rifle to the house of the complainant at the odd hours of the night for the purpose of settlement‑‑‑Failure of prosecution to mention the injuries found inflicted on the person of the accused was not, by itself, a sufficient ground for withholding capital punishment, as the same might not have been noticed by the complainant or other witnesses in view of the fatal incident having taken place in the family‑‑‑Convictions and sentences of accused were upheld in circumstances.

Muhammad Nawaz Khan v. Mubarak Ali 2000 SCMR 1582; Muhammad Yaqoob v. State 1999 SCMR 1138; Bilal Ahmad v. State 1999 SCMR 869; Naubahar v. State 1999 SCMR 637; Woolmingtin's case 1935 AC 462; Talib Hussain v. State 1995 SCMR 1776; State v. Sobharo 1993 SCMR 585; State v. Rab Nawaz PLD 1974 SC 87 and Ghulam Muhammad v. Allah Yar PLD 1976 SC 241 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Motive‑‑‑Allegations and proof of motive are not legal requirements for awarding maximum penalty of death in a murder case when the prosecution has proved the guilt of the accused beyond reasonable doubt‑‑‑Decision of the case must not be taken in relation to case of accused, but must rest on the examination of entire evidence.

Woolmingtin's case 1935 AC 462 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Weakness of motive would not come in the way of the prosecution case in the presence of strong and reliable evidence.

Talib Hussain v. State 1995 SCMR 1776 and State v. Sobharo 1993 SCMR 585 ref.

(e) Precedent‑‑‑--

‑‑‑‑Each criminal case is to be decided on its own peculiar facts and circumstances‑‑‑Rule laid down in the earlier cases cannot be applied in subsequent cases in the omnibus manner.

Muhammad Nawaz Khan v. Mubarak Ali 2000 SCMR 1582; State v. Rab Nawaz PLD 1974 SC 87 and Ghulam Muhammad v. Allah Yar PLD 1976 SC 241 ref.

(f) Administration of justice‑‑‑

‑‑‑‑Principles‑‑‑Appreciation of evidence‑‑‑While dispensing criminal justice, decision of the case must not be taken in relation to accused's case but must visit on the examination of entire evidence.

(g) Criminal trial‑‑‑

‑‑‑‑Sentence‑‑‑Motive‑‑‑Allegations and proof of motive are not legal requirements for awarding maximum penalty of death in a murder case when the prosecution has proved the guilt of the accused beyond reasonable doubt‑‑‑Decision of the case must not be taken in relation to case of accused, but must rest on the examination of entire evidence.

Woolmingtin's case 1935 AC 462 ref.

(h) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Weakness of motive would not come in the way of the prosecution case in the presence of strong and reliable evidence.

State 1995 SCMR 1776 and State v. Sobharo 1993 Aftab Farrukh, Senior Advocate Supreme Court for Appellant. Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 7th February, 2001.

2001 S C M R 1339

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Deedar Hussain Shah, JJ

Rana SHAHBAZ AHMED and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 17‑K of 2000 and Jail Petition No.45 of 2000, decided on 8th March, 2001.

(On appeal from the judgment/order of the High Court of Sindh, Karachi, dated 27‑1‑2000, passed in Special A.T. Appeal No. 15 of 1998 and Confirmation Case No.3 of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(4)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Allegation of Zina‑bil‑ Jabr‑‑‑ Conviction no doubt was based on the evidence of the complainant as well as of the victim supported by medical evidence, but ex facie requirement of at least four Muslim adult male witnesses was lacking in the case‑‑‑High Court had also exonerated one accused of the charge of "Zina‑bil‑Jabr"‑‑‑Leave to appeal was granted to accused by Supreme Court to consider the said contentions and tore‑appraise the entire evidence for the safe administration of criminal justice.

M.A. Kazi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record for Petitioners No. l and 3.

Khawaja Naveed Ahmad, Advocate Supreme Court for Petitioner No.2.

Raja Qureshi, Advocate‑General, Sindh for the State.

Date of hearing: 8th March, 2001.

2001 S C M R 1341

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui

and Deedar Hussain Shah, JJ

PAKLAND CEMENT COMPANY and others‑‑‑Petitioners

versus

CITIBANK N.A. and 5 others‑‑‑Respondents

Civil Petitions Nos. 1217, 1218, 1219, 1220, 1221 and 1222 of 2001, decided on 8th May, 2001.

(On appeal from the judgment dated 23‑4‑2001 of High Court of Sindh passed in Special H.C.As. Nos. 295/296/299/300/301 and 302 of 2000).

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Contract Act (IX of 1872), S.56‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Application for leave to defend the suit‑‑‑Expression "serious and bona fide dispute"‑‑‑Connotation‑‑‑Whether a dispute was serious and bona fide or not within the meaning of S.10, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 would depend upon the merits of each case and no hard and fast rule could be laid down for its applicability in abstract form‑‑‑Non‑payment of instalments by the borrower due to alleged increase in custom duty and sales tax was not a valid ground for grant of leave to defend the suit‑‑‑Borrowers were not absolved from their obligations on such pleas and S.56 of the Contract Act, 1872 was not attracted to such matters‑‑‑Default was to be looked into in terms of the agreement‑‑‑Default in payment by the borrower being absolutely clear and element of bona fides on the part of the borrowers being not manifested, relief of leave to defend the suit claimed by the borrowers was rightly refused by the High Court giving cogent reasons therefore‑‑­Petition for leave to appeal was dismissed.

Agrofoster (Pvt.) Ltd. and 2 others v. Judge, Banking Court No.5, Karachi PLD 1999 Kar. 398 distinguished.

Raza Kazim, Advocate Supreme Court and Rana Abdul Ghafoor, Advocate‑on‑Record for Petitioners (in all Civil Petitions).

Syed Ali Zafar, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate ‑on‑Record for Respondent No. l (in all Civil Petitions).

Date of hearing: 8th May, 2001.

2001 S C M R 1346

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

PRINCIPAL, AYUB MEDICAL COLLEGE, ABBOTTABAD---Petitioner

versus

ADNAN ZAFAR and 5 others---Respondents

Civil Petition No. 1133 of 2000, decided on 23rd January, 2001.

(On appeal from the judgment/order dated 11-4-2000 of the Peshawar High Court, Peshawar passed in W.P. No. 1065 of 1997).

Educational institution----

---- Admission in medical college---Self-finance scheme---Candidate opted for self-finance seat and got admission in medical college---Candidate filed Constitutional petition seeking admission against reserved seats for FATA which was allowed by High Court and College was directed to adjust the admission o f the candidate against the seat reserved for FATA candidates--­Such adjustment could only be rude by cancelling seat of one of the candidates who had been already given admission in medical college against the reserved seat---Validity---Candidate having opted for admission on self­-finance seat and thereafter the other candidates were admitted against the reserved seats---It would be unjust both for the college and the other candidates, if the matter of admission would be re-considered---Supreme Court convened the petition for leave to appeal into appeal and set aside the judgment of High Court.

Muhammad Munir Parachs, Advocate Supreme Court for Petitioner Muhammad Waris Khan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd January, 2001

2001 S C M R 1348

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION‑‑‑Petitioner

versus

Captain (Retd.) M.S. AKHTAR‑‑‑Respondent

Civil Petition No. 135‑K of 2000, decided on 27th November, 2000.

(On appeal from the judgment dated 10‑1‑2000 of High Court of Sindh. Karachi in H.C.As Nos.31 ante 3 of 1996).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Civil service‑‑‑Concurrent findings of fact by the 'Courts below‑‑‑Dispute was with regard, payments of benefits of service to the employee‑‑‑Employee after his retirement from service alleged that the Employer Corporation did not give him the proper benefits‑‑‑Civil suit tiled by the employee was decreed by High Court while High Court Appeal was dismissed‑‑‑Validity‑‑‑Both the Courts below had arrived at the concurrent finding that the employee was entitled to the benefits as claimed‑‑‑No misreading or non‑reading of evidence was pointed out‑‑‑Both the Courts had given valid and cogent reasons for arriving at the findings of facts‑‑‑Supreme Court declined to interfere with the conclusions arrived at by the High Court‑‑‑‑‑Leave to appeal was refused.

Amir Malik, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 27th November, 2000.

2001 S C M R 1350

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Javed Iqbal, JJ

MUHAMMAD ISMAIL ---Appellant

Versus

ABDUL HAQ and others---Respondents

Civil Appeal No. 1356 of 1995, decided on 31st January, 2001.

(On appeal from the judgment/order dated 26-10-1994, of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No. 1046 of' 1970).

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-----

---Ss. 22 & 41---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether the declaratory suit instituted by the plaintiff seeking declaration that the suit property was not evacuee property was not competent in view of the provisions of Ss. 22 & 41 of Pakistan (Administration of Evacuee Property) Act, 1957.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----Ss. 22 & 41---Specific Relief Act (1 of 1877), S. 42---Declaratory suit--­Evacuee property---Suit property was Muslim property and the same was wrongly allotted by Settlement Authorities considering the same as evacuee non-Muslim property---Plaintiff assailed the order of the Settlement Authorities in civil suit which was returned by the Trial Court keeping in view the provisions of Ss. 22 & 41 of Pakistan (Administration of Evacuee Property) Act, 1957, and appeal before Lower Appellate Court was dismissed--- High -Court in exercise of appellate jurisdiction allowed the appeal and set aside the order passed by the Settlement Authorities--­Validity---Where the allotment order passed by the Settlement Authorities was not proper and was without jurisdiction, applicability of Ss. 22 & 41 of Pakistan (Administration of Evacuee Property) Act, 1957, did not arise--­Order of the Settlement Authorities allotting the suit property as evacuee property in favour of the defendant was without lawful authority and the same was rightly struck down by the High Court---Judgment of High Court was based on proper appreciation of evidence as well as Evacuee/Settlement Laws and was in consonance with the rules laid down by Supreme Court--­No material irregularity or jurisdictional error in the judgment of High Court was noticed and the same did not call for interferenceby Supreme Court.

Azam Ali and others v. Custodian of Evacuee Property PLD 1968 Lah. 148: Isab Khan and another v. Muhammad Sher and 2 others PLD 1975 Lah. 833; Mst. Munira Bibi and 7 others v. Member, Board of Revenue. Balochistan and 8 others PLD 1978 Quetta 121; Abdul Khaliq-Abdul Razzaq ,v. Kishanchand and others PLD 1964 SC 74 and Mooso through Legal Heirs and others v. Allahdito through Legal Heirs and 7 others PLD 2001 SC 23, ref.

Ch. Noor Elahi, Advocate Supreme.

Court for Appellant. Raja Abdul Ghafoor.

Advocate-on-Record for Respondents.

Date of hearing: 31st January, 2001.

2001 S C M R 1356

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J., Deedar Hussain Shah and Hamid Ali Mirza, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD.

through Chairman and another‑‑‑Appellants

Versus

ALTAF HUSSAIN and others‑‑‑Respondents

Civil Appeals Nos.646 to 666 of 1999, decided on 13th June, 2000.

(On appeal from the judgment dated 12‑10‑1998 of the Federal Service Tribunal, Islamabad in Appeals Nos.482‑K to 50.1‑K of 1998).

(a) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.4‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Seniority‑‑‑Leave to appeal was granted by Supreme Court to consider, whether seniority in a post, service or cadre ‑whereby civil servant was promoted would take effect from the date of regular appointment to that post as envisaged in S. 4‑A of Civil Servants Act, 1973; and whether for the purpose of seniority in a particular grade, regular appointment alone was the determining factor although a period of ad hoc appointment followed by regular service in the same scale would be counted for the purpose of promotion and move‑over for the next grade.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 187 & 185(3)‑‑‑Petition for leave to appeal ‑‑‑Competency‑‑­Petitioner not a party in proceedings before forums below‑‑‑Validity‑‑‑Where interest of a party has been adversely affected and the party is unable to seek effective remedy against the decision of the Tribunal or before any other forum, then such petition for leave to appeal is competent.

M.A. Rashid Rana v. Secretary Home, Government of Puniab and 18 others 1996 SCMR 1145 fol.

(c) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.4‑A‑‑‑Seniority, determination of‑‑‑Ad hoc appointment followed by regular service‑‑‑Supreme Court with the consent of the parties, set aside the judgment of Service Tribunal and the cases were remanded to the Tribunal to afford an opportunity of hearing to the parties and decide the appeals afresh in the light of propositions raised by the parties before Supreme Court‑‑­Appellant who was not party to the proceedings before the Tribunal was directed by Supreme Court to be impleaded as party to appeal and should be heard afresh on the propositions of law as raised by the parties‑‑‑Appeal was allowed accordingly.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and Rahat Hussain Siddiqui v. Board of Education PLD 1997 Kar. 627 ref.

Hafiz S.A. Rehman, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellants (in C.AS. Nos.646 to 665 of 1996).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No. 666 of 1999).

M.Bilal, Advocate Supreme Court and Karam Elahi Bhatti, Advocate‑on‑Record for Respondent (in C. As. Nos. 646 to 666 of 1999).

Muhammad Munir Piracha, Advocate Supreme Court and M.A.

Zaidi, Advocate‑on‑Record for Respondents (in C.A. No. 666 of 1999).

Date of hearing: 13th June, 2000.

2001 SCMR 1363

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Biragwan Das and Abdul Hameed Dogar, JJ

NOOR ELAHI alias KALA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.263 of 2000, decided on 21st February, 2001.

(On Appeal from the judgment dated 17‑6‑1999 of the Lahore High Court, Lahore, passed in Criminal Appeal No.425 of 1993 and Murder Reference No. 187 of 1993).

(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 reappraise the evidence on record for safe administration of criminal justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appraisal of evidence‑‑‑Sentence‑‑‑Ocular evidence was worthy of credence having been corroborated by the established motive and independent evidence of unimpeachable integrity in the shape of recovery of incriminating articles and positive report of the Fire‑Arms Expert‑‑‑Crime empties secured from the place of incident had been sent to the Fire‑Arms Expert much before the recovery of the gun on the pointation of the accused which was even not retained by the police for a long period‑‑‑Evidence of the complainant could not be brushed aside merely on the ground of his belated medical examination‑‑‑Injury sustained by the complainant had been mentioned in the promptly lodged F.I.R., duration of which as worked out by the Doctor, had coincided with the time of occurrence‑‑‑Presence of the complainant on the spot at the relevant time could be conveniently and safely inferred from the promptly lodged F. I. R. ‑‑Conflict between the medical evidence and the ocular evidence had vanished after the acquittal of co­accused‑‑‑Improvement regarding the point of impact of firing made by the accused was too trivial to, destroy the prosecution case‑‑‑Contention about the testimony of the eye‑witnesses having been disbelieved qua majority of the accused persons was not sustainable qua the accused as it negated the well settled principle of evaluation of evidence i.e., "sifting grain from chaff" which had replaced the discarded principle "falsus in uno falsus in omnibus "‑‑‑Conviction of accused was upheld in circumstances‑‑‑Accused, however, who was 20 years of age on the day of occurrence was obsessed, according to prosecution evidence, with the idea of avenging the murder of his mother, which was not a rare phenomenon and his obsession had been aggravated by the influence of his father and elder brother who had been acquitted by the High Court‑‑‑Sentence of death awarded to accused was altered to imprisonment for life with benefit of S. 382‑B, Cr.P.C. in circumstances.

Ajun Shah v. The State PLD 1967 SC 185; Pervaiz v. The State 1984 SCMR 848 and Muhammad Aslam v. The State PLD 1985 SC 257 ref.

Ch. Muhammad Hussain Chhachhar, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 21st February, 2001.

2001 SCMR 1368

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

Messrs PAKISTAN PETROLEUM LIMITED‑‑‑Petitioner

Versus

MUHAMMAD YAQOOB‑‑‑Respondent

Civil Petition No.358‑K of 2000, decided on 29th November, 2000.

(On appeal from the judgment/order dated 1‑7‑2000 passed by Federal Service Tribunal, Islamabad, in Appeal No. 1678‑K of 1998).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973)‑‑‑Art.212(3)‑‑‑Re‑instatement‑‑­Master and servant, relationship of‑‑‑Failure to give second show‑cause notice‑‑‑Effect‑‑‑Employee was re‑instated in service by Service Tribunal with back benefits solely on the ground that the he was not served with the second show‑cause notice‑‑‑Contention by the employer was that it was not a statutory Corporation and the relationship between the parties was that of master and servant and that the case be remanded to Service Tribunal for decision afresh‑‑‑Employee consented for such remand‑‑‑Petition for leave to appeal was converted into appeal and the case was remanded to Service Tribunal for decision afresh‑‑‑ Service Tribunal was directed by the Supreme Court to give findings on the points raised by the employer and also to the fact that whether the allegations against the employee amounted to misconduct or not.

Divisional Engineer Phones v. Muhammad Shahid 1999 SCMR 1526 ref.

Mahmudul Hassan, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioner.

M.L. Shahani, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent.

Date of hearing: 29th November, 2000.

2001 SCMR 1370

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Javed Iqbal, JJ

Mst. ULFAT BIBI through Legal Heirs‑‑‑Appellant

Versus

MUHAMMAD HANIF and others‑‑‑Respondents

Civil Appeal No.660 of 1998, decided on 14th February, 2001.

(On appeal from the judgment/order dated 17‑3‑1997, of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.260‑D of 1974).

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

‑‑‑‑O.XX, R.13‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑­Administration suit‑‑‑Leave to appeal was granted to consider whether in the facts and circumstances of the case the High Court was justified in not considering the case of the petitioners on merits.

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

‑‑‑‑O.XX, R.13‑‑‑Administration suit‑‑‑Dispute qua divorce‑‑‑Plaintiff claimed to be widow of the deceased and was entitled to succeed the estate of the deceased‑‑‑Divorce had been proved through reliable evidence and was accepted by the Courts below‑‑‑Except the validity of divorce no other point was agitated before High Court and the revision against concurrent judgments of both the Courts below was rightly dismissed by the High Court‑‑‑Supreme Court declined interference.

Muhammad Akram Sheikh, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants.

Ch. Arshad Ali, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 14th February, 2001.

2001 S C M R 1373

[Supreme Court of Pakistan]

Before Qazi Muhammad Farooq, Rana Bhagwan Das and Abdul Hameed Dogar, JJ

MUHAMMAD SHAHID and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.265 of 2000, decided on 22nd February, 2001.

(On Appeal from the judgment dated 27‑10‑1999 passed by Lahore High Court, Lahore in Criminal Appeals Nos.46, 180 of 1996, Murder Reference No. 108 of 1996 and Criminal Revision No. 102 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sentence‑‑‑Leave to appeal was granted by Supreme Court to the accused to re‑examine the quantum of sentence only.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appraisal of evidence‑‑‑Incident admittedly had not taken place all of a sudden, but was a pre‑planned one‑‑‑Fight had taken place between the deceased and the accused a day prior to the incident where after threats had been issued to‑ the deceased for avenging the insult‑‑‑Accused within 24 hours of the previous incident had fired two successive shots at the deceased resulting in his instant death‑‑‑Courts below had elaborately discussed the aspect of awarding death sentence to the accused by establishing motive fully against him and their concurrent findings warranted no interference‑‑‑Where conviction was once recorded under S. 302, P.P.C. in the case of a premeditated and concerted attack launched with a particular motive to commit murder, normal penalty was death unless mitigating circumstances existed on record‑‑‑No mitigating circumstances being available on record in favour of accused, his conviction and sentence of death were upheld‑‑‑Appeal of accused was dismissed accordingly.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 ref.

M. Nasim Kashmiri, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record Jabsent) for Appellants.

Ch. Muhammad Akram, Advocate Supreme Court for Advocate­-General, Punjab for the State.

Date of hearing: 22nd February, 2001.

2001 SCMR 1376

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Mian Muhammad Ajmal, JJ

SHEIKHOO SUGAR MILLS LTD. and others‑‑‑Appellants

Versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Civil Appeals Nos. 1805 to 1811. of 1998, 1392, 1417, 1418 of 1999, 2, 22, 129, 488, 489 and Civil Petitions Nos.386‑I., 526‑L and 700‑L of 2000, decided on 27th February, 2001.

(On appeal from order, dated 14‑4‑1998 in Writ Petitions Nos.259/98, 29575/97, 2728/98, 4512/98, 4313/98, 29574/97, order dated 7‑9‑1999 in W.P. 14739/99, order dated 22‑10‑1999 in W.P. 19779/99, order dated 29‑9‑1999 in W.P. 17156/99, order dated 13‑1‑2000 in W.P. 23309/99, order dated 2‑2‑2000 in W.P. 721/20(10, order dated 31‑12‑1999 in W.P. 24463/99, order dated 23‑12‑1999 in W.P. 23807/99, order dated 17‑1‑2000 in W.P. 386‑L/2000, order dated 28‑2‑2000 in W.P. 3220/2000 and order, dated 20‑3‑2000 in W.P. 4388/2000).

(a) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss.3, 2(35)(41)(44) & (46)‑‑‑Constitution of Pakistan (1973), Art. 185(3) & Fourth Sched., Federal Legislative List, Part I, Items Nos.49 & 59‑‑­Bagasse‑‑‑Levy of sales tax‑‑‑Validity‑‑‑Leave to appeal was granted, by Supreme Court to examine the questions as to whether in view of the fact that the Sugar Mills (petitioners) were consuming 'Bagasse' and no third person was involved in the sale thereof, the Sugar Mills were liable to the payment of sales tax on 'Bagasse'; whether within the ambit of S.3 of the Sales Tax Act, 1990, being the charging section, "taxable activity", "taxable supply", "time of supply" and "value of supply" respectively defined in S.2(35), (41), (44) & (46) of the Sales Tax Act, 1990 could be equated with the process of 'sale' even notionally and whether the High Court was correct in observing that the effect of joint reading of Items Nos.49 & 59, Part I of the Federal Legislative List in the Fourth Sched. of the Constitution was that the Sugar Mills could be made to pay sales tax on "Bagasse" in the presence of the exemption to take effect during the financial year in question i.e. 1‑7‑1996 to 30‑6‑1997 in that the same was rescinded during its currency, on 30‑6‑1997.

(b) Words and phrases ‑‑‑

‑‑‑‑"Bagasse"‑‑‑Meaning‑‑‑Bagasee can be termed as intermediary marketable produce used as fuel for burning boilers containing juice of sugarcane or for making soft or hard building board.

Words and Phrases, Permanent Edn. 5; The Oxford English Dictionary; The Concise Oxford Dictionary; The New Encyclopaedia Britannica, Vol. 1, p.791 and The New Encyclopaedia Britannica Vol., p.378 quoted.

(c) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑Ss.3, 2(33), (16), (17), (35), (41), (44), (46), 7 & 13‑‑‑S.R.O. 437(1)/97, dated 13‑6‑1997‑‑‑Exemption of Bagasse from sales tax‑‑‑Notification S.R.O. 437(I)/97‑‑‑Retrospectivity‑‑‑Test‑‑‑"Taxable activity" ‑‑‑Concept‑‑­"Taxable supply" ‑‑‑'Manufacture'‑‑‑Meaning‑‑‑'Bagasse' is an intermediary produce which is manufactured/produced during the process of extrusion of sugarcane to obtain juice by the Sugar Mills‑‑‑Sugar Mills, being registered, consume 'Bagasse' differently and distinctly as a fuel against the value which is to be calculated at market price excluding the amount of tax if it is not otherwise determinable as such Bagasse being a taxable in furtherance of 'taxable activity', is liable to sales tax under S.3 of the Sales Tax Act, 1990‑­Bagasse as per its definition is an identifiable/marketable goods on which tax can be levied, therefore, once a taxable goods has been supplied by a person to itself same would fall within the definition of 'taxable supply'‑‑­Notwithstanding the fact whether the sale has taken place or not between two persons but fact remains that by supplying Bagasse the Sugar Mills will be doing a "taxable supply" during the process of "taxable activity" ‑‑‑'Taxable activity' covers any form of those activities which are‑even carried out by one person in his own business‑‑‑Principles.

The dictionary meanings of word "Bagasee" suggest that it can be termed as intermediary marketable produce used as fuel for burning boiler containing juice of sugarcane or for making soft or hard building board.

Bagasse caters 70/80% requirement of energy required to be consumed for manufacturing sugar. In other words by use of Bagasse as a fuel in process of manufacturing sugar the Mills are relieved from financial burden to this extent. Besides it, Bagasse and other derivatives of the sugarcane procured during the process of manufacturing sugar like cane molasses, cane wax etc. are considered as bye‑products of the sugar. The cane molasses is also used in preparation of livestock feed, alcoholic drinks etc. similarly cane wax is used in manufacturing polish, polishes, cosmetics and paper coatings. Thus Bagasse cannot be considered a residue of the sugarcane but a useable product.

Central Board of Revenue has assigned a separate head to Bagasse for the purpose of levying customs duty, sales tax, etc. alongwith other residues and waste of Food Industries. But the Federal Government had been granting exemptions on the levy of sales tax by issuing notifications from time to time earlier under subsections (1) and (2) of section 7 of the Sales Tax Act, 1951 (III of 1951) and later on its amendment under subsection (1) of section 13 of the Sales Tax (Amendment) Act, 1990. Such exemption, however, w not allowed for the period commencing from 1st July, 1996 to 13th June, 1997 as the same was not reflected in the Finance Act, 1996. However, by a Notification No.SRO 437(1)/97, dated 13th June, 1997 the Federal Government extended exemption of sales tax on the Bagasse, it used in house as fuel. The notification was to operate till 30th June, 1997 in the Finance Act, 1997 exemption of sales tax was again granted on the same conditions as it had been mentioned in the notification referred to hereinabove.

The Sales Tax Act, 1990 has been re‑enacted to consolidate and amend the law relating to levy of tax on the sale of goods, importation, exportation, production, manufacture or consumption of goods. Ordinarily concept of sale of goods represents to a sale transaction between two persons under an agreement. It is necessary that there should be an agreement between parties for the purposes of transferring title to goods which presupposes capacity to contract, it must be supported by money consideration, and as a result of the transaction property must actually pass in the goods. If the element of transfer of property from one person to another is lacking in any transaction there is no sale and the Legislature cannot be treating it as a sale by a deeming clause to bring it within the ambit of the taxing authorities. Consumption by an owner of goods in which he deals, therefore, is not a sale within the meaning of the Sale of Goods Act.

Although as per the title of the Act it should be meant for tax on the sales and not on any other transaction but as per its preamble and definition clause as well as under section 3 of the Sales Tax Act which is a charging section the sales tax is leviable on taxable supplies and taxable activities.

As per clause (a) of subsection (1) of section 3 of the Sales Tax Act two conditions are essential to levy sales tax namely the taxable supplies and taxable activities. Both these expressions have been defined under sections 2(35) and 2(41) of the Act.

Expression "sales of goods" has to be interpreted exhaustively because definition clause of taxable activity i.e. section 2(35) has used the words means and includes but simultaneously other expressions used in this clause as well as clause 2(41) have to be taken into consideration broadly to ensure the objects for which the Act has been promulgated. As far as word "sale" is concerned it has not been defined anywhere in the Act rather it has been used as one of the component of "supply" under section 2(33) of the Act, according to which "supply" includes sale or other disposition of goods in furtherance of business carried out for consideration and also includes putting to private business or non‑business use of goods acquired, produced or manufactured in the course of business etc.

The intention of the Legislature can be gathered from the arrangement of different parts of section 2(35) of the Act which appears to be disjunctive and not conjunctive. Its careful study suggests that taxable activity means any activity which is carried out by any person which may include one or more than one person with pecuniary profit or without pecuniary profit with regard to supply of goods to any person for any consideration or supply of goods otherwise and the supply of goods includes any activity carried on in tire forth of business, trade or manufacture meaning thereby that if supply of goods has been made in the course or furtherance of business carried out for consideration putting to private business or non­-business use of goods acquired, produced or manufactured in the course of the business it would fall within the definition of taxable activity. Reference may also be made to the definition of manufacturer or producer under section 2(17) of the Act, according to which a person who engages whether exclusively or not, in the production or manufacture of goods whether or not the raw material of which the goods are produced or manufactured are owned by him and shall include a person who by any process or operation assembles, mixes, cuts, dilutes, bottles, packages, repackages or prepares goods by any other manner etc. will be considered to have manufactured or produced identifiable goods which can either be consumed independently or can be incorporated in the finished product of any item. Admittedly the intermediary produce of Bagasse which is procured during the process of extracting juice from sugarcane can be considered a marketable, and identifiable goods which can be supplied by a corporate or incorporate person to itself in the course of business. While making such supply it is not necessary that it should be against money consideration to a third person because as noted that the definition of word "supply" under section 2(33) includes putting to private business etc. therefore, instead of defining the expression taxable activity extensively if it is defined exhaustively it covers any form of those activities which are even carried out by one person in his own business. As Bagasse as per its definition is an identifiable/marketable goods on which tax can be levied, therefore, concluding so once a taxable goods has been supplied by a person to itself it would fall within the definition of taxable supply. Thus notwithstanding the fact whether the sale has taken place or not between two persons but fact remains that by supplying Bagasse the Sugar Mills will be doing a taxable supply during the process of taxable activity. As such it is liable to sales tax under the Act unless otherwise it is exempted by the Federal Government to provide incentive to the traders dealing to the sugar manufacture so they may reduce the price of the sugar by saving the price incurred by them on the fuel by burning Bagasse because .if they have to consume other energy i.e. electricity, gas etc. they have to pay its price independently.

The definition of word 'manufacture' as para.2(16) of the Act clearly suggests that the sugarcane during its extrusion produces Bagasse, which is admittedly capable of being put to use differently. Therefore, squarely it falls within the definition of manufacture.

Sugarcane after passing through the process of extrusion does produce an intermediary product known as Bagasse which has an independent identity, status and character known to the consumer and it is also marketable in view of its utility.

In the present case as far as Bagasse is concerned it was not to be assimilated in the production of sugar and its identity remained independent from that of end product i.e. sugar. As such sales tax was leviable on it being a distinct and different item capable of use for any other purpose unless exempted from the tax.

Bagasse is a different article having a distinctive character and purpose for which it can be used.

Bagasse is manufactured/produced as a distinct and different intermediary product which can be supplied by the Sugar Mills to themselves while preparing sugar and would be covered by taxable activity and nature of such supply would be that of a taxable independent character and status

Retrospective effect of the amending law would apply on those cases where assessment has not been made or where an appeal was pending the Tribunal or a law was enacted. The cases which had finally been determined or had attained finality which were past and closed transactions, could not be reopened under amending legislation as there are no express words to that effect employed in the amending law. Applying this test on the present case in absence of any material on record to conclude that on the date when SRO 437(1)/97, dated 13th June, 1997 was promulgated cases of Sugar Mills were pending for assessment of the tax on Bagasse before any forum. This aspect of the case can also be viewed from another angle namely that as per Finance Act, 1996 no exemption of sales tax was allowed on the Bagasse, therefore, its recovery was automatic under the Act. Thus a presumption would be that before instituting writ petitions the department might have calculated sales tax on Bagasse liable to be paid by them and there is strong presumption that majority of the Mills might have paid this tax. Moreover, the conduct of the Sugar Mills of filing writ petitions directly suggests to hold that they did not follow the remedy available to them before the forums under the hierarchy of the Act. It is settled law that notification operates prospectively unless it has been made to operate retrospectively.

In accordance with the settled principles of interpretation of statutory rules, orders and notifications, an amendment or change which will take effect only from the date of its promulgation unless it has been expressly or by necessary intendment made to take effect retrospectively. [p. 1395] N

In SRO 437(1)/97 there is no intendment to make it retrospective as such there was no omission at all in the Finance Act, 1996 by not incorporating Bagasse in the Schedule to be the item which will be exempted from the sales tax. The act of non‑granting exemption of sales tax on Bagasse seems to be intentional because exemption of the tax was not withheld only on Bagasse but on many other items and subsequently when Notification, dated 13th June, 1997 was issued exemption on all those items was granted including Bagasse, therefore, argument so raised in this behalf is repelled being devoid of force.

The definition of the value has to be read under section 2(46) (a)(i) of the Act which would show that even in absence of value of the supply the activity can be termed to be a taxable activity of the taxable supply.

Sugar Mills which have failed to show that their turn over from taxable supply had not exceeded 2.5 million rupees, it is‑ presumed that the Mills are registered one and if they make taxable supplies they would be liable to pay sales tax.

As far as the definition of the value of the supply under section 2(46) of the. Act is concerned it also covers those cases in which apparently fixation of the value is not possible because for the taxable supply no consideration in terms of money has taken place, therefore, in such cases for the determination of the value of the supply shall mean the open market price of the supply excluding the amount of tax in terms of section 2(46)(a)(i) of the Act.

Section 7 of the Act appears to be beneficial provision of law in nature providing a facility to a registered person to adjust input tax at the time of making payment of output sales tax. But if no input tax is paid on intermediary produce without any adjustment the tax will be paid in terms of section 3 of the Act on its value which will be calculated as per the provisions of section 2(46)(a)(i) or section 2(46)(c) of the Act. As such the registered persons will not be burdened with the liability of double taxation.

The deeming provision created a legal fiction that in the restricted parameters, the use of consumption of independently identifiable goods would be considered to be a sale so as to bring such goods within the tax net. The use and consumption of intermediary goods could be treated as sales by legal fiction so as to bring such goods under the levy of sales tax where the final product was not subject to sales tax when sold and that the use or consumption of intermediary goods in such circumstances have nexus with sale. Federal Legislature was, therefore, competent to enact the deeming provisions under entries of "sales of goods" in the Constitutional documents.

Bagasse is an intermediary produce which is manufactured/produced during the process of extrusion of sugarcane to obtain juice by the Sugar Mills and being registered entities and is consumed differently and distinctly as a fuel against the value which is to be calculated at market price excluding the amount of tax if its price is not otherwise determinable. As such it being a taxable supply in furtherance of taxable activity, is liable to sales tax under section 3 of the Act.

Commissioner of Sales Tax and others v. Hunza Central Asian Textile and Woollen Mills Ltd. and others 1999 SCMR 526 reaffirmed.

Indian Aluminium Co. Ltd. and another v. A.K. Bandyopadiyay and others 1980 ELT 146 (Bom.); Messrs I.C. & E. Morton (India) Limited and others v. Superintendent of Central Excise, Chapra and others 1980 ELT 99 (Cal.); Wirecond Delhi (Pvt.) Ltd. 1980 ELT 789 (C.B.E.&C.); Union of India and anther v. I. Delhi Cloth and General Mills Co. Ltd. AIR 1963 SC 791; Commissioner of Sales Tax v. Messrs Shaiq Corporation Limited PLD 1986 SC 731; Messrs Electric Lamp Manufacturers of Pakistan Ltd. v. The Government of Pakistan through Secretary Finance, Islamabad and 3 others 1989 PTD 42 and Assistant Collector of Central Excise and Land Customs and 2 others v. Orient Straw Board and Paper Mills Ltd. PLD 1991 SC 992 distinguished.

AIR 1977 SC 90; AIR 1989 SC 335; AIR 1995 SC 1395; The State of Madras v. Messrs Gannon Dunkerley & Co. (Madras) Ltd. AIR 1958 SC 560: Bhopal Sugar Industries Ltd. M.P. and another v. D.P. Dube. Sales Tax Officer, Bhopal Region, Bhopal and another AIR 1964 SC 1037; Deputy Commercial Tax Officer, Saidapet, Madras and another v. Enfield India Ltd Cooperative Canteen Ltd. AIR 1968 SC 838; AIR 1954 SC 459; AIR 1978 SC 449; 1999 PTD 1892: 2000 PTD 3715: AIR 1977 SC 597; ‑15180 ELT (Bom.) 146; 1980 ELT 99 (Cal.); 1980 ELT 789: C.B.E. & C.; PLD 1991 SC 992; PLD 1986 SC 731: 1989 PTD 42; Noori Cotton Corporation v. Sales Tax Officer PLD 1965 SC 161; Commissioner of Sales Tax and others v. Hunza Central Asian Textile and Woollen Mills Ltd. and others 1999 SCMR 526; South Bihar Sugar Mills Ltd. and others v. Union of India and another AIR 1968 SC 922; 1993 SCMR 73: 2000 PTD 285; PLD 1983 Pesh 112, 1985 PTCL 441: Commissioner of Income‑tax v. Olympia 1987 PTD 739; 1993 SCIVIR 73 and The Burmah Oil Company Limited v. The Trustees for the Port of Chittagong PLD 1961 SC 452 ref.

"Ali Sibtain Fazli, Advocate Supreme Court, Imtiaz Muhammad Khan, Advocate‑on‑Record and M.A, Qureshi, Advocate‑on‑Record for Appellants (in C. As. Nos. 1805 of 1998, 2 and 22 of 2000, C. Ps. Nos.386‑L and 700‑L of 2000).

Raja Muhammad Akram, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellants (in C. A. No. 1806 of 1998).

Hamid Khan, Advocate Supreme Court, Imtiaz Muhammad Khan, Advocate‑on‑Record and Ejaz Ahmad Khan, Advocate‑on‑Record for Appellant (in C. As. Nos. 1807, 1809 and 1810 of 1998).

Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant (in C. A. No. 1808 of 1998).

Jawaid Shaukat Malik, Advocate Supreme Court and Mahmadul Islam, Advocate‑on‑Record for Appellant (in C A. No. 1811 of 1998).

M. A. Zaidi, Advocate‑on‑Record for Appellant (in C.A. No. 1392 of 1999).

Jawaid Shaukat Malik, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.As. Nos.1417, 1418 of 1999 and 129 of 2000).

Mahmadul Islam, Advocate‑on‑Record for Appellants (C.As. Nos.488 and 489 of 2000).

Muhammad Naeem, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record for Petitioner (in C.P. No.526‑L of 2000).

Mansoor Ahmad, Deputy Attorney‑General (on Court's Notice in all Cases).

Muhammad Naseem, Advocate Supreme Court, A. Karim Malik, Senior Advocate Supreme Court, K. M. Virk, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate Supreme Court, Ch. Akhtar Ali, Advocate‑on‑Record and Aslam Chaudhry, Advocate‑on‑Record for Respondents.

Dates of hearing: 8th, 9th and 10th January, 2001.

2001 SCMR 1398

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Qazi Muhammad Farooq and

Rana Bhagwan Das, JJ

TANDLIANWALA SUGAR MILLS LTD. and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Revenue and Economic Affairs, Islamabad and others---Respondents

Civil Petitions Nos. 1956-L to 1967-L, 2169-L, 2210-L to 2213-L, 2219-L of 1999, 114-L, 116-L to 119-L, 142-L, 148-L and 149-L of 2000 converted into appeal and decided on 19th May, 2000.

(On appeal from the judgment dated 15-11-1999 of the Lahore High Court, Lahore, passed in Writ Petitions Nos. 14425, 14426, 14809, 14810, 14812, 14813, 14887, 14888,14889, 14971, 14972, 14973,12867, 15085, 15179, 15180, 15240, 2076 of 1999, 47 of 2000, 8329, 15911, 15747, 14619, 12313 of 1999, 19045 of 1998 and 12312 of 1999 respectively).

Sales Tax Act (VII of 1990)-----

----S.3 [as amended by Finance Act (III of 1999) and Finance Act (IV of 1999)---Constitution of Pakistan (1973), Art.185(3)---Levy of sales tax--­Pleas raised in the petition were not stressed by the petitioner and he stated to be satisfied if further tax at the rate of 1% levied by Finance Act, 1998, was set aside---Effect---Earlier amendment was technically defective and the same was struck down on the touchstone of the second amendment inserted vide Finance Act, 1999, which did not suffer from any legal infirmity---Petition for leave to appeal was converted into appeal and was partly accepted to the extent of further tax at the rate of 1 % levied by Finance Act, 1998, and dismissed in respect of further tax at the rate of 3 % levied by Finance Act, 1999:

Ali Ahmed Awan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in all Petitions except C.Ps. Nos. 2169-L and 2219-L of 1999).

A. Karim Malik, Advocate Supreme Court and K. M. Virk, Advocate Supreme Court for Respondents.

Date of hearing: 19th May, 2000.

2001 SCMR 1401

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Mian Muhammad Ajmal, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN‑‑‑Appellant

Versus

KOTRI TEXTILE MILLS (PVT.) LTD. --‑‑‑Respondent

Civil Appeal No. 1781‑K of 1997, decided on 28th November, 2000.

(On appeal from the judgment dated 28‑2‑1996 passed by High Court of Sindh, Karachi in F.R.A. No.299 of 1994).

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

‑‑‑‑S.16(2)‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the tenant's application under S. 12(2), C.P.C. was competent against the order passed by Rent Controller striking off his defence for non‑compliance of the tentative rent order and whether the High Court was justified in allowing the appeal and condoning the delay of one day in depositing the arrears of rent upon tenant's application under S. 12(2), C.P.C.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.16(2)‑‑‑Tentative rent order‑‑‑Extension of time for deposit of tentative rent‑‑‑Rent Controller's jurisdiction‑‑‑Scope‑‑‑Where the Rent ‑ Controller was of the opinion that there was no mala fides on the part of the tenant in complying with the order, the Rent Controller had inherent jurisdiction under S. 16(2), Sindh Rented Premises Ordinance, 1979, to enlarge the time reasonably.

Ghulam Muhammad v. Mst. Raj Begum PLD 1962 Quetta 136 rel.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.16(2)‑‑‑Tentative rent order‑‑‑Con donation of delay in deposit of tentative rent‑---Scope‑‑‑Where the non‑compliance of the tentative rent order was made without explaining the circumstances causing such failure, the tenant deserved no concession‑‑‑Rent Controller was not bound to exercise jurisdiction in favour of the tenant, in circumstances.

(d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.16(2)‑‑‑Ejectment of tenant‑‑‑Striking off defence‑‑‑Tentative rent order‑‑‑Delay of one day in. deposit of tentative rent ‑‑‑Condonation of delay‑‑‑Counsel for the tenant had gone abroad‑‑‑Tenant on the last day of prescribed period, applied for extension of time and deposited the tentative rent on the following day‑‑‑Rent Controller declined to extend the time and defence of the tenant was struck off‑‑‑High Court in exercise of appellate jurisdiction, condoned the delay of one day and set aside the order passed by the Rent Controller‑‑‑Validity‑‑‑High Court after taking into consideration the facts and circumstances of the case had rightly condoned the delay‑‑­Supreme Court refused to interfere with the order passed by the High Court.

Akram Zuberi, Advocate Supreme Court and S.M. Abbas, Advocate‑on‑Record (absent) for Petitioner.

M.A. Qami, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 28th November, 2000.

2001 S C M R 1405

[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, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Corroboration‑‑‑One weak piece, of evidence cannot corroborate another similar evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 40‑‑‑Appraisal of evidence‑‑‑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 weak piece of evidence‑‑‑Accused had merely pointed out the place to the police where he had thrown the children, but the same having not led to the discovery of any fact for the purpose of Art. 40 of the Qanun‑e‑Shahadat, 1984, such evidence could not be relied upon as corroboratory evidence‑‑‑Delay of 266 days in filing the petition was condoned as dismissal of appeal for such technical reason would have caused grave injustice to the accused' under the circumstances of the case‑‑‑Accused was acquitted in circumstances.

(c) Limitation‑‑‑‑‑‑

Condonation of delay‑‑‑Delay of 266 days in filing the petition was condoned as dismissal of appeal for such technical reason would have caused grave injustice to the accused under the circumstances of the case‑‑­Accused was acquitted in circumstances.

Muhammad Javed Aziz Sandhu, Advocate.

Supreme Court for Appellant.

Malik Ainul Haq, Advocate Supreme Court for the State.

Date of hearing: 17th January, 2000.

2001 SCMR 1408

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

SECRETARY TO GOVERNMENT OF PUNJAB, AGRICULTURE

DEPARTMENT and others‑‑‑Petitioners

Versus

Dr. SABIR ZAMEER SIDDIQUE and‑ others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2301‑L of 2000, decided on 4th January, 2001.

(On appeal from the judgment dated 20‑5‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No.734 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.212(3)‑‑‑Terms and conditions of service‑‑‑Order passed by Supreme Court, implementation of‑‑‑No substantial question of law of public importance involved in petition‑‑‑Maintainability‑‑‑Grievance of civil servant was that the order of Supreme Court in case titled Dr. Sabir Zamir Siddiqui v. Mian Abdul Malik and 4 others reported as PLD 1991 SC 226 was not implemented by the Service Tribunal‑‑‑Validity‑‑‑Order was passed by the Tribunal in conformity with the rule laid down in the judgment‑‑‑Supreme Court declined to interfere with the judgment of Service Tribunal as no substantial question of law of public importance within the contemplation of Art. 212(3) of the Constitution was involved in the case‑‑‑Leave to appeal was refused.

Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik and 4 others PLD 1991 SC 226 ref.

Muhammad Riaz Lone, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th January, 2001.

2001 S C M R 1409

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and Tanvir Ahmed Khan, JJ

Dr. SABIR ZAMIR SIDDIQUI and 6 others‑‑‑Appellants

Versus

MUHAMMAD ISMAIL and another‑‑‑Respondents

Civil Appeal No.904 of 1999, decided on 28th November, 2000.

(On appeal from the judgment dated 5‑11‑1998, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Writ Petition No. 1007 of 1994).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13‑‑‑Limitation Act (IX of 1908), S. 18‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant‑‑‑Execution petition‑‑‑Dismissal of execution petition as time‑barred‑‑‑Concealing of facts by tenant‑‑---­Contentions of the landlord were that the deceased predecessor of the landlord was suffering; from paralysis and became bed‑ridden and could not pursue the litigation; that when the petition for leave to appeal was dismissed by the Supreme Court, the tenant fraudulently concealed that fact from the deceased that the tenant had been continuously depositing the rent in the Court as ordered by the interim order of the Supreme Court, in order to further give impression to the deceased landlord that the stay order was still operative in order to prevent the deceased from seeking execution of the ejectment order within period of limitation and these averments were made it: the affidavit appended with writ petition as also in reply to the objection petition before Rent Controller; that the landlords were entitled to the benefit of S.18.of the Limitation Act, 1908 and that such aspects of the case had not been considered by the High Court‑‑‑Validity‑‑‑Judgment of the High Court showed that no notice was taken of the contentions and as such, the application of the "law was not correctly made and had the same been considered the execution petition would not have been dismissed as barred by time‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions raised by the landlords.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13‑‑‑Limitation. Act (IX of 1908), S. 18‑‑‑Ejectment of tenant‑‑­Execution petition, . dismissal as time‑barred‑‑‑Concealing of facts by tenants‑‑‑Tenants filed petition for leave to appeal before Supreme Court arid the same was refused‑‑‑Tenants had all along been depositing the rent to give an impression that the stay order was still operative and as such actively ‑‑--actively concealed of dismissal of the petition from the landlords‑‑­Application for execution, in circumstances, could not legally be termed as time‑barred‑‑‑Judgments of the Courts below were set aside and Supreme Court directed the executing Court to execute the decree/order in accordance with law.

Malik Muhammad Jehanzeb Khan Tamman, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants.

Respondents: Ex parte.

Date of hearing: 28th November, 2000.

2001 SCMR 1412

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Hamid Ali Mirza, JJ

MUHAMMAD HUSSAIN ‑‑‑ Petitioner

Versus

ZAHEER AHMED and others‑‑‑Respondents

Criminal Petition No.207 of 2000, decided on 1st January, 2001.

(On appeal from the judgment dated 11‑8‑2000 passed by Lahore High Court, Rawalpindi Bench in Crl. Misc. No.4303‑B of 2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.342/406/420/468/471‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Cancellation of bail‑‑‑High Court had granted bail to accused on the grounds that co‑accused had already been released on bail, civil litigation relating to the subject‑matter in dispute was pending before the competent Court having jurisdiction in the matter, scope of S. 409, P.P.C. was yet to be determined with reference to the circumstances of the case and that there was delay in lodging the F.I.R.‑‑­Said order of High Court was in accordance with the material available on record and not open to any exception‑‑‑Leave to appeal was refused by Supreme Court to the complainant accordingly and the petition was dismissed.

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Tariq Khokhar, Additional Advocate‑General, Punjab for the State.

Zaman Bhatti, Advocate Supreme Court for Respondents:

Date of hearing: 1st January, 2001.

2001 SCMR 1413

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Mian Muhammad Ajmal and Deedar Hussain Shah, JJ

MIR AFZAL‑‑‑Petitioner

Versus

TAHIR ALI and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No. 169 of 2000; decided on 11th October, 2000.

(On appeal from the judgment/order, dated 12‑6‑2000, of the Peshawar High Court, Circuit Bench, Abbottabad, passed in Criminal Revision No.2 of 2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.514‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused had been granted bail in the case and on his applications reasonable exemptions were granted to him by the Trial Court on the ground of illness‑‑‑When Trial Court came to know that absence of the accused was wilful and intentional, process was issued and the statement of the process‑server was recorded which showed that the accused had jumped the bail and there was no likelihood that he would attend the Court‑‑‑Trial Court in such circumstances had passed a very appropriate order calling upon the sureties to explain as to why their surety bonds might not be cancelled‑‑‑Said order of Trial Court was set aside by High Court on the revision petition filed by the accused who was granted exemption from personal appearance before Trial Court and notices issued to his sureties were also withdrawn, with permission to Trial Court to summon the accused if considered necessary at any stage of the trial‑‑‑Prosecution witnesses, according to record, had been attending the Court, but they could not be examined due to the wilful absence of the accused‑‑‑Petition for leave to appeal was converted into appeal in circumstances, impugned order of High Court was set aside and the Trial Court was directed to proceed with the case and take action in accordance with law.

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

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

Date of hearing: 11th October, 2000.

2001 SCMR 1416

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

THE STATE through Advocate‑General, N.‑W.F.P., Peshawar‑‑‑Appellant

Versus

TAUS KHAN and 2 others‑‑‑Respondents

Criminal Appeal No.470 of 1995, decided on 14th March, 2001.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 11‑6‑1995 passed in Criminal Appeal No.46 of 1995).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑.S.320‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to the State to examine whether High Court in acquitting the accused had rightly interpreted S. 320, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Scope of S. 302(c), P.P.C.‑‑‑Cases which fell under S.304, P.P.C. earlier are now covered by S.302(c), P.P.C. similarly S,304‑A, P.P.C. has been replaced by S.320, P.P.C.

(c) Penal Code (XLV of .1860)‑‑‑

‑‑‑‑S.320‑‑‑Appraisal of, evidence‑‑‑Rash and negligent driving‑‑‑1n order to determine whether the driving was rash and negligent, attending circumstances had to be looked into‑‑‑Speed could very easily be determined by the fact that the vehicle went out of control hitting an ox which died at the spot and thereafter collided with a tree with such velocity that a person sitting in the coach died immediately and a number of passengers were injured ‑‑‑High Court, thus, had erred in law by holding that prosecution had failed to prove rash and negligent driving‑‑‑Reasoning that S. 320, P.P.C. could be attracted only if a person had died on the road on account of accident, was against the law‑‑‑Such a 'qualification was not contained in any of the provisions of the Penal Code‑‑‑Only ingredient was "Qatl‑i‑Khata" by rash and negligent act‑‑‑Consideration of being on a road on foot or inside a vehicle was not there and could not be read into the law‑‑‑Misreading as well as non‑reading of evidence had also been made in the case‑‑‑High Court had no basis to conclude that the ox was tied on the road which met with the accident and there was no rash and negligent driving‑‑‑Complainant in his statement on oath had specifically stated that the accused was driving the coach in a rash and negligent manner and his ox had died which was tied on the road side, which was not challenged by the defence on such points‑‑­Without giving any finding with regard to the truthfulness or otherwise of the witness, the statement had to be accepted‑‑‑Judgment of High Court acquitting the accused was consequently set aside and that of the Trial Court convicting him was restored‑‑‑Appeal was accepted accordingly.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.320‑‑‑Punishment for "Qatl‑i‑Khata" by rash or negligent driving‑‑­Section 320, P.P.C. does not admit for its attraction a qualification that a person should die on the road on account of accident, which is against law and is not contained in any of the provisions of the Penal Code‑‑‑Only ingredient is "Qatl‑i‑Khata" by rash and negligent act‑‑‑Consideration of being on a road on foot or inside a vehicle is not there and should not be read into the law.

(e) Evidence‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Principle‑‑‑If no finding is given with regard to the truthfulness or otherwise of a witness,. his statement has to be accepted with regard to the truthfulness or otherwise of a witness.

Sh. Muhammad Naeem, Advocate Supreme Court for Appellant.

K.G. Sabir, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondents Nos.2 & 3.

Date of hearing: 13th and 14th March, 2001.

2001 S C M R 1420

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Abdul Hameed Dogar

and Maulana Muhammad Taqi Usmani, JJ

SAJJAD AHMAD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.7(S) of 1999, decided on 9th February, 2001.

(On appeal from the judgment dated 10-12-1998 -of the Federal Shariat Court passed in Crl. Appeal No.844 of 1998).

Zina (Enforcement of Hudood) Ordinance (VII of 1979)----

----Ss.10(3) & 10(3)/18---Appraisal of evidence---Three eye-witnesses having no ill-will or any grudge against the accused had fully implicated him in the commission of the offence and their evidence could not be discarded for the petty reasons given by the Trial Court---Defence plea that the girl herself wanted to marry the accused and on his denial he was roped in the case was absurd on the face of it---Occurrence, thus, was proved to have taken place---Benefit of doubt with regard to the actual act of Zina could be extended to the accused in the light of the doubtful nature of the report of the Lady Doctor about the hymen of the girl---Possibility existed in -the circumstances of the case that the accused could not have succeeded in the penetration necessary for making the Offence of Zina and the offence might not have exceeded an attempt---Conviction of accused under S. 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was consequently converted , into S. 18 read with S. 10(3) of the said Ordinance and he was sentenced thereunder to undergo five years' R.I. with benefit of S. 382-B, Cr.P.C.---Appeal was disposed of accordingly.

PLD 1985 SC 11; PLD 1999 SC 1063; 1990 SCMR 886; PLD 1985 SC 305 and 1985 SCMR 1338 ref.

Habibul Wahab-ul-Khairi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for- Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for Respondent No. 1.

M. Rab Nawaz Noon, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Respondent No.2.

Date of hearing: 12th January, 2001.

2001 SCMR 1423

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry

and Rana Bhagwan Das, JJ

Mrs. BUKHTAWAR‑‑‑Petitioner

Versus

ABDUL MAJEED through Legal Heirs

and others‑‑‑Respondents

Civil Petition No. 171‑K of 2000, decided on 23rd October, 2000.

(On appeal from the judgment dated 18‑2‑2000 of the High Court of Sindh passed in C.P. No. S‑8 of 1994).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Past and closed transaction‑‑‑Petitioner claimed her right over a portion of property which had already. been transferred in year 1968, in the name of the respondents Petitioner applied to the Authorities in the year .1993, application of the a petitioner was allowed and disputed portion of the property was transferred in favour of the petitioner‑‑‑High Court, in Constitutional jurisdiction set aside the order of the Authorities‑‑‑Validity‑‑‑Property having stood transferred as back as 18‑1‑1968, the same had become past and closed transaction and no proceedings with regard to its correctness or otherwise could be initiated‑‑‑Findings of High Court were not open to any exception‑‑‑Leave to appeal was refused.

M.M. Aqil, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd October, 2000.

2001 SCMR 1425

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

THE COLLECTOR OF SALES TAX &

CENTRAL EXCISE (WEST)‑‑‑Petitioner

Versus

Messrs IMPERIAL PAINT & VARNISH WORKS

PRIVATE LIMITED‑‑‑Respondent

Civil Petition No.486‑K of 2000, decided on 23rd October, 2000.

(On appeal from the judgment dated 15‑8‑2000 of the High Court of Sindh, Karachi in Special Excise Appeal No. 14 of 2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3) & 190‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Factual controversy‑‑‑Non‑compliance of order of Supreme Court‑‑‑Authorities initiated fresh proceedings against the respondent‑‑ ‑Instead of complying with the order passed by Supreme Court such proceedings were assailed before High Court in Constitutional petition which was decided in favour of the respondent‑‑‑Validity‑‑‑Authorities were legally bound to act in aid of the verdict rendered by Supreme Court as the same was binding on them‑‑­Where the direction of Supreme Court was not complied with, such party was not entitled to exercise of discretion in his favour, more particularly when factual controversies could neither be raised nor adjudicated upon by Supreme Court‑‑‑No question of law having been raised before Supreme Court, interference with the exercise of discretion try High Court was declined by Supreme Court in its appellate jurisdiction‑‑‑Leave to appeal was refused.

Abdul Saeed Khan Ghori, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing; 23rd October, 2000.

2001 SCMR 1428

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

GENERAL MANAGER, STR‑11 SOUTH KARACHI

and 3 others‑‑‑Petitioners

Versus

Syed MUHAMMAD BAQAR ZAIDI‑‑‑Respondent

Civil Petition No.73‑K of 2000, decided on 6th July, 2000.

(On appeal from the order dated 3‑12‑1999 of the High Court of Sindh, Karachi passed in C. P. No. 1622 of 1998).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Petition for leave to appeal‑‑‑Observation by High Court‑‑­Where the observation did not impose any bar on the initiation of action based on law, fairplay and equity, leave to appeal was refused.

M. Umar Quraishi, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 6th July, 2000.

2001 SCMR 1429

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

RAEES AHMED ‑‑‑Petitioner

Versus

BDUL SHAFIQ and others‑‑‑Respondents

Civil Petition No.366‑K of 2000, decided on 25th October, 2000.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 13‑5‑2000 passed in H.C.A. No. 179 of 1996).

Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Condonation of delay‑‑‑Time‑barred appeal‑‑‑Effect‑‑‑Where the delay was not satisfactorily explained, the petition was dismissed without saying anything about the merits‑‑‑Leave to appeal was refused.

K.A. Wahab, Advocate‑on‑Record for Petitioner.

A.A. Siddiqui, Advocate‑on‑Record for Respondents Nos.1 to 3, 5 and 6.

Date of hearing: 25th October, 2000.

2001 SCMR 1430

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Rana Bhagwan Das, JJ

Mst. FARHANA RIAZ‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petition No.346‑K of 2000, decided on 20th November, 2000.

(On appeal from the judgment/order of Sindh High Court, Karachi, passed in C.P. No.597 of 2000, dated 10‑5‑2000/11‑5‑2000).

(a) Educational institution‑‑‑

‑‑‑‑ Prospectus of medical college‑‑‑Vires of the prospectus‑‑‑Provisions of prospectus being founded on the rules and regulations framed by the Pakistan Medical and Dental Council for maintaining high standard of medical education in the country such provisions of the prospectus were intra vires the Constitution.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.185(3)‑‑‑Educational institution‑‑‑Failure to pass first professional examination of M.B.,B.S. in four chances‑‑‑High Court dismissed Constitutional petition of the candidate on the ground that after availing of four chances as provided in the rule, the candidate must vacate the seat for other deserving candidate‑‑‑Validity‑‑‑No indefinite licence could be granted to a student of professional course of studies to clear the same which could adversely affect ever declining standard of education in the country‑‑‑High Court did not commit any error of law in dismissing the Constitutional petition of the candidate‑‑‑Leave to appeal was refused.

Mst. Fabiha Pareen v, People's Medical College for Girls PLD 1999 Karachi 394 ref.

Zaki Muhammad, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 20th November, 2000.

2001 SCMR 1432

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Rana Bhagwan Das, JJ

GOVERNMENT OF SINDH ‑‑‑ Petitioner

Versus

KHALIL‑UR‑REHMAN KHAN‑‑‑Respondent

Civil Petition for Leave to Appeal No.492‑K of 2000, decided on 21st November, 2000.

(On appeal from the judgment dated 4‑6‑2000 of the High Court of Sindh passed in C.P.D. No.563 of 1998).

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)‑‑‑‑

‑‑‑‑Art. 9‑‑‑Constitution of Pakistan 11973), Art.185(3)‑‑‑Order passed by Ombudsman‑‑‑Effect of‑‑‑Authorities were directed by Provincial Ombudsman to pay rent to the respondent whose property was under the use of the Authorities and failure would make the Authorities liable to be evicted‑‑‑Such order of the Ombudsman was upheld by High Court‑‑­Contention of the Authorities was that the proceedings before the Ombudsman relating to eviction and even direction for payment of arrears of rent were misconceived and the order was void ab initio and of no legal effect‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider the contention raised by the Authorities.

Suleman Habibullah, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 21st November, 2000.

2001 SCMR 1434

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

AFZAL AHMAD QURESHI‑‑‑Petitioner

Versus

MURSALEEN‑‑‑Respondent

Civil Petition No. 176‑K of 2000, decided on 11th July, 2000.

(On appeal from the judgment dated 17‑2‑2000 of the High Court of Sindh, Karachi, passed in F.R.A. No.707 of 199b8).

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑Ejectment proceedings‑‑‑Title of property‑‑‑Determination‑‑­Jurisdiction of Rent Controller‑‑‑Scope‑‑‑In absence of relationship of landlord and tenant between the parties the question of disputed title or ownership of the property in dispute is to be determined by a competent Civil Court‑‑‑Such controversies do not fall within the jurisdictional domain of the Rent Controller.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S.15‑‑‑Ejectment proceedings‑‑‑Landlord and tenant, relationship of‑‑­Denial of such relationship by the tenant‑‑‑Effect‑‑‑Such issue being one of jurisdiction should be determined first‑‑‑Where there is no relationship the Rent Controller loses scision over lis and must stay his hands forthwith‑‑­Non‑establishment of the relationship does not attract the provisions of Sindh Rented Premises Ordinance, 1979.

PLD 1961 Lah. 601 and 1971 SCMR 82 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑Ss.2(f) & 15‑‑‑Term 'landlord'‑‑‑Applicability‑‑‑Ownership has nothing to do with the position of landlord‑‑‑Payment of rent by tenant and receipt thereof by landlord is sufficient to establish the relationship of landlord and tenant between the parties.

1983 CLC 2808 ref.

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant‑‑‑Landlord and tenant, relationship of‑‑‑Proof--‑‑Non‑production of any document by landlord to prove such relationship-‑‑‑Effect‑‑‑When the landlord had not established his position as landlord beyond reasonable doubt, Rent Controller could not decide the question of relationship of landlord and tenant against the tenant‑‑‑Landlord had neither produced any tenancy agreement nor any evidence in writing showing that the rent was being paid to him‑‑‑Neither any counterfoil of receipt Dr any letter from the tenant or any notice nor any other document was produced by the landlord‑‑­Oral version of landlord was not sufficient to hold that relationship of landlord and tenant existed between the parties‑‑--High Court had rightly accepted the appeal of the tenant and order of Rent Controller was set aside‑‑‑Leave to appeal was refused.

1983 CLC 613 ref.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑‑

‑‑‑‑S.15‑‑‑Ejectment of tenant ‑‑‑Ownership‑‑‑Proof of‑‑‑House Building Finance Corporation had no authority to confer ownership/possession of property in‑ dispute in favour of landlord.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 11th July, 2000.

2001 SCMR 1437

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Deedar Hussain Shah and Hamid Ali Mirza, JJ

NAZAR MOORAJ through Legal Heirs‑‑‑Petitioner

Versus

IFTIKHAR HUSSAIN through Legal Weirs‑‑‑Respondent

Civil Petition No. 144‑K of 1999, decided on 31st August, 2001.

(On appeal from the judgment of the High Court of Sindh dated 11‑1‑1999 passed in R.A. No.263 of 1987).

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art.185(3)‑‑‑Appeal to Supreme Court‑‑‑Concurrent findings of fact by the Courts below‑‑‑Dispute was with regard to allotment of suit property by Settlement Authorities‑‑‑Validity‑‑‑Three concurrent findings of fact recorded by Trial on Court, Lower Appellate Court and High Court were available on record‑‑‑Courts below had properly appreciated the evidence on record‑‑‑Supreme Court did not find any misreading or non‑reading in the evidence or any jurisdictional error in the judgment and the same was unexceptionable‑‑‑Leave to appeal was refused.

Annada Mohon Roy Chowdhury v. Kina Das (1923) CWN 66 and Ayyagari Venkata Suryanarayana v. Makka Venku Naidu (1926) 97 IC 253 ref.

Iqbal Kazi, Senior Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioners.

M.G. Dastgir, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Respondents.

Date of hearing: 31st August, 2000.

2001 SCMR 1441

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Rana Bhawan Das. JJ

Miss HERA ‑‑‑Petitioner

Versus

Mst. SHAHNAZ FARZANA and 2 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.386‑K of 2000, decided on 20th November, 2000.

(On appeal from the judgment/order dated 7‑7‑2000 of the High Court of Sindh, Hyderabad Circuit Bench passed in C. P. No. S‑175 of 2000).

Islamic Law‑‑‑

‑‑‑‑ Constitution of Pakistan (1973),. Art. 185(3)‑‑‑Custody of minor‑‑­Unclean hands‑‑‑Order passed by Court‑‑‑Non‑compliance‑‑‑Effect‑‑‑Dispute was regarding the custody of the minor‑‑‑Despite the fact that High Court had directed the father of the minor to hand over the custody to her mother, he did not comply with the direction‑‑‑Matter of custody had also been decided against the father‑‑‑Father, in order to defy the orders, had filed the petition for leave to appeal through the petitioner (minor herself)‑‑­Validity‑‑‑Father of the petitioner (minor) did trot comply with the various orders` of Guardian Court‑‑‑Father; thus, having not come to the Court with clean hands, not availed the alternative remedy before approaching the High Court leave to appeal to Supreme Court was refused.

S.M. Abbas, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th November, 2000.

2001 SCMR 1443

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and

Hamid Ali Mirza, JJ

MUHAMMAD SIDDIQI through Attorney‑‑‑ Petitioner

Versus

Messrs T.J. IBRAHIM & COMPANY

and others‑‑‑Respondents

Civil Petition No.382‑K of 1999, decided on 23rd August, 2000.

(On appeal from the order dated 15‑4‑1999 of the High Court of Sindh, Karachi in C.M.A. No. 1880 of 1997 in J. Misc. No. l of 1989).

(a) Benami transaction‑‑

‑‑‑‑ Onus to prove‑‑‑Initial burden of proof is on the party who alleges that an ostensible owner is Benamidar.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

(b) Benami transaction‑

‑‑‑‑ Failure to prove source of money‑‑‑Non‑appearance of petitioner to prove the source‑‑‑Disputed property was alleged two be Benami transaction‑‑­Respondent had laid his claim that the suit property was Benami owned by the company as the same was purchased through one of the relatives of the petitioner for which amount was paid from the funds of the company‑‑­Petitioner claimed that the property was purchased by him but he did not appear and could not produce evidence with regard to source of funds with which the property was said to have been purchased‑‑‑Claim of the petitioner was rightly dismissed by High Court‑‑‑Leave to appeal was refused‑‑­Constitution of Pakistan (1973), Art. 185(3).

Raja Haq Nawaz, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Shafi Muhammadi, Joint Liquidator (present).

Date of hearing: 23rd August, 2000.

2001 SCMR 1446

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Abdul Hameed Dogar, JJ

SHAFT MUHAMMAD MUGHAL‑‑‑Appellant

Versus

SECRETARY, ESTABLISHMENT DIVISION

and others‑‑‑Respondents

Constitutional Petition for Leave to Appeal No.39‑Q of 2000, decided on 17th July, 2000.

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑SA(1)‑‑‑Civil Servants (Appeal) Rules, 1977, R.4(2), proviso II‑‑‑Fitness of civil servant‑‑‑Determination‑‑‑Service Tribunal, jurisdiction of‑‑‑Scope‑‑­Service Tribunal had no jurisdiction against order or decision of Departmental Authority determining the fitness or otherwise of a person for promotion to higher post or grade.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑SA(1)‑‑‑Civil Servants (Appeal) Rules, 1977, R.4(2), proviso II‑‑‑Expression 'eligibility' and 'fitness'‑‑‑Scope‑‑‑Fitness of civil servant‑‑­Determination‑‑‑Service Tribunal, jurisdiction of‑‑‑Vigilance report, basis of refusal for promotion‑‑‑Validity‑‑‑Expression 'eligibility' and 'fitness' were distinct and were meant for different purposes‑‑‑Legislature in its wisdom had left the issue of fitness at the discretion of the Competent Authority for the obvious reason that the ‑ Authority looking background and the performance would be in a better position to determine the issue of fitness than the Tribunal or the Court‑‑‑General reputation of the civil servant in the past was not satisfactory, rather it was poor‑‑‑Where there was no material brought on record to substantiate that the vigilance report was false, Supreme Court declined to interfere with the orders of the Authorities‑‑‑Leave to appeal was refused.

Muhammad Aslam Chishti, Advocate Supreme Court and S.A.M.

Quadri, Advocate‑on‑Record for Appellant.

Nemo for Respondents.

Date of hearing: 17th July, 2000.

2001 SCMR 1450

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Deedar Hussain Shah

and Hamid Ali Mirza, JJ

MUHAMMAD AMIN BHATTI through Attorney‑‑‑Petitioner

Versus

TAHIR SHEIKHA‑‑‑Respondent

Civil Petition No.739‑K of 1999, decided on 9th August, 2000

(On appeal from the judgment dated 17‑10‑1999 of the High Court of Sindh, Karachi in F.R.A. No. 16 of 1995).

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

‑‑‑‑S.15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Default in monthly rent‑‑‑Deposit of rent in miscellaneous rent case‑‑‑Concurrent findings of fact by the Courts below‑‑‑Rent Controller allowed eviction of tenant 'as he failed to pay the rent to the landlord‑‑‑Order of Rent Controller was upheld by the High Court‑‑‑Validity‑‑‑Payment of rent in contravention of the provisions of law amounted to wilful default in payment of rent‑‑‑Tenant failed to point out from the evidence on record any misreading or non‑reading of evidence or any legal infirmity in the orders passed against him‑‑.‑Concurrent findings of fact of two Courts below were based on proper appraisal of evidence, and therefore, no interference was called for by Supreme Court‑‑‑Leave to Appeal was refused.

Abdul Aziz v. Abdul Ghani 1986 SCMR 1857; Taher Ali v. Miran Bux Karam Bux 1989 SCMR 403; Inayat Ullah v. Zahoor‑ud‑Din 1987 SCMR 1313 and Najmuddin v. Zamir Ahmed PLD 1982 Kar. 188 distinguished.

Muhammad Azam v. Inayat Shah 1998 SCMR 1356; Waris Khan v. Zainab Nisar 1997. SCMR 526; Hajiani Aisha v. Abdul Waheed PLD 1989 SC 489; Alima Ahmad v. Amir Ali PLD 1984 SC 32; Abdul Rasheed v. Saleh Muhammad 1980 SCMR 506 and Waris Ali Tirmizi v. Liaqat Begum 1980 SCMR 601 ref.

Imran Ahmed, Advocate Supreme Court for Petitioner.

Shafaat Hussain, Advocate Supreme Court for Respondent.

Date of hearing: 9th August, 2000.

2001 SCMR 1453

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mimi, JJ

NISAR AHMED KHOSO‑‑‑Petitioner

Versus

P.I.A.C. and others‑‑--Respondents

(On appeal from the judgment of the Federal Service Tribunal dated 19‑2‑2000 passed in Appeal No. 10150 of 1998).

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

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), An, 212(3)‑‑‑Termination from service‑‑‑Audi alteram parterrl, principle of‑‑‑Employee of statutory corporation‑‑‑Appeal before Service Tribunal‑‑‑Termination without any show‑cause notice‑‑‑Leave to appeal was granted by Supreme Court to consider, whether Service Tribunal did not consider the established principle of audi alteram partem and on such score alone the judgment was liable, to be set aside; and whether the Tribunal passed judgment without applying its judicial mind to the facts and law involved and based its finding on extraneous facts wholly irrelevant to the issue involved in the appeal.

Shaft Muhammadi, Advocate Supreme Court for Petitioner.

Mumtaz Shaikh, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents.

Date of hearing: 25th August, 2000.

2001 SCMR 1455

[Supreme Court of Pakistan]

Present: Rana Bhagivan Das, Deedar Hussain Shah

and Hamid Ali Mirza, JJ

Messrs INTERFURNS through Managing Partner‑‑‑Appellant

Versus

Mst. AMNA and 9 others‑‑‑Respondents

Civil Appeal `No.973 of 1999, decided on 4th August, 2000.

(On appeal from the judgment dated 20‑4‑1999 of the High Court of Sindh, Karachi in F.R.A. No.90 of 1992).

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

‑‑‑‑S.15‑‑‑Making of structural changes in premises by the tenant without permission of landlord‑‑‑Effect‑‑‑Contention of the tenant was that as a result of disputed constructions, alteration and repairs not only the material value and utility of the premises had been enhanced but that some of these were necessary for the sustenance of the existing structure and use of the premises­ ‑‑Leave was granted by Supreme Court to consider the contentions raised by the tenant.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑-- Ejectment of tenant ‑‑‑-- Concurrent findings of fact by the Courts below‑‑‑Making of structural changes in premises by the tenant ‑‑‑Ejectment application of landlord was allowed by Rent Controller on the ground that the tenant had made such changes without permission of the landlord‑‑‑-- Order of Rent Controller was upheld by High Court‑‑‑-- Validity‑‑‑-- Both the Courts below had arrived at the conclusion after proper assessment of evidence on record that the tenant carried out the additions and alterations of permanent nature in violation of the terms and conditions of the tenancy agreement between the parties for which no written permission was obtained‑‑­Concurrent findings arrived at by the two Courts below were not based on misreading or non‑reading of material evidence and the same were based on proper appreciation and construction of evidence on record‑‑‑Supreme Court declined interference‑‑‑Leave to appeal was refused.

Alif Din v. Khadim Hussain 1980 SCMR 767; Umar Din v. Fazal Muhammad 1980 SCMR 906; Fayyaz Ali Khan v. Muhammad Sharif 1981 SCMR 545; Muhammad Anwar Sipra v. Muhammad Din PLD 1981 SC 491 and Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689 ref.

Khalilur Rehman, Advocate Supreme Court for Appellant.

Abdul Rahitn Kazi, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents.

Date of hearing: 4th August, 2000.

2001 SCMR 1459

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

SIRAJ AHMED and others‑‑‑Petitioners

Versus

PROVINCE OF SINDH and others‑‑‑Respondents

Civil Petition No.647‑K of 1999, decided on 16th August, 2000.

(On appeal from the judgment of the High Court of Sindh Bench at Sukkur dated 1‑9‑1999 passed in Civil Revision No.32 of 1997).

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.12‑‑‑Limitation‑‑‑Computation of period of summer vacations‑‑‑Where the last day for filing appeal was during summer vacations, appeal under the provisions of law could have been filed on first reopening day.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.3‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal‑‑‑Limitation‑‑Lower Appellate Court dismissed the appeal being time‑barred‑‑‑Revision against judgment of Lower Appellate Court was dismissed by High Court‑‑‑Contention of the petitioner was that before dismissing the appeal being time‑barred the petitioner was not heard‑‑­Validity‑‑‑Where the petitioner failed to appear and submit his case before Lower Appellate Court, he should blame himself, as vested right was created in favour of the respondents which could not be taken away on the ground that the petitioner was not heard‑‑‑No infirmity with tile order passed by High Court having been found, Supreme Court declined to interfere‑‑‑Leave to appeal was refused.

Hakim Muhammad Boota v. Habib Ahmed PLD 1995 SC 153 and Nasir Raza Jafri v. Macter Pharmacutical (Pvt.) 'Ltd. PLD 1994 SC 147 (sic) ref.

G.M. Qureshi, Advocate Supreme Court and Naraindas C. Motiani, Advocate‑on‑Record for Petitioners.

K.B. Bhutto, Advocate Supreme Court for Respondent No.5.

Sarwar Khan, Additional Advocate‑General, Sindh for the Official Respondents.

Date of hearing: 16th August, 2000.

2001 SCMR 1461

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and

Javed Iqbal, JJ

THE STATE through Advocate‑General

N.‑W.F.P., Peshawar‑‑‑Appellant

Versus

NAEEMULLAH KHAN‑‑‑Respondent

Criminal Appeals Nos. 188 to 191 of 1998, decided on 30th March. 2001.

(On appeal from the judgment of the Peshawar High Court. Abbottabad Bench dated 17‑10‑1997 passed in Criminal Appeals Nos.52 to 55 of 1996).

(a) Hazara Forest Act (III of 1936)‑‑‑

‑‑‑‑Ss. 9/26‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, inter alia, whether the phraseology "all proceedings relating to offences and criminal liability under the Act shall be governed by the Code of Criminal Procedure, 1898" employed in S. 46 of the Hazara Forest Act, 1936, was wide enough to include the right of appeal against the acquittal of an accused charged with offences under the provisions of the Act, and therefore, High Court had fallen into error to hold that there was no right of appeal against an order of acquittal of an accused.

(b) Hazara Forest Act (III of 1936)‑‑‑

‑‑‑‑S.46‑‑‑"Proceedings"‑‑‑Connotation‑‑‑Word "proceedings" is a comprehensive expression which includes every step taken, towards further progress of a cause in Court or Tribunal, from its commencement till its disposal‑‑‑Word "proceedings" in legal terminology means the instituting or carrying on of an action of law‑‑‑Generally, a "proceeding" is the form and manner of conducting judicial business before a Court ‑or Judicial officer, including all possible steps in an action from its commencement to the execution of a judgment and in a more particular sense it is any application to a Court of justice for aid in enforcement of rights, for relief, for redress or injuries, or damages or for any remedial object‑‑‑-- Proceedings in its general use comprehends every step taken or measure adopted in prosecution or defence of an action.

Chamber English Dictionary, 7th Edn.; Legal Thesaurus, Regular Edition by William C. Burton; Law Lexicon, Vol.‑Ii; American Publication Words and Phrases, p.83; Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others PLD 1968 Lah. 1455; R. Darbarilal v. Rajendra Kumar AIR 1970 Madh. Pra. 1; Ghulam Muhammad v. The State PLD 1979 Quetta 1: Emperor v. Fazlur Rehman and others AIR 1937 Pesh. 52; Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 and Wazir Laiq v. The State and others PLD 1987 SC 35 ref.

(c) Hazara Forest Act (III of 1936)‑‑‑

‑‑‑‑S.46‑‑‑Right of appeal provided against conviction as well as against acquittal of accused‑‑‑Section 46 of the Hazara Forest Act, 1936, has to be construed liberally as right of appeal has not been expressly provided by the said Act to both the convict and the acquitted persons and in such circumstances if the right of appeal is negated or excluded from the word "proceeding" it would be giving it a harsh and narrow meaning/interpretation and would amount to the denial of right of appeal to the convict, which would not only be unconstitutional but also un‑Islamic‑‑‑Word "proceeding". therefore, would be construed in wider prospect in view of the nature and scope of the Act to include the right of appeal to both the convict and the acquitted persons, as such construction would be most befitting to the scheme of the enactment appeal is a continuation of the trial/judicial proceedings before the High Court to reconsider the verdict of the lower Court on legal and factual aspects, as such, appeal being a step towards the objective to be achieved, is included in the phrase "all proceedings relating to offences and criminal liabilities under this Act" used in S. 46 of the said Act‑‑?Appeal/revision can, therefore, be filed against conviction and acquittal as the case may be, as provided by the Code of Criminal Procedure, 1898.

(d) Hazara Forest Act (III of 1936)‑‑‑

‑‑‑Ss. 9/26 & 46‑‑‑Criminal Procedure Code (V of 1898), S. 417(l)‑ ‑‑Appeal against acquittal‑‑‑State appeal against acquittal of accused was competent in view of S. 46 of the Hazara Forest Act, 1936‑‑‑Order of acquittal was self‑contradictory as on the one hand. the Magistrate had acquitted the accused on the ground that the evidence was not enough to warrant his conviction and on the other hand he had imposed fine of Rs.300 per cut tree upon the owners, who were not even heard and provided defence opportunity‑‑‑Courts below had also not properly appreciated the evidence on record and the conclusions drawn by them were not sustainable in law‑‑‑Judgments of lower Courts were consequently set aside and the case was remanded to trial Magistrate for retrial in accordance with law.

Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Bazlur Rehman and others PLD 1960 Dacca 200; State of Mysore v. Gurupadappa Appayyappa Kardesai AIR 1961 Mys. 257; Satyahari v. The State AIR 1953 Cal. 661; Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1; Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Muhammad Naseem Khan and another v. Government of N.‑W.F.P. and others 1990 CLC 1693; Habib Bank Limited v. The State 1993 SCMR 1853; State through Advocate‑General, N.‑W.F.P. Peshawar v. Naeemullah Khan 1999 SCMR 143; Chamber's English Dictionary, 7th Edn.; Legal Thesaurus, Regular. Fdn., by William C. Burton; Law Lexicon, Vol.‑II; American Publication Words and Phrases, p.83; Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others PLD 1968 Lah. 1455; R. Darbarilal v. Rajendra Kumar AIR 1.970 Madh. Pra. 1; Ghulam Muhammad v. The State PLD 1979 Quetta 1; Emperor v. Fazlur Rehman and others AIR 1937 Pesh. 52: Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 and Wazir Laiq v. The State and others PLD 1987 SC 35 ref.

(e) Words and phrases‑‑‑

‑‑‑‑"Proceedings"‑‑‑Connotation.

Chamber's English Dictionary 7th Edn.; Legal Thesaurus, Regular Edition by William C. Burton; Law Lexicon, Vol.‑II; American Publication Words and Phrases, p.83; Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others PLD 1968 Lah. 1455; R. Darbarilal v. Rajendra Kumar AIR 1970 Madh. Pra. l; Ghulam Muhammad v. The State PLD 1979 Quetta 1; Emperor v. Fazlur Rehman and others AIR 1937 Pesh. 52; Muhammad Farash Khan v. Nishadar Jan PLD 1983 SC (AJ&K) 43; Karim Bibi v. Hussain Bakhsh PLD 1984, SC 344 and Wazir Laiq v. The State and others PLD 1987 SC 35 ref.

Rashidul Haq Qazi, Additional Advocate‑General, North‑West Frontier Province for Appellant.

Raja Muhammad Anwar, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.

Dates of hearing: 17th and 18th January. 2001.

2001 S C M R 1474

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal

and Javed Iqbal, JJ

FARMANULLAH ‑‑‑ Appellant

Versus

QADEEM KHAN and another‑‑‑Respondents

Criminal Appeal No.267 of 1995, decided on 21st March, 2001.

(On appeal from the judgment of the Peshawar High Court, dated 7‑12‑1992 passed in Cr. Case No.71 of 1991).

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46(1)‑‑‑Dying declaration, when can be basis for conviction‑‑­Principles‑‑‑No specified forum is available before whom dying declaration is required to be made; there is no bar that it cannot be made before a private person; there is no legal requirement that the declaration must be read over or it must be signed by its maker; it should be influence free; in order to prove such declaration the person by whom it was recorded should be examined; such declaration becomes substantive evidence when it is proved that it was made by the deceased; corroboration of dying declaration is not a rule of law, but requirement of prudence and such declaration when proved by cogent evidence can be made a base for conviction.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46(1)‑‑‑Dying declaration‑‑‑Corroboration‑‑‑Dying declaration once believed is not legally required to be supported by independent corroboration, specially in the absence of allegation of the substitution of real culprit with the accused.

Niamat Ali v. The State 1981 SCMR 61 ref.

(c) Penal Code (XLV of 1860)---‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Appeal against acquittal o: accused by High Court‑‑‑Injured in his dying declaration had narrated the incident in a simple and straightforward manner who was not sure at that moment that he would remain alive‑‑‑Dying declaration was fully corroborated by medical evidence surrounding circumstances, motive and confidence inspiring eye account‑‑‑Record did not show that the dying declaration was the result of consultation or tutoring, which had been made by the deceased voluntarily without any probability of promptitude as to the cause of his death and the same had been reduced into writing by the police officer having no enmity or friendship with .any of the parties‑‑‑Eye‑witnesses had assigned a specific role of firing to the accused furnishing the details of the episode in a simple and straightforward manner which had not been considered by the High Court in its true perspective‑‑‑Each and every variation in the evidence could not affect or impair the intrinsic value of the evidence and all those variations which did not have any substantial bearing on the salient features of the prosecution case could be safely ignored as they would not affect the credibility of the witnesses‑‑‑Prosecution had established the guilt of accused beyond any shadow of doubt‑‑‑High Court had no lawful justification to interfere with the well‑reasoned judgment of Trial Court‑‑‑High Court's judgment acquitting the accused was consequently set aside by Supreme Court and that of Trial Court was restored whereby death sentence was awarded to accused under S. 302, P.P.C.‑‑‑Appeal was accepted accordingly.

Kashif‑ur‑Rehman v. The State 1996 PCr.LJ 1689; Abdul Razik v. The State PLD 1965 SC 151; Niamat Ali v. The State 1981 SCMR 61; Hazara v. The State 1976 PCr.LJ 106; Zarif v. The State PLD 1977 SC 612; Asiq v. The State 1970 PCr.LJ 373; Chanderasekar v. The King 1937 AC 220; Guruswamt v. Tevar AIR 1940 Mad. 196; Khushal Rao v. The State of Bombay AIR 1958 SC 22; Taj Muhammad v. The State PLD 1960 Lah. 723; Muhammad Khan v. The State PLD 1961 Lah. 939; Abdul Raziq v. The State PLD 1964 Pesh. 67; Tawaib Khan v. The State PLD 1970 SC 13; Ekabbar Ali v. The State 1971 PCr.LJ 275; Abdul Hameed v. The State 1986 SCMR 11; Malik Aman v. The State 1986 SCMR 17; Muhammad Shah v. The State PLD 1984 SC 278; Josiah Patrik Wise v. Kishen Koomar Bobs (PC) (1987) 4 MIA 201; Allah Bakhsh v. Ahmed Din 1971 SCMR 462; Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias Bhala v... The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274; Muhammad Rafique v. The State 1977 SCMR 457; Roshan v. The State PLD 1977 SC 557 and Mushtaq alias Shaman v. The State PLD 1995 SC 46 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Appreciation of evidence‑‑‑Dying declaration‑‑‑Evidentiary value‑‑‑Scope‑‑‑Sanctity is attached to dying declaration by the statute which is to be respected unless clear circumstances are brought out showing the same to be not reliable‑‑‑No absolute rule existed that dying declaration cannot be made sole basis of conviction unless corroborated.

Zarif v. The State PLD 1977 SC 612 ref

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Appreciation of evidence‑‑‑Dying declaration‑‑‑Dying declaration made soon after the incident, or at a time when the deceased expected death, or at a time by which the deceased could not have consulted others, or received hints from others, will ordinarily be deserving great weight‑‑‑If the contents of the dying declaration appear to be true, having been made without any exaggeration and without making an attempt to rope in false persons, dying declaration will be worth reliance.

Asiq v. The State 1970 PCr.LJ 373 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Discrepancies‑‑‑Minor discrepancies in the deposition of prosecution witnesses do not furnish any good ground for disbelieving independent and disinterested witnesses.

Allah Bakhsh v. Ahmed Din 1971 SCMR 462 ref.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑‑Mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground‑‑‑Interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused.

Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias Bhala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734 and Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Mere disinterestedness of a witness does not prove that he has come forward with a true statement‑‑ Such statement itself has to be scrutinised thoroughly to find out if in the circumstances it is reasonable, probable or plausible and can be relied upon‑‑‑ Principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible, would lead to very dangerous consequences.

Muhammad Rafique v. The State 1977 SCMR 457 ref.

(i) Penal Code (XLV of 1860)‑‑‑ ‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Variations in evidence‑‑‑Each and every variation in the evidence does not affect or impair the intrinsic value of evidence‑‑‑All those variations which do not have any substantial bearing on the salient features of prosecution case, can be safely, ignored as it cannot affect the credibility of the witnesses.

Roshan v. The State PLD 1977 SC 557 and Mushtaq alias Shaman v. The State PLD 1995 SC 46 ref.

(j) Witness‑‑‑

-----Interested witness"‑‑‑Who is‑‑‑Interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused.

Saeed Baig, Advocate Supreme Court and Muhammad Zahoor Qureshi Azad, Advocate‑on‑Record (absent) for Appellant.

Sardar M. Ishaque, Advocate Supreme Court for Respondent No. 1.

Rashidul Haq Qazi, Additional Advocate‑General, N.‑W.F.P. for the State.

Date of hearing: 18th January 2001.

2001 SCMR 1488

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and

Mian Muhammad Ajmal, JJ

ABDUL RAHIM‑‑‑-- Petitioner

Versus

MUKHTAR AHMAD and 6 others‑‑‑Respondents

Civil Petition for Leave to Appeal No''1084‑L of 2000, decided on 6th November, 2000.

(On appeal from the judgment of the Lahore High Court, Multan Bench Multan dated 20‑3‑2000 passed in C.R. No.430‑D of 1986).

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.3‑‑‑Evidence‑‑‑Relationship of witness‑‑‑Validity‑‑‑Evidence of such witness cannot be brushed aside only because of his relationship, if otherwise it is disinterested and credible.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.202‑‑‑Power of attorney in lieu of consideration‑‑‑Selling the property subject‑matter of the power of attorney to a person closely related to the attorney without consulting the principal‑‑‑Validity‑‑‑Where the power of attorney was issued after receipt of any consideration from the attorney, principle laid down by Supreme Court in case titled Faqir Muhammad v. Pir Muhammad reported as 1997 SCMR 1811, was not applicable.

Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811 distinguished.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.202‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Revision‑‑‑Concurrent findings of fact by two Courts below‑‑‑Irrevocable power of attorney‑‑‑Attorney having interest in the property‑‑‑General Power of Attorney was executed in lieu of consideration‑‑‑Sale‑deed was executed by the Attorney without consulting. the principal and the sale‑deed was assailed by the principal in civil suit which was decreed by the Trial Court‑‑‑Appellate Court reversed the judgment of the Trial Court and the suit was dismissed‑‑‑High Court, in exercise of revisional jurisdiction, declined to interfere with the findings of Appellate Court‑‑‑Validity‑‑‑Where the principal had received certain payment and executed the Power of Attorney, such Power of Attorney was irrevocable‑‑‑Supreme Court declined to interfere with the concurrent findings of two immediate Courts below on the pure question of fact as the same did not suffer from any misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was refused.

Shumal Begum v. Gulzar Begum 1994 SCMR 818 and Faqir Muhammad v. Pir Muhammad 1997. SCMR 1811 distinguished.

M. Shamshir Iqbal Chughtai, Advocate Supreme Court for Petitioner.

Ch. Attaullah, Advocate Supreme Court for Respondents Nos. l ‑to 6.

Date of hearing: 6th November, 2000. .

2001 S C M R 1491

[Supreme Court of Pakistan)

Present: Saiduzzaman Siddiqui and

Nasir Aslam Zahid, JJ

MUHAMMAD HANIF‑‑‑Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and

others‑‑‑Respondents

Civil Petition No.559‑K of 1998, decided on 27th January 1999.

(On appeal from the order dated 15‑6‑1998 of the Sindh Service Tribunal, Karachi, passed in Appeal No. 102 of 1995).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑--‑S.4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal before Service Tribunal dismissed for non‑prosecution‑‑‑Failure to give any valid reason for restoration‑‑‑Application for restoration was filed after about one and a half years of dismissal of appeal‑‑‑Reason for delay was stated to be the illness of the civil servant who was not suffering from any disease which made him immobile for all practical purposes‑‑‑Civil servant failed to establish that there was no member of his family who. could contact his counsel or could post a letter to the counsel to find out the fate of the appeal‑‑‑Service Tribunal had rightly dismissed the application for restoration of appeal and the same did not call for interference by Supreme Court‑‑‑Leave to appeal was refused.

Muhammad Muzaffarul Haq, Advocate Supreme Court with Faizanul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th January, 1999.

2001 SCMR 1493

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Javed Iqbal and

Hamid Ali Mirza, JJ.

Mst. KANIZ FATIMA through Legal Heirs‑‑‑Appellant

Versus

MUHAMMAD SALIM

and 27 others‑‑‑Respondents

Civil Appeal No.433 of 1903, decided on 10th April, 2001.

(On appeal from the judgment of Lahore High Court, dated 1‑I 1‑1992, passed in Writ Petition No.437‑R of 1978).

(a) 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 to consider; whether it was competent to re‑open question of entitlement of the petitioners in respect of which there was final finding in the judgment of High Court passed in Constitutional petition; whether High Court could substitute its own judgment for that of Notified Officer which was‑ in accord with and in compliance with judgment of High Court passed in a specified Constitutional petition and whether the respondents kept on selling land during pendency of appeal/revision of the appellant and produced false certificate that no litigation was pending.

(b) Rehabilitation (Supplementary) Scheme No.2‑‑‑

‑‑‑‑Para. 24‑‑‑Rehabilitation Settlement Scheme, para. 20‑‑‑Allotment of land on temporary basis‑‑‑Confirmation of temporary allotment in favour of the appellant‑‑‑Disputed land was earlier allotted temporarily in favour of the appellant in the year 1953‑‑‑Land was subsequently allotted to the predecessor‑in‑interest of the respondents‑‑‑Notified Officer, under the provisions of para. 24 of Rehabilitation Supplementary Scheme No.2 read with para. 20 of Rehabilitation Settlement Scheme; had cancelled the allotment made in favour of the predecessor‑in‑interest of the respondents and confirmed the temporary allotment made earlier in favour of the appellant‑‑‑Such order passed by Notified Officer was reversed by the High Court‑‑Validity‑‑‑Order passed by the Notified Officer could not have been reversed by High Court in exercise of Constitutional jurisdiction‑‑‑Notified Officer had rightly confirmed the temporary allotment‑‑‑Order passed by the Notified Officer had no jurisdictional defect or any other legal flaw which could make the order unlawful or illegal‑‑‑Order passed by High Court was set aside and that of the Notified Officer was restored by the Supreme Court.

Bashir Ahmad v. Punjab University Academic Staff Association 1991 SCMR 377 ref.

(c) Displaced Persons (Land Settlement) Rules, 1959‑

‑‑‑‑R.6‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑‑Substituted service‑­‑Non‑issuance of notice on correct address‑‑‑Applicability of Civil Procedure Code, 1908‑‑‑Order 'of publication could be made by the Settlement Authorities in view of R.6 of Displaced Persons (Land Settlement) Rules, 1959 as the same provided direct publication‑‑‑Relevant provisions of C.P.C. were neither made applicable nor could be pressed into service.

(d) Rehabilitation Supplementary Scheme No.2‑‑

‑‑‑‑Para. 24‑‑‑Rehabilitation Settlement Scheme, para.20‑‑‑Temporary allotment, cancellation of‑‑‑Delayed confirmation of claim by Central Record Office‑‑‑Effect‑‑‑Where temporary allottee was not responsible for the delay and the allottee was found entitled for the land in question, cancellation of the temporary allotment could not be made without affording proper opportunity of hearing to the allottee.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Decision of controversial questions of fact‑‑‑Validity‑‑‑Such questions could not be decided by the High Court in exercise of answers as conferred upon it under Art. 199 of the Constitution. State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280 and State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. PLD 1983 SC 280 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Jurisdiction of High Court under Art. 199 is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding impugned action of Authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts.

Attaur Rehman Khan v. Dost Muhammad 1986 SCMR 598; Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt. 1981 SCMR 291; Mian Muhammad v. Government of West Pakistan 1968 SCMR 935; Zahid Hussain v. Dharmumal 1971 SCMR 110; Zuhra Begum v. Sajjad Hussain 1971 SCMR 697; Landale & Morgan (Pak.) Ltd. v. Chairman, Jute Board, Dacca 1970 SCMR 853; Mahboob Alain v. Secretary to Government of Pakistan 1969 SCMR 217; Umar Daraz v. Muhammad Yousaf 1968 SCMR 880 and Saghir Ali v. Mehar Din 1968 SCMR 145 ref.

(g) Constitution of Pakistan (1973)-----­

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Adequate remedy, non‑availing of‑‑­ Effect‑‑‑Where a particular statute, provides self‑contained machinery for determination of questions arising under the statute and law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by High Court is bound to produce a sense of distrust in statutory Tribunals‑‑‑Constitutional petition, without exhausting remedy provided by the statute, did not lie in circumstances.

Shahid Agency v. Collector of Customs 1989 CLC 1938; Ali Hussain v. Presiding Officer PLD 1989 Kar. 157; Bhagan v. The State PLD 1990 Quetta 41; Mojakkir Ali v. Regional Transport Authority PLD 1967 Dacca 6 and Azizur Rehman v. F.A.T.A. Development Corporation PLD 1988 Pesh. 9 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, invoking of‑‑‑ Pre‑conditions ‑‑­Scope‑‑‑Paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong‑‑‑Before a person can be permitted to invoke the discretionary power of a Court, it has to be shown that the order sought to be set aside has occasioned some injustice to the parties‑‑‑Where the order does not work any injustice to any party, rather the order cures a manifest illegality, then the extraordinary jurisdiction should not be allowed to be invoked.

Rehmatullah v. Hameeda Begum 1986 SCMR 1561; Rafique Alam v. Deputy Settlement Commissioner 1990 CLC 1346; Muhammad Baran v. Member (Settlement and Rehabilitation) PLD 1991 SC 691 and Raunaq Ali v. Chief Settlement Commissioner PLJ 1973 SC 42 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑‑High Court, jurisdiction of‑‑‑Scope‑‑‑Controversial question of fact, adjudication on which is possible only after full‑fledged evidence by the parties, such question can be determined only by the forums concerned‑‑‑Constitutional petition is not competent in such cases.

State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280 ref.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑III‑gotten gains‑‑‑Effect‑‑‑Relief in Constitutional jurisdiction being discretionary should not be granted in aid of retention of ill‑gotten gains.

Ch. Muhammad Hassan, Advocate Supreme Court and a Maqbool Ahmad, Advocate‑on‑Record (absent) for Appellants.

A.R. Shaukat, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 19th March, 2001.

2001 SCMR 1506

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and Tanvir Ahmed Khan, JJ

UNIVERSITY OF THE PUNJAB and another‑‑‑Appellants

Versus

Mst. SAMEA ZAFAR CHEEMA and 4 others‑‑‑Respondents

Civil Appeals Nos.1453/1454/1455/1456 of 1998, decided on 23rd February, 2001.

(On appeal from ‑the judgment dated 21‑1‑1997 passed by the Lahore High Court, Lahore in W. Ps. Nos.12109/12469/12107 and 11623 of 1995).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Educational institution‑‑‑Failure to clear M.B.B.S. first professional examination in four attempts‑‑‑Leave to appeal was granted by Supreme Court to consider that where a candidate was unable to avail a chance on account of circumstances beyond her control‑ the examination in which she could not appear would not be deemed to have been availed of by the candidate, therefore, she was entitled to the grant of another chance, therefore, the act of the Authorities in declining the candidate to appear in the examination was not sustainable under the law.

(b) Educational institution‑‑‑

‑‑‑‑Failure to pass M.B.B.S. first professional examination in four chances‑‑‑Expression 'four chances availed or unavailed‑‑‑Object and scope‑‑‑Candidates raised the plea of their illness and High Court in exercise of Constitutional jurisdiction allowed the candidates to be provided another chance‑‑‑Validity‑‑‑High Court had enlarged the scope of the phrase "four chances availed or unavailed" on unjustified ground‑‑‑Where a chance was not availed deliberately the candidate could not take advantage of his/her own unbecoming act of omission or‑commission to nullify the effect of the rule‑‑‑If the same was due to reasons beyond the control of the candidate, then that would fall within the ambit of the term 'unavailed'‑‑‑Object behind the phrase, was to enhance the status/standard of education on the one side and on the other side to provide a tangible guideline to effectively examine the aptitude of the candidates‑‑‑Four chances being more than enough to clear First Professional M.B.B.S. Examination but Where a candidate failed to do so, the reasonable conclusion would be that the candidate had no aptitude for medical education‑‑‑High Court having committed error in interpreting the phrase differently judgment passed by High Court was set aside by the Supreme Court.

Akhtar Ali Javed v. Principal, Quaid‑e‑Azam Medical College, Bahawalpur 1994 SCMR 532; Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101; Rana Saeed Ahmed v. The Controller of Examinations, Bahauddin Zakriya University, Multan 1996 SCMR 792; Sultana Khokhar v. University of the Punjab PLD 1962 SC 35 and Ms. Fabiha Parvez v. People's Medical College for Girls, Nawabshah and others PLD 1999 Kar. 394 ref.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Attributing artificial and unnatural meaning to modify scope of rule‑‑­Where the meaning and purpose of a rule is clear, an artificial or unnatural meaning cannot be attributed to enhance or to modify the scope of the rule‑‑­No word or clause of a rule can be treated as superfluous, nor beneficial construction can be resorted to if the words are quite clear and the clear words are decisive by themselves.

Dr. A. Basit, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellants.

Nemo for Respondents.

Date of hearing: 23rd February, 2001.

2001 SCMR 1510

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and

Iftikhar Muhammad Chaudhry, JJ

ABDUL HAQ BHATTI‑‑‑Petitioner

Versus

MUHAMMAD ASLAM and others‑‑‑Respondents

Criminal Original No.8‑L of 1999 in Civil Petition No. 1914‑L of 1998 and Criminal Original No.31‑L of 1999 in Civil Petition No.1785‑L of 1998, decided on 25th July, 2000.

(On appeal against the order dated 22‑4‑1999 passed by this Court in Civil Petitions Nos. 1914‑L of 1998 and 1785‑L of 1998).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 204‑‑‑Civil service‑‑‑Non‑implementation of the order of the Supreme Court‑‑‑Contempt of Court‑‑‑Petitioner had neither any genuine complaint to make to his own extent in relation to the implementation of the order of the Supreme Court in question nor he was even in a position to show that he had been constituted as an attorney of sorts by one person or

any number of such persons who had allegedly not received a lawful treatment to their cases for promotion in terms of the said order of the Supreme Court‑‑‑Petitions for contempt of Court, therefore, could not proceed any further at the instance of the petitioner and the same were dismissed accordingly.

Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner (in Crl. Org. No. 8‑L of 1999).

Hamid Khan, Advocate Supreme Court with Ejaz Ahmad Khan; Advocate‑on‑Record for Petitioner (in Crl. Org. No. 31‑L of 1999).

Ch. Shahid Saeed, Advocate Supreme Court, Syed Afzal Haider, Advocate Supreme Court, Ch. Mehdi Khan Mehtab, Advocate‑on‑Record with Brig. Iftikhar, General Manager (P), Manzoor Hussain Qureshi, Deputy G.M. (P), Lahore and Abdul Jabbar, Divisional Personnel Officer, Pakistan Railways for Respondents (in both Crl. Orgs.).

Date of hearing: 25th July, 2000.

2001 SCMR 1517

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Tanvir Ahmed Khan, JJ

GHULAM MUHAMMAD ‑‑‑Petitioner

Versus

MUHAMMAD NAWAZ alias Kulla and others‑ ‑‑Respondents

Criminal Petition for Leave to Appeal No. 16‑L of 2001, decided on 19th April, 2001.

(On appeal from the judgment dated 12‑12‑2000 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 1086 and 1'087 of 1998).

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art, 185(3)‑‑‑Leave to appeal was granted to the complainant by Supreme Court to re‑appraise the evidence with a view to examine the reasons given by High Court whereby the eye­witnesses were not relied upon solely on the ground that they also had enmity with the accused and should have been done to death if they had been present at the spot and that the motive was disbelieved simply on the ground that the long history of the murder cases was there against the eye‑witnesses.

M.A. Zafar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 19th April, 2001.

2001 SCMR 1518

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Rana Bhagwan Das and Deedar Hussain Shah, JJ

ANWAR and another‑‑‑Appellants

Versus

THE STATE‑‑Respondent

Criminal Appeal No. 109 of 1996, decided on 4th December, 2000.

(On appeal from the judgment of Lahore High Court, Lahore dated 20‑12‑1995 passed in Criminal Appeal No.733 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence ‑‑‑Falsus in uno falsus in omnibus‑‑‑ Principle of law "falsus in uno falsus in omnibus" is no longer accepted by the superior Courts of the country and the Court is under a duty to sift the chaff from the grain and find out as to whether a part of the evidence is reliable and confidence inspiring.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑No specific injury had been ascribed to the accused and the part played by him appeared to be identical to that of acquitted co‑accused‑‑‑Mere recovery of a gun from the accused after two weeks of the incident was not sufficient to connect him with the commission of the crime and to disentitle him to the benefit of doubt already extended to three co‑accused who had allegedly taken active part in the commission of the murder‑‑‑Accused was acquitted in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑Specific injury on the vital part of the body of the deceased was attributed to accused which was corroborated by medical evidence and had contributed towards his death‑‑‑Gun voluntarily produced by the accused soon after his arrest had tallied with the crime empties recovered from the spot‑‑‑Ocular evidence was worth reliance‑‑­Complicity of accused in the commission of the crime, thus, was conclusively proved‑‑‑Conviction and sentence of accused were upheld accordingly.

M. A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants.

Ch. Muhammad Akram, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate‑on‑Record (absent) for the State.

Date of hearing: 4th December, 2000.

2001 SCMR 1522

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ, Mrs. ESMERAIDA CONCAICAO BERTHA

RODRIGUES DA COSTA through Attorney‑‑‑Appellant

Versus

SABIR HUSSAIN and another‑‑‑Respondents

Civil Appeal No.696 of 1993, decided on 27th November, 2000.

(On appeal from the judgment dated 18‑4‑1993 of High Court of Sindh, Circuit Court, Hyderabad in F.A. No. 13 of 1993).

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

‑‑‑‑S.12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether application under S.12(2), C.P.C. moved by the petitioner was adjudicated upon strictly in accordance with law and dictates of natural justice.

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

‑‑‑‑S.12(2)‑‑‑Decree, setting aside of ‑‑‑Frand against dead person‑‑­Respondents claimed right in the suit‑property on the basis of agreement executed on 18‑5‑1978‑‑‑Ex parte decree was passed against the petitioner‑‑­Application under S.12(2), C.P.C. was filed to set aside the decree on the ground that the agreement was a forged document‑‑‑Application was dismissed by Trial Court as well as Lower Appellate Court‑‑‑Revision before High Court was also dismissed‑‑‑Validity‑‑‑Documents filed by the petitioner I showed that the original owner of the property in dispute breathed his last on 13‑10‑1977, whereas the alleged agreement of sale was said to have been executed on 18‑5‑1978‑‑‑Original owner could not have executed the Agreement of sale after his death and if the same was found to be correct, the decree obtained would be nullity having been obtained by practising fraud against dead person‑‑‑Order passed by High Court and the orders passed by the Courts below with regard to the disposal of the application was set aside and case was remanded by Supreme Court to Trial Court for decision afresh.

Khalil Kazilbash, Advocate Supreme Court for Appellant.

Nemo for Respondents.

Date of hearing: 27th November, 2000.

2001 SCMR 1524

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Javed Iqbal, JJ

GHULAM QADIR and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.317 and 318 of ‑1998, decided on 24th January, 2001.

(On appeal from the judgment dated 30‑6‑1997 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1285 of 1991 and M.R. No. 549 of 1991).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149, 307/149, 353/149 & 148‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contentions were that eye‑witness account was hot corroborated by any unimpeachable evidence; that the witnesses being inimical and interested, rule of caution had to be pressed into‑‑case and that recovery of the weapons of offence had been found to be of no avail‑‑‑Leave to appeal was granted by Supreme Court to the accused to reappraise prosecution evidence to ensure safe administration of justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 307/149, 353/149 & 148‑‑‑Appraisal of evidence‑‑­Sentence‑‑‑Ocular testimony was corroborated by motive and medical evidence‑‑‑No lawful justification was available to discard the statements of eye‑witnesses who had sustained injuries during the attack and who had narrated the details of the incident in a simple and straightforward manner and had stood firm to the test of an exhaustive cross‑examination‑‑­Convictions of accused were upheld in circumstances‑‑ ‑No reasons whatsoever had been given by the High Court for alteration of death sentence of accused to that of life imprisonment except one accused whose death sentence had been confirmed‑‑‑Similar role was attributed to each accused and evidence against all accused was of similar nature‑‑‑All the accused were also found vicariously liable for the attack by both the Courts below which had resulted in death of three persons‑‑‑Accused to whom death sentence was awarded deserved the same punishment as awarded to other accused‑‑‑Death sentence of the said accused was consequently altered to imprisonment for life‑‑‑Appeals were disposed of accordingly.

Saifur Rehman v. The State 1988 SCMR 443 ref.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants.

Ch. Dil Muhammad Tarar, Advocate‑on‑Record for the State.

Pate of hearing: 24th January, 2001.

2001 SCMR 1532

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwan Das and Abdul Hameed Dogar, JJ

MALAGA KHAN and another‑‑‑Petitioners

Versus

GULFRAZ and others‑‑‑Respondents

Criminal Petitions Nos. 159 and 383‑L of 2000, decided on 20th February, 2001.

(On appeal from the order and judgment of Lahore High Court, Lahore, dated 7‑6‑2000 passed in Criminal Revision No.40 of 1991 and Criminal Appeal No.202 of 1991).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(c)/34 & 324/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Case involved murder of three innocent persons and murderous assault on two witnesses one of whom was not produced before the Trial Court and the High Court had varied the sentence awarded to four accused and acquitted four others of the charge‑‑‑Leave to appeal was granted in circumstances by Supreme Court to re‑appraise the evidence to ensure that the well‑settled principles for safe administration of justice in criminal cases had been followed by the High Court.

Sardar Muhammad Ishaq Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Crl.P. No. 159 of 2000).

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners (in Crl.P. No.383‑L of 2000 and for Respondents in Crl.P. No. 159 of 2000).

Nemo for the State.

Date of hearing: 20th February, 2001.

2001 SCMR 1536

(Supreme Court of Pakistan

Present: Qazi Muhammad Farooq, Javed Iqbal and Hamid Ali Mirza, JJ

SHARBAT KHAN alias PAHAR KHAN and another‑ ‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Criminal Petitions for Leave to Appeal Nos. 125 and 135 of 2000, decided on 15th September, 2000.

(On appeal from the judgment dated 8‑5‑2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.5 of 2000 and Criminal Revision No.3 of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Prompt lodging of the F.I.R. had pointed to the presence of the eye‑witnesses on the spot at the time of occurrence‑‑‑Statements of eye‑witnesses to the extent of the accused did not suffer from any serious or alarming contradiction or discrepancy despite the fact that they were subjected to lengthy cross­-examination‑‑‑Relationship of eye‑witnesses with the deceased was not enough to discredit their testimony especially when it was amply corroborated by the promptly lodged F.I.R. and the medical evidence‑‑‑Plea of self‑defence in the absence of supporting evidence could not demolish the prosecution case which was supported by ocular evidence‑‑‑Case set up by the accused in his defence was not reasonably possible which in fact had augmented the prosecution case that the tragedy had been enacted by him‑‑­Leave to appeal was refused to accused by Supreme Court in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence ‑‑‑Falsus in uno falsus in omnibus­ Maxim "falsus in uno falsus in omnibus" having failed to stand the test of time has since been discarded and replaced by a more rational and pragmatic methodology of evaluation of the ocular evidence whereby "the grain is sifted from the chaff".

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Cr1.P. No. 125 of 2000).

Sardar Muhammad Siddique Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner (in Cr1.P. No. 135 of 2000).

Nomo for the State.

Date of hearing: 15th September, 2000.

2001 SCMR 1539

[Supreme Court of Pakistan]

Present Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUHAMMAD IQBAL KHAN and another‑‑‑Petitioners

Versus

MUHAMMAD IQBAL AHMED SIDDIQUI and 9 others‑‑‑Respondents

Criminal Petition No.438‑K of 1999, decided on 21st August, 2000.

(On appeal from the judgment dated 5‑2‑1999 passed by Sindh High Court in Civil Revision Application No.225 of 1996).

(a) West Pakistan Waqf Properties (Administration) Rules, 1960‑‑‑

‑‑‑‑R.4‑‑‑Scheme for Management of Waqf Properties ‑‑‑Management of mosques ‑‑‑Maintenance of peace and harmony ‑‑‑Basic object‑‑‑Guiding principles‑‑‑Essential for maintenance of peace and harmony to accord due respect and sanctity to the faith (Maslak) whose followers constructed the mosque irrespective of the fact whether the management and control of such a mosque is in the hands of the mosque committee or the Auqaf Department

(b) West Pakistan Waqf Properties (Administration) Rules, 1960‑‑‑

‑‑‑‑R.4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Scheme for Management of Mosques‑‑‑Dispute between two sects qua administration of the suit mosque‑‑‑Claim of plaintiffs was accepted by Trial Court and the suit was decreed while the findings were reversed by Lower Appellate Court and the suit was dismissed‑‑‑High Court in exercise of revisional jurisdiction restored the judgment of Trial Court‑‑‑Validity‑‑‑Mosque was always dedicated to Almighty Allah and the same was meant for the use of all the Muslims to offer prayers therein without any distinction of sect and no Muslim could prohibit another Muslim from offering prayers in the mosque in accordance with the Qur'an and Sunnah‑‑‑Supreme Court declined to interfere with the judgment of High Court affirming the findings of fact arrived at by Trial Court‑‑‑Leave to appeal was refused.

Syed Ansar Hussain, Advocate Supreme Court for Petitioners.

Khalil‑ur‑Rehman, Advocate Supreme Court for Respondents Nos. l to 3.

K.M. Nadeem, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Respondent No.6.

Muneer‑ur‑Rehman, Additional Advocate‑General for the Government.

Date of hearing: 21st August, 2000.

2001 SCMR 1543

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Tanvir Ahmed Khan, JJ

BASHIR AHMED ‑‑‑ Petitioner

Versus

MUHAMMAD RIAZ and 3 others‑‑‑Respondents

Criminal Petition No. 101‑L of 2001, decided on 25th April, 2001.

(On appeal from the judgment/order dated 15‑1‑2001 passed by Lahore High Court, Lahore in Criminal Appeal No.37 of 1993 and M.R. No.35 of 1993).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑High Court without discussing evidence or assigning any reason had just come to the conclusion that the deceased was done to death by the fire of complainant side‑‑‑Evidence on the basis of which High Court had reached such conclusion was not clear‑‑‑Leave to appeal was granted by Supreme Court for reappraisal of evidence in circumstances.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th April, 2001.

2001 SCMR 1544

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Tanvir Ahmed Khan, JJ

GHULAM MUHAMMAD KHAN‑‑‑Petitioner

Versus

MUHAMMAD SADIQ and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.463‑L of 2000, decided on 11th December, 2000.

(On appeal from the judgment dated 25‑7‑2000 passed by Lahore High Court, Lahore in Crl. Misc. No.3791‑B of 2000).

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/34/109‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Cancellation of pre‑arrest bail ‑‑‑ complainan­t was mainly aggrieved of some of the observations made by the High Court in the impugned judgment which according to him were tantamount to deciding the case in favour of the defence right away‑‑‑High Court, however, in its judgment had also observed that the order would not in any manner abridge powers of the Trial Court to cancel the bail, in case sufficient evidence was brought on the file through the mouth of the witnesses regarding the commission of the offence by the accused‑‑‑No interference bi Supreme Court was required with the well‑reasoned discretionary order of the High Court granting pre‑arrest bail to the accused in the presence (f the said observations‑‑‑Leave to appeal was refused to the complainant accordingly.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner. Ch. Riasat Ali, Advocate Supreme Court for Respondents.

Date of hearing: 11th December, 2000.

2001 SCMR 1547

[Supreme Court of Pakistan]

Present Sayed Deedar Hussain Shah and

Hamid Ali Mirza, JJ

COLLECTOR, CENTRAL EXCISE AND LAND CUSTOMS, HYDERABAD and another‑‑‑Petitioners

Versus

MODERN TEXTILE MILLS LIMITED‑‑‑Respondent

Civil Petition No. 160‑K of 2000, decided on 23rd August, 2000.

(On appeal from the judgment dated 20‑12‑1999 of the High Court of Sindh, Karachi in C.P.D‑1263 of 1986).

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.18‑‑‑Constitution of Pakistan (1973), Art. 185(3j‑‑‑Regulatory duty‑‑­Charging of such duty in excess of the rate fixed‑‑‑Authorities demanded regulatory duty at the rate of 10 % of the import of goods‑‑‑Demand of such duty was set aside by the High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑‑‑Rate of customs duty under the Schedule was 20% ad valorem, the regulatory duty imposed could not exceed the rate of 10%‑‑­Regulatory duty at the rate of 30 % could not be claimed‑‑‑No legal infirmity in the judgment passed by High Court existed and the provision of S.18(2) of Customs Act, 1969, was properly interpreted‑‑‑Leave to appeal was refused.

Yousuf Re‑Rolling Mills v. Collector of Customs PLD 1988 SC 232 rel.

Abdul Saeed Khan Ghori, Advocate Supreme Court for Petitioners.

Muhammad Ali Saeed, Advocate Supreme Court with A.A. Siddiqui, Advocate‑on‑Record for Respondent.

Date of hearing: 23rd August, 2000.

2001 SCMR 1549

[Supreme Court of Pakistan)

Present: Muhammad Bashir Jehangiri and

Nazim Hussain Siddiqui, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through the Chief

Engineer‑‑‑Petitioner

Versus

MUHAMMAD RAMZAN and another‑‑‑Respondents

Civil Petitions Nos.2751‑L and 2752‑L of 2000, decided on 11th December, 2000.

(On appeal from the judgment/order dated 10‑10‑2000 of the Lahore High Court, Multan Bench passed in R.F.As. Nos.77 of 1994 and 41 of 1995).

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.18‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Award, objection to‑‑‑Different rates of compensation‑‑‑Lands falling in two adjacent areas were acquired by the Authorities for public purpose‑‑‑Contention by the petitioner was that the compensation awarded to the petitioner for his land was muchless than that of the other land so acquired‑‑‑Validity‑‑‑Lands of the petitioner were uncultivated, whereas the other was cultivated land with orchards and crops growing thereon‑‑‑Such being the difference there was justification in determining the compensation by two different rates‑Supreme Court declined to interfere with the compensation so awarded‑‑­Leave to appeal was refused.

Malik Muhammad Rafique Rajwana, Advocate Supreme Court for Petitioner.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court and M. Bilal, Senior Advocate Supreme Court and Dil Muhammad Tarar, Advocate Supreme Court for Respondents.

Date of hearing: 11th December, 2000.

2001 SCMR 1552

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Mrs. SHAMIM BANG through Attorney‑‑‑Petitioner

Versus

Mrs. NAZIR FATIMA ‑‑‑Respondent

Civil Petition No.273‑K of 2000, decided on 24th July, 2000).

(On appeal from the order dated 11‑4‑2000 of the Sindh High Court, Karachi, passed in F.R.A. No.422 of 1999).

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑'Pagree'‑‑‑Adjustment of amount of Pagree against default ‑‑‑Validity‑‑‑'Pagree' cannot be adjusted against default in monthly rent.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑'Pagree'‑‑‑Treating amount of Pagree as mutual arrangement between the parties ‑‑‑Effect‑‑­Where the amount of 'Pagree' was treated as mutual arrangement between the parties, amount of Pagree having no legal sanctity behind it could not be adjusted against rent which had to be paid in accordance with the terms and conditions as stipulated in the tenancy agreement‑‑‑Amount of 'Pagree' would not figure in, being alien to the tenancy agreement.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑Ejectment of tenant‑‑‑'Pagree'‑‑‑Treating amount of Pagree as security deposit‑‑‑Validity‑‑‑If the Pagree amount is treated as 'security deposit', even then the amount of 'Pa gree' cannot be adjusted towards rent­ which is to be paid as per terms and conditions mentioned in the tenancy agreement.

(d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.15‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Security deposit‑‑­Adjustment of amount of security deposit against default‑‑‑Tenant admitted his default and contended that the amount of security deposit could have been adjusted against the default‑‑‑Rent Controller allowed the petition and appeal against the said order was dismissed by High Court‑‑‑Validity‑‑‑Amount of security deposit could not be adjusted against rent unless otherwise provided in the tenancy agreement‑‑‑Default having been committed by the tenant and judgment by the High Court being free from any legal, infirmity and being unassailable, did not call for any interference by Supreme Court‑‑‑Leave to appeal was refused.

PLD 1988 SC 190 and 19877 SCMR 307 ref.

Ch. Iftikhar Ahmed, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record (absent) for Petitioner.

Ahmadullah Farooqui, Advocate‑on‑Record for Respondent. .

Date of hearing: 24th July, 2000.

2001 SCMR 1556

[Supreme Court of Pakistan]

Present: Ajmal Mian, Abdul Hafeez Memon

and Mukhtar Ahmad Junejo, JJ

WARD ALI KHAN DURANI and others‑‑‑Petitioners

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petitions Nos.391‑K and 638 of 1996, decided on 24th April, 1997.

(On appeal from the judgment/order dated 7‑11‑1996, of the High Court of Sindh, Karachi, passed in Constitutional Petition No.D‑1720 of 1996).

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

‑‑‑‑S.154‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Registration of third F.I.R.‑‑‑Widows of the deceased were not satisfied with two previously registered F.I.Rs. as they had felt that said F.I.Rs. did not reflect the true facts‑‑‑First &I.R. was registered at the instance of a police officer who was suspected by the widows of being accused himself in the case‑‑‑Second F.I.R. was registered at the instance of a private servant of one of the widows who was still in police custody‑‑­Contention of widows that two F.I.Rs. registered by the police did not transpire true facts, was not unreasonable‑‑-- Widows of the deceased filed Constitutional petition before High Court seeking direction to the police concerned to record another F.I.R. disclosing the true facts of the incident‑‑­High Court accepted petition and directed the police to record third F.I.R. as prayed for by the widows holding that no hard and fast rule was that another F.I.R. could not be registered in respect of different version given by the aggrieved party of the same occurrence‑‑‑Validity‑‑‑If information subsequently given to a police officer which disclosed a different offence, was also cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the Police‑‑‑If true facts in respect of an occurrence were not reflected by the two earlier F.I.Rs., the refusal to record a genuine version of the same occurrence would not be justified‑‑­Alternate remedy though was provided to an aggrieved party under the law by way of lodging complaint, but mere fact that an alternate remedy had been provided for, could not debar the Court from giving direction to the police to record another F.I.R. in an appropriate case‑‑‑High Court, in circumstances, had rightly directed to the police concerned to register a third F.I.R. at the behest of the widows of the deceased‑‑‑Petitions for leave to appeal against judgment of High Court were dismissed.

Kaura v. The State and others 1983 SCMR 436 ref.

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

‑‑‑‑S.154‑‑‑F.I.R., nature and function of ‑‑‑F.I.R. merely set in motion the criminal law and it could not be used as a substantive piece of evidence against any accused and even observation made in respect of the F.I.R. pertaining to the merits of the case which was yet to be tried, could not be used against the accused at the trial.

Kh. Sharful Islam, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner (in C.P. N0.391‑K of 1996).

Nemo for Respondent (in No.C.P. 391‑K of 1996).

K.M.A. Samdani, Advocate Supreme Court for Petitioner (in C.P. No. 638 of 1996).

Nemo for Respondent (in C.P. No.638 of 1996).

Date of hearing: 24th April, 1997.

2001 SCMR 1561

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Hamid Ali Mina, JJ

PAKISTAN NATIONAL COUNCIL OF ARTS through

Director‑General‑‑‑Petitioner

Versus

AZIMUL WAQAR and 2 others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos.577 to 579 of 2000, decided on 26th March, 2001.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad dated 5‑1‑2000 passed in Appeals Nos.1443, 1444 and 1445‑R of 1999).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Petition for leave to appeal was time‑barred ‑‑‑Condonation of delay‑ ‑‑Petitioner, a statutory body, duly represented by a counsel, by its sheer negligence allowed the writ petitions to remain pending before the High Court, which had abated on the very day when S.2‑A was inserted in the Service Tribunals Act, 1973‑‑‑Party or his counsel in such a case could not be given any concession who either remained ignorant of law or negligent and careless to pursue his remedy diligently and carefully and such ignorance or negligence could not be made an excuse‑‑‑Statutory body having enormous resources and facilities at its disposal could not be treated differently from an ordinary litigant and it had to explain delay of each day for its condonation and ignorance of law could not be made an excuse for condonation of the delay.

The only question for determination in these petitions was whether the appeals of the petitioner before the Service Tribunal were within time. Section 2‑A was added in the Service Tribunals Act, 1973 vide Service Tribunals (Amendment) Act (XVII of 1997), which came into force with effect from 10th of June, 1997, according to section 6 thereof, all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the Act, stood abated, meaning thereby that by operation of law all the pending proceedings before the Courts stood abated forthwith, and any party to such a suit, appeal or application could prefer an appeal to the appropriate Service Tribunal within ninety days in respect of any such matter which was in issue in such suit, appeal or application. The petitioner filed separate writ petitions which were disposed of as having abated vide judgment dated 25‑1‑1999. After insertion of section 2‑A in the Act on 10‑6‑1997 the petitioner, a statutory body duly represented by a counsel, by its sheer negligence allowed the writ petition to remain pending before the High Court, which had abated on the very day when section 2‑A was inserted in the Act. The party or his counsel in such a case could not be given any concession who either remained ignorant of law or negligent and careless to pursue his remedy diligently and carefully and such ignorance or negligence could not be made an excuse.

The petitioner, a statutory body having enormous resources and facilities at its disposal cannot be treated differently from an ordinary litigant. The petitioner had to explain delay of each day for its condonation and ignorance of law cannot be made an excuse for condonation of delay.

Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 and Muhammad Yaqub v. Pakistan Petroleum Limited 2000 SCMR 830 distinguished.

Mansoor Ahmad, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Respondent in person (in C.P. No.578 of 2000).

Nemo for Respondents (in C.Ps. Nos.577 and 579 of 2000).

Date of hearing: 26th March, 2001.

2001 SCMR 1566

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

ZAHOOR AHMED‑‑‑Petitioner

Versus

WAPDA and others‑‑‑Respondents

Civil Appeals Nos. 1538, 1539 of 2000 and 252 of 2001, decided on 9th May, 2001.

(On appeal from the judgments dated 25‑2‑2000, passed by the Federal Service Tribunal, Islamabad in Appeals Nos.314(P), 348‑P and 347‑P of 1999).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.212(3)‑‑‑Dismissal from service‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether, ‑ under the circumstances, without conducting regular enquiry, civil servants could be dismissed from service and whether fact finding enquiry could be a substitute of regular enquiry at all and be used against the civil servant, while imposing major penalty of dismissal from service.

(b) Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑‑

‑‑‑‑R.5‑‑‑Misconduct‑‑‑Dismissal from service‑‑‑Opportunity to employee to defend‑‑‑Necessity‑‑‑Incumbent upon WAPDA to have conducted regular enquiry against employees after adopting procedure laid down in R.5 of Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑‑When an employee had to be removed on the basis of misconduct allegedly committed by him he deserved fair opportunity to defend himself, for if on ground of misconduct he was dismissed from service then for all the times to come he would carry stigma of misconduct with him‑‑‑Department, however, was always at liberty to initiate fresh disciplinary action against employees to establish as to whether they were guilty of misconduct.

Aleem Jaffar v. WAPDA 1998 SCMR 1445 fol.

Sheikh Riazul Haque, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants (in all Cases).

Muhammad Latif, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing; 9th May, 2001.

2001 SCMR 1569

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J.

and Ch. Muhammad Arif, J

ALI MUHAMMAD through Legal Heirs‑‑‑Appellant

Versus

MUHAMMAD AFTAB and 2 others‑‑‑Respondents

Civil Appeal No. 1047 of 1995, decided on 10th May, 2001.

(On appeal from the judgment dated 15‑11‑1993 passed by the Lahore High Court, Lahore in Writ Petition No. 1584‑R of 1974).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S.10‑‑‑Transfer of property‑‑‑Contention of the petitioner was that since admittedly the petitioner (now deceased) was transferred house and shop and the deceased admittedly had inducted the respondent into the shop as his tenant by virtue of a rent deed, the finding of the Courts below that the shop in possession of respondent was not part of the survey numbers transferred to the petitioner, was contrary to the evidence on record‑‑‑Leave to appeal was granted by Supreme Court to consider the question, whether the finding recorded by the Courts below on the above question was contrary to the evidence on record.

(b) Settlement Scheme No. VIII‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Occupant of shop, prior to the repeal of Settlement Laws, had submitted his form under Settlement Scheme No.VIII and after thorough probe he having been found in occupation, was transferred the same and P.T.D. was issued accordingly‑‑‑High Court, held, was justified in not interfering in the matter in circumstances.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Where the resolution of factual controversies in the case had come about at the level of functionaries under a statute only after taking into consideration the relevant material on the record and their arrival at such conclusions being within the four corners of their respective jurisdictions under the Act, High Court was quite right in declining to interfere with such decisions in the exercise of its jurisdiction under Art. 199 of the Constitution.

Mirza Akram Beg v. Messrs Abdul Ghani and others 1987 SCMR

1284 ref.

S.Abul Aasim Jafri, Advocate‑on‑Record for Appellants.

Dilawar Mehmood, Advocate Supreme Court and M. Aslam Ch., Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 10th May, 2001.

2001 SCMR 1576

[Supreme Court of Pakistan]

Present: Mukhtar Ahmad Junejo and Nasir Aslam Zahid, JJ

MUHAMMAD NAEEM alias M.A. RAHIM‑‑‑Petitioner

Versus

MUHAMMAD INAMUR RAHIM‑‑‑Respondent

Civil Petition No.417‑K of 1997, decided on 11th February, 1998.

(On appeal from the judgment dated 12‑9‑1997 of the High Court of Sindh, Karachi in R.A. No.323 of 1994).

Specific Relief Act (I of 1877)‑‑­‑

‑‑‑‑Ss.42 & 54‑‑‑Constitution of Pakistan (1973). Art.185(3)‑‑‑Suit for declaration and perpetual injunction‑‑‑Petitioner had laid his claim on a plot allotted in the name other than the petitioner's by asserting that the same was his "other name", but failed to produce any oral or documentary evidence to that effect‑‑‑Trial Court dismissed the suit and judgment of Trial Court was upheld in appeal by the Appellate Court and in revision by High Court‑‑­Plaintiff/petitioner could not point out any evidence which was not considered by any of the .Courts below and had also failed to point out any misreading or non‑reading of evidence by the Courts below‑‑‑Case of petitioner having been properly dealt with by all the Courts below, in absence of any misreading or non‑reading of evidence, no case had been made out for interference by the Supreme Court.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 11th February, 1998.

2001 SCMR 1578

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J.

and Ch. Muhammad Arif, J

Dr. MUBASHAR AHMAD MIRZA‑‑‑Petitioner

Versus

PUNJAB PROVINCE through Secretary Health, Punjab and others‑‑‑Respondents

Civil Petition No. 1230 of 2001, decided on 16th May, 2001.

(On appeal from the judgment dated 29‑3‑2001 passed by the Punjab Service Tribunal, Lahore in Appeal No.3039 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑

‑‑‑‑R.7(a)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Penalty of compulsory retirement from service imposed on medical doctors on account of giving wrong post‑mortem report‑‑‑Validity‑‑‑Departmental proceedings did not suffer from any flaw whatsoever‑‑‑Inquiry Committee had duly appreciated the documentary evidence on the record and, after interrogating the doctors (accused of giving wrong post‑mortem report) as also making reference to textbooks on Forensic Science had correctly ruled that the post­mortem report under the remarks in Column VI was wrong‑‑‑No substantial question of law of public importance within the contemplation of Art.212(3) of the Constitution had been made out to justify grant of leave to appeal against the judgment of Service Tribunal‑‑‑Supreme Court dismissed the petition for leave to appeal, in circumstances.

Malik Qamar Afzal, Advocate Supreme Court with M.A. Zaidi.

Advocate‑on‑Record for Petitioner.

Ch. M. Akram, Advocate Supreme Court for Respondents.

Date of hearing; 16th May, 2001.

2001 SCMR 1584

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J.

and Ch. Muhammad Arif J

Mst. SAEEDA BEGUM ‑‑‑ Appellant

Versus

MUHAMMAD NAWABUDDIN‑‑‑Respondent

Civil Appeal No. 862 of 2000, decided on 8th May, 2001.

(On appeal from the judgment dated 20‑10‑1999 of the High Court of Sindh, Karachi, passed in F.R.A. No.317 of 1994).

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S.14‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of widow landlady of above 80 years of age having other similar properties as well‑‑‑Leave to appeal was granted to consider whether, in the circumstances of the case, the landlady could claim benefit of S.14, Sindh Rented Premises Ordinance, 1979 where nine other shops were rented out by her and she being above 80 years of age was residing with one of her four sons.

(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 14‑‑‑Application under S.14, Sindh Rented Premises Ordinance, 1979‑‑‑Maintainability‑‑‑Such application is maintainable by the persons specified in S.14 (or on their behalf), who should have proprietary interest in the property, either as the sole owner or one of the co‑owners‑‑‑While construing S.14, liberal construction has to be placed thereon so as to advance the object for which, the same has been enacted rather to defeat it‑‑­Benefit of S.14 at the same time shall not be extended to the persons except those who have been specified in S.14.

Mst. Najma Ashraf v. Mst. Noor Jehan 1994 SCMR 913 distinguished.

Syeda Hyderi Khatoon v. Aftab Ahmad and 8 others 1986 CLC 1534; Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1 and Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑Ss.14 & 15‑‑‑Bona fide personal need of landlord for doing business in the rented premises‑‑‑Provisions of S.14, Sindh Rented Premises Ordinance, 1979 do not require the landlord/landlady to carry on the business personally nor he/she was debarred to get the said business carried on through any of his agent or son or daughter‑‑‑Objection that landlady was about 80 years of age and incapacitated is, thus, not relevant‑‑‑Where there was no evidence on the record to point any incapacitation of the landlady to carry on the business, findings of the Courts below to invoke the provisions of S.15, Sindh Rented Premises Ordinance, 1979 to import into S.14 of the Ordinance the preconditions of bona fide requirement were not warranted by any canon of interpretation of statutes.

Mst. Najma Ashraf v. Mst. Noor Jehan 1994 SCMR 913 distinguished.

Syeda Hyderi Khatoon v. Aftab Ahmad and 8 others 1986 CLC 1534; Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1 and Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699 ref.

Syed Muhammad Zaki, Advocate Supreme Court for Appellant. N.C. Motiani, Advocate‑on‑Record for Respondent.

Date of hearing: 8th May, 2001.

2001 SCMR 1591

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Mst. RAJ BIBI and others‑‑‑Appellants

Versus

PROVINCE OF PUNJAB through District Collector, Okara and 5 others‑‑‑Respondents

Civil Appeals Nos. 1329 and 1330 of 1995, decided on 26th February, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated I1‑5‑1994 passed in Civil Revisions Nos.506 and 507 of 1991).

(a) West Pakistan Land Revenue Act (XVH of 1967)‑‑‑

‑‑‑‑Ss. 42(7)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Mutation, legality of‑‑‑Leave to appeal was granted by the Supreme Court to examine the contentions that two illiterate women had been deprived of their land in collusion with the Patwari and the Courts below had ignored some basic features of the case while upholding the legality of the impugned mutation; that at the time of attestation of mutation none of the male relatives of the women was present, that they were alleged to have been identified by a person who was Lambardar of a different village who did not state as to how he was acquainted with the two women residing in a different village: that according to one of the vendees who appeared on behalf of other vendees at the trial consideration for the sale was paid before the Tehsildar while the attesting officer denied that it was so paid and that neither the mutation register nor the relevant page of the Patwari's Roznamcha Waqiati bore the thumb‑.impressions of the two women.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.42‑‑‑Mutation, attestation of‑‑‑Plea of fraud‑‑‑Burden of proof‑‑‑Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely.

Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.

(c) Pardahnashin lady‑‑‑

‑‑‑‑ Transfer of property of Pardahnashin lady‑‑‑Plea of fraud‑‑‑Burden of proof‑‑‑Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such document were fully concerned and understood by the executant independently and freely.

Jannat bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.

(d) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.42‑‑‑Mutation, attestation of‑‑‑Total land of illiterate Pardahnashin ladies was got mutated at their back‑‑‑Validity‑‑‑Ladies emphatically denied the sale and their appearance before the Revenue Officer or the receipt of any sale consideration‑‑‑Lambardar of the concerned village was available to witness the mutations but Lambardar of another village was presented for the purpose who had not explained as to how he knew the Pardahnashin ladies‑‑?Neither the register of mutations nor the mutation bore the thumb? impressions of the two ladies who were allegedly identified by the Lambardar of another village‑‑‑Revenue Officer while attesting the mutations had not insisted for the presence of the male relatives of the ladies who could identify them and the presence of respectables of the locality 'preferably the Lambardar of the area as required by S.42(7) of the West Pakistan Land Revenue Act, 1967‑‑‑Beneficiary party, in circumstances, had to establish by a strong and reliable evidence that the documents i.e. disputed mutations were genuine and bona fide and had been voluntarily and freely entered and attested at the free‑will of the executants‑‑‑Where the evidence of the beneficiaries in the record was not only unsatisfactory but was incredible, such evidence could not be attached any credence ‑‑‑Pardahnashin ladies, in circumstances, were not a party to the mutations and they were totally kept in dark about the transactions and fictitious mutations were got attested with the connivance of the Revenue Staff‑‑‑Mutation proceedings wherein the two ladies had denied their participation were not only in gross violation of S.42(7) of the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, the mutations being illegal, the entire structure built on them would fall to the ground‑‑‑Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation the matter could be considered on merits so as not to allow fraud to perpetuate.

(e) Fraud‑‑‑

‑‑‑‑Limitation‑‑‑Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation the matter can be considered on merits so as not to allow fraud to perpetuate.

Rana Abdur Rahim Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellants.

Respondent No. 1: Ex parse.

Mian Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court for Respondents.

Date of hearing: 28th February, 2001.

2001 SCMR 1599

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Qazi Muhammad Farooq, JJ

Messrs SERVICE SALES CORPORATION (PVT.) LIMITED‑‑‑Appellant

Versus

ASSISTANT DIRECTOR, FIELD OPERATION EMPLOYEES' OLD‑AGE

BENEFITS INSTITUTION and others‑‑‑Respondents

Civil Appeal No. 1375 of 1995, decided 15th May, 2001.

(On appeal from the judgment dated 22‑3‑1994 passed by Lahore High Court, Lahore in Appeal No. 1658 of 1988).

(a) Employees’ Old‑Age Benefits Act (XIV of 1976)‑‑‑

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Demand of contribution to the funds created by the Act by the Establishment for its each shop and sale depot separately‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider whether for the purposes of making contribution to the funds created by the Employees' Old‑Age Benefits Act, 1976 each shop and sale depot of the employer was to be treated as a separate unit or whether all were to be taken as forming part of one establishment.

(b) Employees' Old‑Age Benefits Act (XIV of 1976)‑‑‑

‑‑ ‑Ss. 9 & 2(c)(e)‑‑‑West Pakistan Shops and Establishments Ordinance (VIII of 1969), S.2(j)‑‑‑"Establishment"‑‑‑"Employer"‑‑‑Connotation‑‑­Contribution to the funds created by the Employees' Old‑Age Benefits Act, 1976‑‑‑Shops/sales depots which are the cluster of a commercial establishment, such commercial establishments are responsible to make contribution on behalf of insurable employees in terms of S.9, Employees' Old‑Age Benefits Act, 1976‑‑‑Principles.

The staff' members posted in to shops and sale depots of establishment located in different parts of the country were transferable from one place to another place and establishment was also making payment of income‑tax etc. on the joint business of all the shops/depots. Establishment was a private limited concern and it had been registered under the repealed Companies Act. 1913, now Companies Ordinance, 1984. A conclusion could be drawn that the shops/depots of the company were the part and parcel of their business and their activities remained under direct control of the principal/head office of establishment and no shop or depot was being run independently for the purposes of earning profits and making payments of income‑tax as well as controlling the affairs of the staff posted therein. During proceedings under section 33 of the Employees' Old‑Age Benefits Act, 1976 before Adjudicating Authority,' establishment produced its Manager Administration who, in cross‑examination, admitted that establishment was owner of the said shops. The employees working therein were the employees of the establishment and their, affairs such as appointments, promotions, removals, postings, transfers and others were managed and controlled by the establishment This witness further went on saying that budgets of the shops were prepared by the establishment. The department also led evidence who also confirmed that establishment had complete administrative control over the employees working in various shops and their salaries were paid by the establishment. Similarly their appointments, postings, transfers and promotions were done by the establishment. To further substtintiate his plea he produced documents including appointment letters addressed to various persons issued under the signatures of the company. The contents of those documents were not disputed by the establishment.

In view of the evidence so available on record next question for consideration would be as to whether shops/sales depots of the appellant do fall within the unamended definition of word "establishment" under section 2(e) of Employees' Old‑Age Benefits Act, 1976, if so to what effect? It would be appropriate to note that in the Employees' Old‑Age Benefits Act, 1976 originally the word "establishment" was defined to be an organisation whether industrial, commercial or otherwise under section 2(e). The word establishment" means an organization whether industrial commercial or agricultural or otherwise. For the purpose of the present case the definition of word "establishment" is identical so far as it relates to industrial or commercial organization the term "establishment" does not appear to be confined in its scope to merely the four walls of the physical premises where the notified establishment may be located, on the contrary, the definition speaks of an organization whether industrial, commercial, agricultural or otherwise. In its literal sense an organization connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society furnished with organ for the normal exercise of its appropriate functions. It follows, therefore, that an organization is not successfully coterminous wish the physical premises where it may be located. It is possible that a part of its structure may be situated elsewhere, but it must, nevertheless be integral to its main functions and objects.

Later on vide Amending Ordinance XVII of 1983 the word "establishment" was defined to be an "establishment" to which the West Pakistan Shops and Establishments Ordinance, 1969 for the time being applies and notwithstanding anything contained in section 5 thereof includes clubs, hostels, organizations and messes not maintained for profits or gain and Establishment including hospitals, for the treatment or care of sick, infirm, destitute or mentally unfit persons. Under section 2(i) of West Pakistan Shops and Establishments Ordinance, 1969 a shop has been defined to be an establishment. The amended definition of establishment has enlarged the scope of application of Employees' Old‑Age Benefits Act, 1976 because it also covers a shop, therefore, no doubt is left that the shops being run by the establishment fall under the definition of establishment individually and jointly. It may be noted that the establishment is the employer of the staff members working in the shops and according to the definition of employer under section 2(c) of Employees' Old‑Age Benefits Act, 1976 it means any person who employs either directly or through any other person any employee and includes in the case of an individual an heir, successor administrator or assign or a person who has ultimate control over the affairs of an industry or establishment or where the affairs of an industry or establishment are entrusted to any other person whether called a managing agent, managing director, manager, superintendent, secretary or by any other name such other person etc. The conjunctive study of word "establishment" and employer under section 2(c) and (e) of Employees' Old‑Age Benefits Act, 1976 manifestly makes it clear that their affairs are being controlled by the establishment from its head office because they had been employed to supervise the interest of the appellant in different parts of the country and the income whatever they generate ultimately is subject to income‑tax under the Income‑Tax Ordinance, 1979, therefore, no doubt is left that the shops/sales depots are the cluster of commercial establishments, thus, it is responsible to make the contribution on behalf of insurable employees in terms of section 9 of Employees' Old‑Age Benefits Act, 1976.

Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197 ref.

K.M.A. Samadani, Senior Advocate Supreme Court for Appellant.

Nemo for Respondents

Date of hearing : 15th May; 2001.

2001 SCMR 1605

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

MUHAMMAD NAWAZ and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.358 and 359 of 1998, decided on 27th April, 2001.

(On Appeal from the judgment dated 10‑6‑1997 passed by the Lahore High Court, Lahore in Criminal Appeal No.572 of 1992 and Murder Reference No.311 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 307‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Awarding of death penalty‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court only to consider whether award of death penalty to the accused persons in the circumstances of the case was justified or not.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Sentence‑‑‑Imposition of‑‑‑Principles‑‑‑Question of sentence in each case is to be determined on the facts of the case‑‑‑Death sentence is ordinarily imposed in murder cases unless the Trial Court, for the reasons to be recorded, considers it appropriate to award lesser penalty‑‑‑If the Court is satisfied that there are mitigating/extenuating circumstances then it would be justified in imposing lesser penalty of the two sentences awarded by law.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Sentence‑‑‑Mitigating/extenuating circumstances to award lesser punishment‑‑‑Factors‑‑‑Determination‑‑‑No plea that the accused were less than 18 years of age or that accused acted under the command of their elder, the acquitted co‑accused, or that incident had developed suddenly was raised or pleaded before the Trial Court ‑‑‑Accused's case before Trial Court was that of total denial of the incident and that motive was said to be false one‑‑‑Pleas of sudden flare‑up and accused being youthful offenders were taken before the High Court‑‑‑Trial Court and the High Court, on scrutiny of the evidence found no place in the evidence to support contentions of the accused persons ‑‑‑F.I.R. was lodged with promptitude wherein the accused had been nominated specially mentioning overt act on their part whereby two young brothers were murdered as pgr evidence on record‑‑‑Incident had occurred because the accused persons had peeped through the window into the house of the deceased who forbade there, who then had gone away and when the deceased alongwith complainant were in the main Bazar the accused attacked the deceased with their daggers and caused the injuries on the persons of deceased which stood corroborated by the medical evidence‑‑­Incident having taken place suddenly or that something had taken place all of a sudden which led to the incident, could not be believed‑‑‑Evidence on record showed that after the first incident, accused came around with daggers and attacked the deceased in the main Bazar, therefore it was premeditated murders on the part of accused of the two young brothers‑‑‑Motive as stated in the F.I.R. was corroborated by the witness, therefore, it could not be said that the motive was false considering that F.I.R. was lodged without delay wherein said motive was also stated‑‑‑Contention that the accused were less than 18 years of age at the time of incident, therefore, lesser punishment be awarded was repelled because on verification from the statement of the accused under S.342, Cr.P.C. it was found that accused were more than 18 years at the time of commission of the offences and further no such plea was raised before the Trial Court nor any suggestion made in the cross­-examination of the prosecution witnesses nor any other valuable proof in the said report was brought on record‑‑‑Accused had not taken the plea before the Trial Court that they had acted at the instance of their elder in the commission of offence, such plea that the accused committed the offence at the command of their elder would also have no merit as their co‑accused was found to have been falsely implicated in the case‑‑‑Trial Court and High Court had given cogent and valid reasons in support of their findings and awarding death sentence to the accused‑‑‑No case for lesser sentence having been made out, Supreme Court declined interference in circumstances.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Sentence‑‑‑Award of death penalty‑‑‑Plea for lesser punishment on account of motive being shrouded in mystery ‑‑‑Validity‑‑­Principles.

'Motive shrounded in mystery' is not a legal principle which can be applied in all murder cases for reduction of capital sentence where there is no motive alleged/proved by the prosecution or where initially a motive is alleged but the same is not proved or withdrawn or a different motive appears to the prosecution evidence. "Motive shrouded in mystery" by itself is not a mitigating circumstance for lesser sentence. Where there is no motive alleged but the guilt of the accused is otherwise established on the basis of evidence, it could be said that in such a cause motive is 'shrouded in mystery' and that it cannot be said as to what was the precise and immediate reasons for the murder. There is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved on the other hand if the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If the normal sentence was not awarded, the Court is required to make out a case for reduction of sentence on the basis of mitigating circumstances. Therefore, in murder cases where no motive is alleged, the same remains shrouded in mystery, yet, if the prosecution establishes its case against the accused beyond reasonable doubt, the normal sentence awarded in such case is death, unless there are mitigating circumstances justifying award of lesser sentence.

When the plea is advanced that motive is shrouded in mystery, evidence of circumstances should be such that there is a definite indication or inference that murder must have taken place on account of provocation or other reason of the kind that could be considered as mitigating circumstances for reduction of sentence, but merely advancing a plea that the motive is shrouded in mystery by itself is not sufficient to make out a case for lesser sentence. Facts and circumstances of each case are considered to find out whether there are any mitigating circumstances justifying reduction of sentence. In a case of cold‑blooded premeditated murder which results in the loss of one or more innocent lives, the contention for lesser sentence should not be accepted only on the ground that the motive is shrouded in mystery unless there is other evidence or circumstances which definitely indicate that there was provocation or reason for the murder which could be considered as a mitigating circumstance.

Motive "shrouded in mystery" is not a legal principle which could be applied in all murder cases for reduction of capital sentence where no motive is alleged/proved by the prosecution. But in the present case prosecution has proved that motive as observed by the trial Court and affirmed by Division Bench of the High Court. There is thus no ground to interfere with the said finding in view of evidence on record. Even if motive is weak but the prosecution has established the guilt of the accused beyond reasonable doubt, accused would be awarded normal sentence of death. In the present case there are no mitigating circumstances to justify reduction in sentence.

The trial Court and the High Court have given cogent and valid reasons in support of their findings. No case for lesser sentence was made out. In the circumstances conviction arid sentence passed by the trial Court and maintained by the High Court, were not interfered with by the Supreme Court.

Sultan and another v. The State 2000 SCMR 1818; Muhammad Nawaz Khan v Mubarak Ali and others 2000 SCMR 1582; Abdul Qadir v. Masoodur Rehman and others 2000 SCMR 1492; Nazar Hussain alias Nazra v. The State 2000 SCMR 1486; Gul Khan and another v. The State 2000 SCMR 400; Abdul Wahab alias Rehra v. The State 1999 SCMR 1668, Muhammad Yaqoob alias Qooba v. The State 1999 SCMR 1138; Muhammad Mumtaz Khan v. The State 1999 SCMR 837; Nazeer Ahmad v, The State 1999 SCMR 396; Abid Hussain v. The State PLD 1994 SC 641; Allah Dawaya v. The State PLD 1993 SC 35; Ghulam Abbas v. Mazher Abbas and another PLD 1991 SC 1059 and Sher Hussain v. The State PLD 1959 SC (Pak.) 480 distinguished.

Vali Muhammad v. Bajoo 1978 SCMR 257; Sher Ali v. The State 1980 SCMR 291; Ghulam Nazir7 The State 1981 SCMR 805; Sher Daraz Khan v. The State 1983 SCMR 266; Arif v. The State 1984 SCMR 124; Ahmad Khan v. The State 1985 SCMR 975; Faqir Masih v. Mubarik Masih 1987 SCMR 697; Nabi Bakhsh v. The State 1988 SCMR 213; Abbas Hussain v. The State 1992 SCMR 320; Roheeda v. Khan Bahadur 1992 SCMR 1036; Muhammad Ishaque Khan v. The State PLD 1994 SC 259: Zulfiqar v. The State 1995 SCMR 1668; Intizar Hussain v. Muhammad Sarwar 1996 SCMR 872; Muhammad Mushtaq v. The State 1973 SCMR 219; Ali Hussain v. Mukhtar 1983 SCMR 806; Nawaz Khan v. Ghulam Shabbir 1995 SCMR 1007 and Talib Hussain v. The State 1995 SCMR 1776 ref.

Sardar uhammad atif Khan Khosa. Advocate Supreme court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal 358 of 1999).

Ch. Muhammad Akram, Advocate Supreme Court for Appellant (in Cr. A. No. 359 of 1999).

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Ijaz Hussain Batalvi, Advocate Supreme Court for the Complainant.

Date of hearing: 27th April, 2001.

2001 SCMR 1615

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Mian Muhammad Ajmal, JJ

Dr. MUHAMMAD AFZAL and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 6 and 7 of 2001, decided on. 14th May, 2001

(On appeal from the judgment dated 5‑1‑2001 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.2618‑M of 2000).

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

‑‑‑‑S.194 & Chap. XXII‑A [Ss. 265‑A to 265‑N]‑‑‑Penal Code (XLV of 1860), Ss. 192 & 197‑‑‑Fabricating false evidence and issuing or signing false certificate‑‑‑Jurisdiction of High Court to take cognizance directly of an offence falling under Pakistan Penal Code‑‑‑Scope and extent‑‑‑Judicial proceedings pending before High Court‑‑‑High Court on the basis of documentary evidence had gained sufficient knowledge to prima facie conclude that a cognizable offence had been committed during pendency of judicial proceedings before it‑‑‑Where in special circumstances, an offence falling within the scope of Pakistan Penal Code was committed during the judicial proceedings pending before the High Court, there would be no bar on the High Court to take cognizance under S.194, Cr.P.C. directly and proceed to try accused under Chap.XXII‑A, Cr.P.C.‑‑‑High Court, at the same time, instead of trying the accused for commission of the offence committed during pendency of judicial proceedings, itself may send the case to the concerned investigating agency having jurisdiction for further action according to law‑‑‑Where documentary evidence in such‑like situation was available on record the High Court rightly decided to proceed with the matter under S.194, Cr.P.C. by directly taking cognizance of the offence‑‑­Principles ‑‑‑[Nabi Dad v. The State 1990 PCr.LJ 1000 overruled].

As per mandate of section 28, Cr.P.C., the High Court and the Court of Session have concurrent jurisdiction alongwith subordinate Courts to try the offences under the Pakistan Penal Code subject to compliance of section 190(3), Cr.P.C. relating to procedure of taking cognizance of offence. Section 190(3), Cr.P.C. prescribes mode of transmitting criminal cases by a Magistrate to a Court having jurisdiction to try the case as per Column 8 of Schedule II of Cr.P.C. without recording evidence after taking cognizance under subsection (1) of section 190, Cr.P.C. for trial. A perusal of Column 8 of the Schedule II, Cr.P.C. indicates that High Court has not been mentioned to be one of the Courts competent to try the offences of Pakistan Penal Code. As per this column either the offences are triable by the Court of Session or by a Magistrate. Whereas section 194, Cr.P.C. authorises the High Court to take cognizance of offence. It would mean that notwithstanding the fact that in Column 8 of Schedule II, Cr.P.C. High Court is not mentioned, but under section 194, Cr.P.C. High Court after taking cognizance of the offence under P.P.C. would be competent to try offence as per section 28, Cr.P.C.

It is true that prior to the amendment of subsection (1) of section 194, Cr.P.C. the High Court had no jurisdiction to directly take cognizance of the offence except upon a commitment made to it in the manner provided thereafter but after amendment of subsection (1) of section 194, Cr.P.C. jurisdiction has been conferred upon the High Court to take cognizance of any offence directly. Trial of an offence by High Court is interlinked with taking cognizance of any offence and if High Court had no jurisdiction to take the cognizance of the offence directly it also had no jurisdiction to try the offence unless a case is transferred to it under section 526, Cr.P.C.

If the cases were committed to the High Court under section 194(1), Cr.P.C. or proceedings were started on an application of the Advocate­-General under section 194(2) or were transferred to it under section 526, Cr.P.C. then the High Court would have jurisdiction to try the accused.

Under section 194(1), Cr.P.C. the expression used "in the manner hereinafter provided" indicates that some procedure has been prescribed under the Code after this section for taking cognizance of offence by the High Court. Section 195, Cr.P.C. provides procedure for taking cognizance of the offence in following categories of cases by the Courts other than the High Court:

(i) Contempt of lawful authority of public servants.

(ii) Prosecution for certain offences against public justice.

(iii) Prosecution of certain offences relating to documents given in evidence.

But it seems that the offences for which the accused persons have been charged in the present case are not covered under any of the above categories, therefore, procedure of taking cognizance of such offence is not to be followed by the High Court. So far section 196, Cr.P.C. onwards are concerned they had nothing to do with regard to taking cognizance of offence. Except section 265‑B, Chapter XXII‑A, Cr.P.C. which lays down the procedure which is to be followed by the High Court at the trial of the case. High Court can take cognizance of offence of Pakistan Penal Code under section 194, Cr.P.C. in the same manner as cognizance is taken under section 190(1)(c), Cr.P.C. by a Magistrate namely upon an information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed.

The conclusion drawn hereinabove gives rise to another important question namely that in which category of cases cognizance of the offence will be taken directly by the High Court because under Criminal Procedure Code some of the offences are triable exclusively or concurrently by the Magistrate or Sessions Judge as per contents of Column 8 of Schedule II to Cr.P.C. In addition to it generally cases are triable as per the contents of Schedule II of Cr.P.C. by the Courts within whose local limits/jurisdiction offence is committed. In this behalf reference to section 157, Cr.P.C. may be made which lays down procedure of investigation by the officer incharge of a police station in whose jurisdiction a cognizable offence is suspected to have been committed. This section when examined alongwith the provisions of section 177, Cr.P.C., it becomes manifestly clear that after registration and completion of investigation by a police officer its challan has to be submitted before a Court within whose local limits the crime has been committed. As far as section 190(1), Cr.P.C. is concerned as per its mandate the Magistrate, on taking cognizance of the offence in the manner provided therein, will commence the trial of the case if it is triable by the same Court and in case it is triable by a Court of Session it shall be sent to the said Court. However, under this provision case will not be transmitted to High Court unless same is transferred to it under section 526, Cr.P.C. It may be noted that the Magistrate taking cognizance of offence will decide the forum competent to try the offence as per provision of Schedule II to Cr.P.C. No departure from this procedure ordinarily is possible. However, in special circumstances when an offence falling within the scope of Pakistan Penal Code is committed during the judicial proceedings pending before the High Court then there would be no bar on it to take cognizance under section 194, Cr.P.C. directly and proceed to try accused under Chapter XXII‑A, Cr.P.C. At the same time High Court, instead of trying the accused for commission of the offence committed during pendency of judicial proceedings, itself ma_v send it to the concerned investigating agency having jurisdiction for further action according to law. As in the present case during pendency of Habeas Corpus petition allegedly fabricated medical certificate was produced before the Court who, instead of believing or disbelieving it, referred the detenu to Medical Board to confirm as to whether he had been really physically tortured during his custody with the police as complained by him or not Accordingly a Medical Board comprising of senior doctors vide their report confirmed that detenu had injuries on his person. Such Medical report negated the medical certificate prepared and verified by accused doctors respectively. High Court to further satisfy itself got constituted a second Medical Board by issuing direction to the Health Secretary, who filed its report which concurred with the report of first Medical Board. Thus, on basis of such material High Court had gained sufficient knowledge to prima facie conclude that a cognizable offence had been committed during pendency of judicial proceedings before it. Thus in such‑like situations when documentary evidence was available on record, High Court rightly decided to proceed with the matter under section 194, Cr.P.C. by directly taking cognizance of the offence.

Nabi Dad v. The State 1990 PCr.LJ 1000 overruled.

Harish Chandra v. Kavindra Narain Sinha and others AIR 1936 All. 830 ref.

PLD 1974 Lah. 202; PLD 1975 Lah. 729; 1975 PCr.LJ ,732 and 1990 PCr.LJ 342 distinguished.

(b) Criminal trial‑‑‑

‑‑‑‑ Offences committed by accused persons in a case being distinct from those of other accused no prejudice would be caused by the conviction of one set of accused to the other set of accused whose case was still pending for trial for a different offence.

1988 MLD 2862 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.192 & 197‑‑‑Fabricating false evidence and issuing or signing false certificate‑‑‑Sentence‑‑‑Object and quantum‑‑ ‑Object of the punishment to a person is two‑fold namely that he should be sentenced for violating the law and secondly to serve as a deterrence to the like‑minded persons who without caring for the consequences do wrongs and violate the law‑‑‑Quantum of 'sentence is determined keeping in view gravity of the offence so committed by the person facing trial‑‑‑Both the accused doctors undoubtedly by furnishing medical certificate had produced false evidence during judicial proceedings in the High Court‑‑‑Supreme Court, keeping in view the fact that accused belonged to an educated class of the society and statedly were first offenders, reduced the sentence awarded to them from 5 years' R.I. with fine of Rs.20,000 under S.197, Cr.P.C. to that of one year R. I. and the fine of ks.10,000 each and in default in payment of fine to further suffer S.I. for three months‑‑‑Amount of fine if recovered was directed to be paid to the victim.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record ‑for Appellant. (in Criminal Appeal No. 6 of 2001).

Mian Qurban Sadiq Ikram, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellant (in Criminal Appeal No.7 of 2001).

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Dates of hearing: 18th and 19th April, 2001.

2001 SCMR 1630

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ., Ch. Muhammad Arif and Mian Muhammad Ajmal, C.J

COLLECTOR, CUSTOMS AND CENTRAL EXCISE‑‑‑Petitioner

Versus

FAZAL HUSSAIN and 4 others‑‑‑Respondents

Civil Review Petition No.243 of 2000 in Civil Petition No. 1080 of 2000, decided on 16th May, 2001:

(On review from the judgment dated 19‑9‑2000 of this Court passed in C. P. No. 1080. of 2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review .of Supreme Court judgment‑‑‑Condonation of delay‑‑‑Supreme Court in the order under review, had observed that concerned functionaries of the Department responsible for the unconscionable delay in processing the case be identified and proceeded against under the Efficiency and Discipline Rules, under intimation to the Registrar of Supreme Court‑‑‑Plea in the review petition was that delay in filing the petition for leave to appeal was not unconscionable‑‑‑Held, Supreme Court had given a considered opinion on the plea taken for the condonation of delay in the application moved in that behalf and repelled the same for cogent reasons‑‑‑Delay that had occurred in filing of petition was motivated, mala fide and had to be checked because in almost all the Government cases such pleas were always raised before Supreme Court for condonation of delay which the functionaries do cause intentionally with ulterior motives and then try to save their skin by taking such pleas.

Supreme Court in the present case had observed as under:‑‑

"Prima facie it is a glaring case of collusion between the officers of the Central Board of Revenue and respondents Nos. l and 2 for ulterior motives. The concerned Collector Customs or for that matter any other Officer of the department is directed to be identified by the Chairman, Central Board of Revenue who were responsible for this unconscionable delay in processing the case and proceed against them under the Efficiency and Discipline Rules under intimation to Registrar of this Court within 60 days."

Counsel appearing on behalf of the petitioner (Government) had urged that the above observations made by Supreme Court call for review thereof inasmuch as the delay that occurred in filing of civil petition for‑leave to appeal was not unconscionable. Supreme Court was not impressed by the contention raised by the counsel for the petitioner, because it realty amounted to challenging the correctness of the views taken by Supreme Court in the order now sought to be reviewed which could not be a ground for a review. The Court had given a considered opinion on the plea taken for the condonation of delay in the application moved in this behalf and repelled the same for cogent reasons.

In the result the delay that had occurred in filing of civil petition was motivated, mala fide and had to be checked because in almost all the Government cases such pleas are always raised before Supreme Court for condonation of delay which the functionaries do cause intentionally with ulterior motives and then try to save their skin by taking such pleas.

Ch. Muhammad Akram, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th May, 2001.

2001 SCMR 1632

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Qazi Muhammad Farooq, JJ

ASGHAR ABBAS and others‑‑‑Appellants

Versus

Mst. SAKINA BIBI and others‑‑‑Respondents

Civil Appeal No. 994 of 1995, decided on 25th May, 2001.

(On appeal from the judgment dated 22‑2‑1994 of the Lahore High Court, Lahore, passed in Civil Revision No. 1627 of 1982).

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

‑‑‑‑S.6‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Superior right of pre­emption ‑‑‑Leave to appeal was granted by the Supreme Court to consider the contention that pre‑emptor was not only Khewatdar in the estate but was also Yakjadi of the vendor in view of the overlooked admission in the statement of the witness.

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

‑‑‑‑S.6‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Claim of superior right of pre‑emption on the basis of Khewatdar in the, estate‑‑‑Appeal to Supreme Court‑‑‑Concurrent findings of fact to the contrary had been recorded by as many as three Courts which did not suffer from any infirmity traceable to misreading or non‑reading of evidence‑‑‑Non‑reading could not be based on the document which neither found mention in the statement of any witness nor execution of the same had been proved in accordance with law and was pressed into service by the defendants while closing the evidence of the defendants‑‑‑Claim of superior right on the basis of Khewatdar was not supported by any Revenue Record and the application moved‑in the High Court for placing certain self‑attested documents on record was dismissed‑‑­Claim of the pre‑emptor, in circumstances, was not tenable.

Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026 and Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559 ref.

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

‑‑‑‑S.6‑‑‑Constitution of Pakistan (1973), Art. 1857‑‑Claim‑of superior right of pre‑emption on the basis of Yakjadi of the vendor‑‑‑Appeal to Supreme Court‑‑‑Contention of the pre‑emptor was pitted against unexceptionable concurrent findings of fact recorded by‑ three Courts‑‑‑Admission of fact of pre‑emption being Yakjadi Attributed to one of the witnesses examined was rightly' overlooked because same had been made by a person having no relationship with the family of the pre‑emptor and being incompatible with the assertion made in the examination‑in‑chief indicating lack of knowledge of relationship of pre‑emptor and the vendor and unaugmented by an authentic pedigree‑table was too bald to be conclusive proof of the matter admitted‑‑‑Nothing was available on record from which it could be gathered that the pedigree‑table was a genuine document and pertained to the pre­emptor ‑‑‑Contentions of the pre‑emptor, in circumstances, were not tenable.

Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026 and Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559 ref.

Raashid Masood, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record (absent) for Appellants.

Sh. Maqbool Ahmed and Samiullah Jan, Advocates Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondents: Date of hearing: 21st May, 2001.

2001 SCMR 1636

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Javed Iqbal, JJ

SARDAR BEGUM and others‑‑‑Appellants

Versus

Ch. MUHAMMAD SAEED and another‑‑‑Respondents

Civil Appeal No.217 of 1995, decided on 23rd May, 2001.

(On appeal from the judgment dated 30‑5‑1993 of the Lahore High Court passed in F.A.O. No.63 of 1991).

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

‑‑‑‑Ss.47, 38 96‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for specific performance of agreement of sale‑‑‑ Execution of decree‑‑ ‑Principle of merger‑‑‑Applicability‑‑‑Two sets of decrees were passed on 20‑12‑1980 in which time was fixed for deposit of the remaining amount of consideration which was passed ex parse against one set by defendants, against the other set of defendants on the basis of admission arid against the third set of defendants under O.IX, R.6, C.P.C. and date of the decree being same, time fixed in the decree for deposit of the remaining amount of consideration was the same‑‑‑Time was, however, extended on the application of one of the defendants seeking setting aside of ex parte decree which order was subject-­matter of further revision and civil petition for leave to appeal before Supreme Court which was ultimately decreed on 11‑3‑1990‑‑‑Rule of merger of decrees for the purpose of limitation for filing execution petition would, prima facie, be applicable in relation to, the decree dated 20‑12‑1980‑‑­Decree dated 20‑12‑1980 in relation to which the principle of merger was found to be applicable on account of which execution was found to be within limitation, was executable against the defendants ‑other than those against whom fresh ex parte decree was passed on 29‑6‑1985 for the earlier ex parte decree dated 20‑12‑1980 passed against them had been set aside‑‑‑Supreme Court pointed out further question to be determined by the Executing Court and disposed of the appeal with, observation that the petition for execution of decree dated 20‑12‑,1980 was not barred by time on account of the principle of merger and issued directions to the Executing Court to decide further questions as laid down by the Supreme Court about the executability of the said decree on the ground that the same was executable only against the defendants other than the defendants against whom decree dated 29‑6‑1985 was passed to the exclusion of the said defendants, as such, was executable and whether execution of application qua decree dated 29‑6‑1985 was within limitation in case the principle of merger was found to be not available.

In the present case there were two sets of decrees one passed on 20‑12A980 in which time was fixed for deposit of the remaining amount of consideration. It was passed ex ‑parse against one set of defendants, against the other set of defendants on the basis of admission and against the third set of defendants under Order IX, Rule 6, C.P.C. but since the date of decree was the same, therefore, time fixed on the said decree for deposit of the remaining amount of consideration was the same. It was extended on dismissal of the application of defendants seeking setting aside of ex parte decree which order was subject‑matter of further revision and civil petition for leave to appeal before Supreme Court which was ultimately decided on

11‑3‑1999.‑The question of merger of decree for the purpose of limitation for filing execution petition would prima facie be applicable in relation to the decree dated 20‑12‑1980. However, ex parte decree passed on the same date against one set of defendants was set aside in the two F.A.Os. and the case was remanded for fresh disposal against the said defendants and after remand, a fresh ex parte decree was passed against them on 29‑6‑1985. Whether this decree was appealed against or not, there is nothing on the record. It is also not clear as to which of the decrees, i.e. the original decree passed on 20‑12‑1980 or the ex parte decree passed on 29‑6‑1985, was sought to be executed or both.

Considering that the decree dated 20‑12‑1980 in relation to which the principle of merger was found to be applicable on account of which execution petition seeking execution of the said decree was found to be within limitation is executable against the defendants other than those defendants against whom fresh ex parte decree was passed on 29‑6‑1985, for the earlier ex parte decree dated 20‑12-1980.passed against them had been set aside, further question to be determined by the Executing Court would be, whether the execution of decree dated 20‑12‑1980 to the exclusion of the defendants against whom decree dated 29‑6‑1985 was subsequently passed would be maintainable and the same was executable. Certain further questions were whether execution petition against the ex parte decree dated 29‑6‑1985 against those defendants against whom the same had been passed was within limitation, which would also be dependent on the determination of question whether any appeal or revision was filed against the said decree, as such, the principle of merger was applicable, for it is found that no appeal or revision had been filed and it had become final then the question of limitation of execution of the same against those defendants against whom the same had been passed will have to be decided according to law.

Supreme Court disposed of the appeal with the observation that the execution petition for the execution of decree dated 20‑12‑1980 was not barred by time on account of the principle of merger and directed the Executing Court to decide further questions as, mentioned above about the executability of the said decree on the ground that the same was executable only against the defendants other than the defendants against whom decree dated 29‑6‑1985 was passed to the exclusion of the said defendants, as such, was executable and whether execution of application qua decree dated 29‑6‑1985 is within limitation in case the principle of merger is found to be not available.

Muhammad Farooq and Mst. Zahida Parveen (in person).

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Malik Amjad Pervaiz, Advocate Supreme Court for Respondents.

Date of hearing: 23rd May, 2001.

2001 SCMR 1641

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and

Syed Deedar Hussain Shah, JJ

DISTRICT COUNCIL, SIALKOT‑‑‑Appellant

Versus

Chaudhry NAZIR AHMAD KHAN and 2 others‑‑‑Respondents

Civil Appeal No. 1449‑of 1995, decided on 2nd March, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 20‑3‑1994 passed in R.S.A. No. 179 of1967).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss.100 & 101‑‑‑Second appeal‑‑‑Maintainability‑‑‑Grounds‑‑‑By virtue of S.101; C.P.C. no second appeal lies except on the grounds enumerated in S.100, C.P.C.‑‑‑‑Both the Trial Court and the First Appellate Court, after minutely examining and considering in detail from every possible angle the documents brought on‑ record had concurrently concluded‑‑‑High Court in second appeal could not interfere with concurrent findings of fact recorded by the two Courts below even if it disagrees with the findings of its own view of evidence.

Section 100 of the Code of Civil Procedure provides second appeal to the High Cb1irt from a decree passed by an Appellate Court subordinate to the High Court on the following grounds:‑‑

(a) When the decision is against law; (b) When some material issue of law is not decided; (c) When there is substantial error or procedural defect which resulted in erroneous or defective decision.

and by virtue of section 101, C.P.C. no second appeal lies except on the grounds enumerated in section 100, C.P.C. Both the Trial Court and the First Appellate Court, after minutely examining and considering in detail from every possible angle the documents brought on record had concurrently concluded that High Court in second appeal could not interfere with concurrent finding of fact reached by the two Courts below even if it disagrees with that finding on its own view of evidence.

Abdul Rashid v. Bashiran and another 1996 SCMR 808 ref.

Dil Muhammad Tarar, Advocate Supreme Court for Appellant.

Ch. Fazal‑e‑Hussain, Advocate‑on‑Record for Respondent No. 1.

Respondents'Nos.2 and 3: Ex parte.

Dates of hearing: lst and 2nd March, 2001.

2001 SCMR 1647

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Javed Iqbal, JJ

Mst. MUSSARAT ARA KHANNUM‑‑‑Petitioner

Versus

UMAID ALI and another‑‑‑Respondents

Civil Appeal No. 1152 of 2001 and Civil Petition for Leave to Appeal No.6­Q of 1999, decided on 10th May, 2001.

(On appeal from the judgment dated 29‑10‑1998, High Court of Balochistan, Quetta, passed in Criminal Revision No.216 of 1995).

Specific Relief Act (I of 1877)‑‑

‑‑‑‑-- S. 12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for performance of agreement to sell land‑‑‑Revision‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider the point as to whether the impugned judgment had been passed on wrong premises of law and facts and the same was an outcome of non‑reading and misreading of the material pieces of evidence substantiating the assertion of the petitioner; whether the permission to withdraw the appeal and subsequent entertainment of revision petition was illegal in view of valuation of the suit and consequently the impugned judgment was without jurisdiction and lawful authority having no legal effect at all, whether after holding that petitioner and respondents both were required to pay court‑fee on the value of the suit the appeal could have been treated as time‑barred; whether in view of the chequered history of the case, it was a fit case for condonation of delay which mainly occurred due to bona fide impression and belief that appeal was to be filed before the High Court; whether the evidence which had come on record had been appreciated in its true perspective by the High Court while deciding the revision petition on merits when the appeal was dismissed by the Additional District Judge on the sole ground of limitation; whether the agreement of. sale could be enforced in absence of any consideration and its implications which aspect of the matter escaped notice from the High Court; whether the calculations regarding time as _ made by the Appellate Court and relied upon by the High Court were contrary to record and petitioner could not justify the consumption of time between specified dates; whether the decree of trial Court in view of valuation of the suit was patently without lawful authority and had been passed in exercise of jurisdiction which was never conferred upon it, therefore, the same being void was liable to be struck down as against such void decree no period of limitation would run; whether the petitioner could have been non‑suited only on the basis of an exhibited document implications whereof were never discussed by the Trial and Appellate Courts in accordance with law and settled principles of justice; whether the statement of representative of Sub‑Registrar would be, sufficient to prove the authenticity and genuineness of power of attorney allegedly executed by the petitioner when representation of Sub‑Registrar was neither a marginal witness nor it was executed in his presence; whether the High Court had examined the statements in depth to appreciate the real controversy while deciding the revision petition on merits; whether the impugned judgment of the High Court was in conflict with the dictum as laid down in cases titled Fida Muhammad v. Muhammad Khan PLD 1985 SC 341, Shumal Begum v. Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; whether exhibit was got registered before Sub‑Registrar by the petitioner herself and the question of her identification had been dealt with properly by the High Court while deciding the revision petition and whether all the points as agitated in the revision petition were dilated upon, discussed and decided by the High Court while deciding the revision petition.

Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Shumal Begum .v. Gulzar Begum arid 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 ref.

Mumtaz Hussain Baqsi, Advocate Supreme Court and Mehta W.N Kohli, Advocate‑on‑Record for Petitioner Maqbool Elahi Malik, Advocate Supreme Court, Ihsanul Haq, Advocate Supreme Court and S.A.M. Qaudri. Advocate‑on‑Record for Respondents.

Date of hearing: 10th May, 2001.

2001 SCMR 1651

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Qazi Muhammad Farooq, JJ

ABDUL QAYYUM‑‑‑Appellant

Versus

MUHAMMAD RAFIQUE‑‑‑Respondent

Civil Appeal No.671 of 1999, decided on 25th May, 2001.

(On appeal from the judgment dated 18‑9‑1997 passed by Lahore High Court, Lahore in Civil Revision No.799 of 1997).

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

‑‑‑‑S.13‑‑‑Making of Talabs‑‑‑Procedure‑‑‑Requirement of law would be fully met if it was alleged in the pleading that after having come to know of sale, pre‑emptor declared his intention to pre‑empt the sale, material fact must be proved at trial through evidence on issue framed in that regard‑‑­Evidence to be led need not be disclosed in the plaint‑‑‑If, however, the plaintiff fails to mention the material facts that he has made Talab‑i­Muwathibat on having gained knowledge of the sale without wasting time in making of mind to enforce the right of pre‑emption or not, he would be debarred from leading evidence on the material fact‑‑‑Such procedure is in consonance with law of pleadings according to which plaintiff is not obliged to make reference to the evidence to be led by him except noting a particular fact to be proved, subsequently by leading evidence.

Amir Jan and 3 others v. Haji Ghulam PLD 1997 SC 883 fol.

Rashid Ahmad v. Muhammad Khan PLD 1961 BJ 76; Hakim Khan v. Aurang Zaib and another PLD 1985 Lah. 1170; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 882; Manga v. Bashir Ahmad Khan and 45 others 1992 MLD 2170; Muhammad Siddique and 2 others v. Faqir Muhammad and another 1993 CLC 1158; Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCMR 1083; Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137 and Shafi Muhammad v. Muhammad Hazar Khan 1996 SCMR 346 ref.

(b) Pleadings‑‑‑

‑‑‑‑Principle‑‑‑Plaintiff is not obliged to make reference of the evidence to be led by him except noting a particular fact, which is to be proved subsequently by leading evidence.

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

‑‑‑‑S.13‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal to Supreme Court‑‑‑Making of Talab‑i‑Mawathibat‑‑‑Proof‑‑‑Both Courts below had concurred on the fact that appellant had not proved the‑making of said Talab‑‑‑Ordinarily re‑appraisal of question of fact is not undertaken by the Supreme Court particularly when the High Court has re‑appraised/concurred with the findings recorded either by the Appellate Court or Trial Court, unless it is demonstrated before the Supreme Court that the impugned order suffers from apparent misreading or non‑reading of evidence by any of the forums below‑‑‑While appreciating evidence possibility of forming two views cannot be overruled .depending upon the nature of evidence on the

(d) Evidence‑‑‑

‑‑‑‑ Documentary evidence‑‑‑Proof‑‑‑Document being relied upon by a party is required to be proved either by leading primary or secondary evidence in view of facts of each case.

(e) Evidence‑‑‑

‑‑‑‑ Documentary evidence‑‑‑Proof‑‑‑Document being neither initialed nor signed (attested) could not be taken into consideration.

Muhammad Siddique and 2 others v. Faqir Muhammad and another 1993 CLC 1158 and Manga v. Bashir Ahmad Khan and 45 others 1992 MLD.

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

‑‑‑‑S.13(3)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.72, 75, 78 & 79‑‑‑Talab­i‑Ishhad, proof of‑‑‑To prove contents of documents, claimant is bound to produce primary or secondary evidence as per Arts. 72, 75, 78 & 79 of the Qanun‑e‑Shahadat, 1984, unless execution of the same is admitted by the opponent‑‑‑Neither the execution of notice of Talab‑i‑Ishhad had been proved nor the other party had admitted same in the written statement or during trial of the case or even before the Supreme Court‑‑‑If a ‑document had been produced on record in accordance with the relevant provisions of Qanun‑e­Shahadat, but on account of an omission on the part of the Presiding Officer an exhibit number had not been marked on the same or the document had not been signed, .same ‑would not become inadmissible for much reason‑‑‑No other conclusion, can be drawn except that Talab‑i‑Ishhad had not been made in circumstances.

(g) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.13(3)‑‑‑Making of Talb‑i‑Ishhad, a most important condition for enforcing right of pre‑emption ‑‑‑Provisions of S.13(3), Punjab Pre‑emption Act, 1991 being mandatory in nature, performance of Talb‑i‑Ishhad was considered to be one of the most important conditions for enforcing the right of pre‑emption and if a notice had 'tot been sent as per the requirement of law, the conclusion would be that Talb‑i‑Ishhad had not been made, as a result whereof right of pre‑emption would be deemed to have extinguished.

(h) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.13(3)‑‑‑Making of Talab‑‑‑Both Talb‑i‑Muwathibat and Talb‑i‑Ishhad had to be proved simultaneously‑‑‑Right of pre‑emption would stand extinguished for want of both the Talbs.

Nazir Ahmad v King‑Emperor AIR 1936 PC. 253; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693; Muhammad Amin and 3 others v. Gulab and another 1993 CLC 98; Said Muhammad Shah v. Ghulam Hussain 1993 CLC 105 and Suba Khan v. Muhammad Bashir 1993 MLD 1958 ref.

Gut Zarin Kiani, Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record (absent) for Appellant.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Ch. Muzammal Khan, Advocate Supreme Court for Respondent.

Date of hearing: 25th May, 2001.

2001 SCMR 1661

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, AGRICULTURE

DEPARTMENT, LAHORE and 4 others‑‑‑Appellants

Versus

Sh. NAVEED KAMAL, ASSISTANT RESEARCH

OFFICER, MAIZE BREEDING, SUB‑STATION

CHARRAPANI, MURREE ‑‑‑Respondent

Civil Appeal No. 871 of 1996, decided on 4th May, 2001.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore Camp at Rawalpindi dated 10‑4‑1995 passed in Appeal No.1231 of 1993).

(a) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.10(3)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Ad hoc appointees‑‑‑Dismissal from service‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to examine the contention of the Appointing Authority that admittedly the appointment of the civil servant was ad hoc in nature and under S.10(3), Punjab Civil Servants Act, 1974, the Competent Authority could terminate his service on thirty days' notice or pay in lieu thereof and exactly the same was done in the case and that the judgment of the Service Tribunal impinged upon the statutory right of the Government and it was for that reason unsustainable.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S. 10‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 32‑‑‑Ad hoc appointees‑‑‑Dismissal from service‑‑­Validity‑‑‑Civil servant was appointed without observing the procedure laid down in R.22, Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and was holding the post in violation of R.22(2) of the said Rules for 3 years‑‑‑ Appointing Authority had not taken any steps to forward a requisition to the Selection Authority to fill the post on regular basis as prescribed by the Rules‑‑‑Such an appointment being violative of the Rules, could not be attached any sanctity.

(c) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.10‑‑‑Ad hoc appointee ‑‑‑Dismissal from service‑‑‑Procedure‑‑‑Ad hoc appointee under S.10(3) of the Punjab Civil Servants Act, 1974 can be terminated on thirty days' notice or pay in lieu thereof‑‑‑Where S.10(3) of the Act was not followed by the Department and instead the civil servant was terminated from service in view of the terms and conditions of his service as laid down in this appointment letter which was not in accordance with law and the Rules, Supreme Court directed the Appointing Authority to immediately forward a requisition to the Selection Authority to nominate a selectee for the post in accordance with law and the ad hoc appointee, if eligible, shall have a right to compete with others.

According to subsection (1) of section 10, Punjab Civil Servants Act, 1974 a civil servant can be terminated without notice during the initial or extended period of his probation and in case of ad hoc appointee, on appointment of a person recommended by the Selection Authority. In the present case, the civil servant's services could be terminated without notice on the arrival of the selectee/recommendee of the Selection Authority but no requisition was made to the Selection Authority in three years to fill the post on regular basis. Under subsection (3) of section 10 of the said Act the temporary or ad hoc employee can be terminated on thirty days' notice or pay in lieu thereof but this provision of law was not followed in the present case and instead the civil servant was terminated from service in view of the terms and conditions of his service as laid down in his appointment letter which was not in accordance with law and the rules. Supreme Court directed that the appointing authority should immediately forward a requisition to the Selection Authority to nominate a selectee for the post in accordance with law. Civil servant, if eligible, shall have a right to compete with others.

Tariq Khokhar, Additional Advocate‑General for Appellants.

Respondent in person.

Date of hearing: 4th May, 2001.

2001 SCMR 1666

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Qazi Muhammad Farooq, JJ

GOVERNMENT OF SINDH through Advocate‑General‑‑‑Petitioner

Versus

BANK OF KHYBER and others‑‑‑Respondents

Civil Petitions Nos.525‑K, 526‑K and 538‑K of 2000, decided on 18th May, 2001.

(On appeal from the judgment dated 21‑4‑2000 passed by High Court of Sindh at Karachi in Constitutional Petitions Nos.D‑1183 of 1999, D‑1033 of 1999 and D‑1034 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.163 & 185(3)‑‑‑West Pakistan Finance Act (XXXIV of 1964), S.11 [as amended by S.6 read with Seventh Sched. of Sindh Finance Act, 1975) and S.5 of Sindh Finance Act, 1994)]‑‑‑Imposition of professional tax by Provincial Government‑‑‑Validity‑‑‑Case being of first impression and requiring interpretation of Art.163 of the Constitution, leave to appeal was granted by the Supreme Court, inter alia, to examine as to whether under Art.163, Constitution of Pakistan (1973), Provincial Government of Sindh had no powers to‑ impose tax on trades, professions, callings and employments under S.11 of West Pakistan (Sindh) Finance Act, 1964 as amended vide S.6 read with Seventh Sched. of Sindh Finance Act, 1975 and further amended by S.5 of Sindh Finance Act, 1964, if so, to what effect.

Siemen Pakistan Engineering Company Limited v. Province of Punjab through Secretary, Revenue Department, Government of Punjab PLD 1999 Lah. 244 and Bharat Kala Bhandar Limited and another v. Municipal Committee, Dhamangaon AIR 1966 SC 249 ref.

Suleman Habibullah, Additional Advocate‑General, Sindh and Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents (in C.Ps. Nos. 525‑K and 526‑K of 2000).

Saleem Zulfiqar, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent (in C.P. No. 538‑K of 2000).

Date of hearing: 18th May, 2001.

2001 SCMR 1669

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

INAYAT and others‑‑‑Appellants

Versus

SALAMAT ALI and others‑‑‑Respondents

Civil Appeal No.709 of 1995, decided on 10th May, 2001.

(On appeal from the judgment dated 25‑4‑1994 of the Lahore High Court, Lahore, passed in Writ Petition No. 105‑R of 1994).

(a) Scrutiny of Claims (Evacuee Property) Regulation, 1961 (M.L.R.89)‑‑‑

‑‑‑‑Para. 9‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Surrendered land‑‑‑Transfer‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider, inter alia, whether land once surrendered under Scrutiny of Claims (Evacuee Property) Regulation, 1961 which thereafter vested in the Government of West Pakistan could have been legally transferred on the basis of Q.P.R. Supplementary MR‑V dated 23‑4‑1978 after repeal of evacuee laws.

(b) Scrutiny of Claims (Evacuee Property) Regulation, 1961 (M.L.R.89)‑‑‑

‑‑‑‑Para. 9‑‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958) S.5‑‑‑Land surrendered under Scrutiny of Claims, (Evacuee Property). Regulation, 1961 having become property of Government of West Pakistan, had gone out of the compensation pool‑‑‑Obtaining of Supplementary MR‑V on 23‑4‑1978 by the party surrendering the land through the backdoor and the restoration of land in their favour was void ab initio and a nullity in the e of law being the outcome of machination and a fraudulent and collusive process adopted to defeat the stringent provisions of para.9 of the Regulation.

Mushtaq Ahmed v. Sharif and others. C.P.L.A‑ No. 816 of 1974 distinguished.

(c) Fraud‑‑‑

‑‑‑‑ Condonation of fraud on any technical ground like locus standi of the party would amount to putting premium on foul play.

Muhammad Siddique, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants.

Ch. Inayatullah, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 10th May, 2001.

2001 SCMR 1673

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Rana Bhagwan Das, JJ

FAYYAZUDDIN KHAN‑‑‑Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through the Secretary to the

Government of Pakistan, Minorities Affairs Division, Islamabad and 5

others‑‑‑Respondents

Civil Petition for Leave to Appeal No.398‑K of 2000, decided on 21st November; 2000.

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

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

‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Evacuee Trust Property‑‑‑Allotment of‑‑‑Provisions of S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑Scope‑‑‑Contention by petitioner was that nature of transaction in the context of transfer document 'was sot considered properly by the Authorities as well as the High Court‑‑­Permanent Transfer Deed mentioned that the transfer price of disputed property was adjusted against the Claim Compensation 'Book' issued" to the petitioner and that the same had‑fulfilled the requirements of provisions of S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975‑-- Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioner.

Kunwer Mukhtar Ahmed, Advocate Supreme Court and Miss Wajahat.

Naz, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st November, 2000.

2001 SCMR 1676

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and

Hamid Ali Mirza, JJ

Mrs. Mariam

Versus

Naeem Ahmad---Respondent

Civil Petitions Nos.3‑K and 4‑K of 2000, decided on 4th September, 2000.

(On appeal from the judgment of the High Court of Sindh dated 13‑10‑1999 passed in F.R.As. Nos.328 and 329 of 1999).

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑

‑‑‑S.15 ‑‑Ejectment of tenant‑‑‑Affidavit‑in‑evidence‑‑‑Non‑appearance of witness produced by landlady for cross‑examination‑‑‑Effect‑‑‑Evidence of d tenant was not afforded opportunity to cross‑examine the witness‑‑‑Rent Controller allowed the ejectment application while the same was dismissed by High Court in appeal ‑‑‑Validity‑‑‑Affidavit ­in‑evidence was not considered as evidence in absence of cross-examination‑‑‑Tenant was not given opportunity to place his case in cross­-examination and evidence of landlady had gone unchallenged, the same had caused prejudice and injustice to the tenant‑‑‑Petition for leave to appeal was converted into appeal, judgments of Rent Controller as well as of High Court were set aside and the case was remanded by Supreme Court to Rent Controller for decision afresh after providing opportunity to tenant to cross­examine attorney of the landlady.

(b) Sindh Rented Premises Ordinance (XVH of 1979)-----

‑‑‑‑S.15‑‑‑Ejectment of tenant‑‑‑Evidence‑‑‑Appearance of landlady through attorney‑‑‑Effect‑‑‑High Court refused to rely upon the evidence of attorney of landlady holding the same being no evidence worth consideration in support of her case‑‑‑Supreme Court refused to affirm the view of the High Court.

Karim Bakhsh v. Haji Arthi Khan v. Secretary to Government of Punjab 1983 SCMR 179 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 rel.

Abrar Hasan, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Petitioner.

Miss Wajahat Niaz, Advocate‑on‑Record for Respondent.

Date of hearing: 4th September, 2000.

2001 SCMR 1680

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

SINDH INDUSTRIAL TRADING ESTATES through

its Secretary, Karachi‑‑‑Petitioners

Versus

Mst. QAMAR HILAL and 5 others‑‑‑Respondents

Civil Petition No.43‑K of 2000, decided on 18th August, 2000.

(On appeal from the judgment dated 6‑11‑1998 of the High Court of Sindh in Appeal No.57 of 1994).

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

-----S.35A‑‑‑Compensatory costs‑‑‑Award of‑‑‑Scope‑‑‑Compensatory costs to appeal‑‑‑False or vexatious claims in appeals‑‑‑Legality‑‑‑Award of such costs in respect of false and vaxatious claims or defences in case of appeal is barred under the provisions of S.35‑A, C.P.C.

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

‑‑‑‑O.I, Rr.l & 3‑‑‑'Party'‑‑‑Meaning‑‑‑Parties are the persons whose names appear on the record of the suit as plaintiffs to or defendants.

Corpus Juris Secundum and Ballentine's Law Dictionary ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.35‑A‑‑‑Expression 'any party' in S.35‑A, C.P.C.‑‑‑Connotation‑‑­Objection to claim of plaintiff by person not a party in terms of S.35‑A, C.P.C.‑‑‑Person applying to the Court to become party to the proceedings whether was covered under the expression 'any party' as appearing in S.35‑A, C.P.C.‑‑‑Words 'any party' in legal parlance related to the party in the proceedings‑‑‑Person who had applied to the Court to become party could not be called a party unless orders were passed by the Court allowing the request for his addition as party to the proceedings ‑‑‑Judicial discretion of the Court to allow or refuse the request of such person, to be party to the proceedings‑‑‑Person, therefore, could not be termed to be party to the suit or other proceedings unless he was so made under the orders of the Court‑‑­Person not party to the suit or proceedings could not object to the claim and defence of the plaintiff alleging to be false and vexatious in terms of S.35‑A, C.P.C.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.35‑A‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Compensatory costs, award of‑‑‑False or vexatious claims in appeals‑‑‑Petitioners were not party to the suit who applied to Trial Court to become party to the proceedings‑‑‑Suit was withdrawn by the plaintiff after filing of application under O.I, R.10, C. P. C. ‑‑Application for award of compensatory costs was filed by the petitioners against the plaintiff, which application was dismissed by Trial Court and appeal was also dismissed‑‑‑Contention by the petitioners was that the claim of the plaintiff was vexatious within the meaning of S.35‑A, C.P.C. liable to special compensatory costs‑‑‑Validity‑‑‑Where the Judge had found the appeal to be absolutely false and vexatious, no costs could be awarded as the same would be awarded under S.35‑A, C.P.C. which provision dealt with costs for false or vexatious claim in case of suit or other proceedings (including execution proceedings) and not in appeal‑‑­Award of compensatory costs in appeal would clearly fall outside the jurisdiction of the Appellate Court‑‑‑Leave to appeal was refused.

(1970) 2 All ER 871 ref.

S.A. Samad Khan, Advocate Supreme Court and R.A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th August, 2000.

2001 SCMR 1685

[Supreme Court of Pakistan]

Present; Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

MUHAMMAD CHUTTAL‑‑‑Petitioner

Versus

ATTA MUHAMMAD through Legal Heirs‑‑‑Respondents

Civil Petition No.369‑K of 2000, decided on 25th October, 2000.

(On appeal from the judgment dated 27‑5‑2000 of the High Court of Sindh, Circuit Court, Larkana in Civil Revision No. 14 of 1998).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.IX, Rr.8 & 9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dismissal of suit for non‑prosecution‑‑‑Filing of second suit‑‑‑Respondent filed second suit on the same cause of action regarding same property, after the earlier suit was dismissed under O.IX, R.8, C.P.C.‑‑‑Subsequent suit was decreed by Trial Court but Lower Appellate Court dismissed the same being barred by O.IX, R.9, C.P.C.‑‑‑High Court, in exercise of revisional jurisdiction, set aside the order of Lower Appellate Court and allowed the revision on the ground that the subsequent suit was a new cause of action and the same was maintainable‑‑‑Validity‑‑‑Conflict of opinion on important question of law between the Courts below having been found, leave to appeal was granted by Supreme Court to consider contentions raised and to ensure whether the ratio in Juma Khan's case 1973 SCMR 289 was correctly applied by the High Court.

Black's Law Dictionary, VIth Edn., 1990, p.221; Jumma Khan v. Mahmud Khan 1973 SCMR 289 and Fazal Begum v. Municipal Corporation, Lahore 1983 CLC 1643 ref.

M.L. Shahani, Advocate Supreme Court and Naraindas C. Motiani, Advocate‑on‑Record for Petitioner.

Nemo for Respondent, Date of hearing: 25th October, 2000.

2001 SCMR 1688

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

Syed ABUL HASAN and another‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of

Defence and another‑‑‑Respondents

Civil Petitions Nos.294‑K and 314‑K of 2000, decided on 28th November, 2000.

(On appeal from the judgment dated 21‑4‑2000 of Federal Service Tribunal in Appeals Nos.92‑K of 1998 and 93‑K of 1998).

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Condonation of delay‑‑‑Failure to show sufficient cause‑‑‑Services of employees of Pakistan International Airlines were terminated‑‑‑Appeal before Service Tribunal was dismissed being time‑barred‑‑‑Employees had not been able to show sufficient cause in their affidavit seeking condonation of delay in filing the appeals before Service Tribunal‑‑‑Leave to appeal against the order of ‑the Tribunal was refused.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner (in C.P. No.294‑K of 2000).

Petitioner in person (in C.P. No. 314‑K of 2000).

Qamar Islam Abbas, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents (in C.P. No.314‑K of 2000)

Date of hearing: 28th November, 2000.

2001 SCMR 1690

[Supreme Court of Pakistan]

Present: Abdur Rahman Khan, Rana Bhagwan Das and Syed Deedar Hussain Shah, JJ

AFTAB AHMED and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.365 of 1998, decided on 4th December, 2000.

(On appeal from the judgment dated 4‑11‑1997 of the Lahore High Court, Lahore passed in Criminal Appeal No. 458 of 1994).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused by Supreme Court to re‑appraise the evidence in order to consider various features appearing in the case which required deeper examination.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑Prosecution had failed to prove the motive for the occurrence‑‑‑Prosecution case having been disbelieved against the acquitted co‑accused on the basis of the same evidence and almost under the similar circumstances, propriety required that the prosecution evidence must be corroborated by other evidence so as to be made safe basis for finding of guilt against the accused, but the same was lacking in the case‑‑­Alleged coincidence of witnesses appearing on the spot at odd hours of the night at 2‑00 a.m. and the accused waiting till then and started beating the deceased in the presence of the witnesses was ridiculous and conviction could not be based on such doubtful and suspicious evidence‑‑‑Investigating Officer had also expressed his reservation about the genuineness of the case as set up by the prosecution‑‑‑Prosecution case being not believeable and no other explanation being available on record as to why the deceased had entered the house of the complainant side at mid‑night, the defence plea even if not strictly proved was to be given weight‑‑‑Accused were acquitted on benefit of doubt in circumstances.

M.A. Zafar, Advocate Supreme Court for Appellants.

Ainul Haq, Advocate Supreme Court for the State.

Date of hearing: 4th December, 2000.

2001 SCMR 1695

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

CALTOX OIL (PAKISTAN) LTD. ‑‑‑Petitioner

Versus

MUHAMMAD RIZWAN‑‑‑Respondent

Civil Petition No.253‑K of 2000, decided on 24th October, 2000.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 31‑1‑2000 passed in F.R.A. No.549 of 1993).

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

‑‑‑‑Ss.15(2), 15‑A & 21‑‑‑Civil Procedure Code (V of 1908), S.12(2) & 0.111, R.4‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ejectment of tenant ordered on the statement of his counsel‑‑‑Such order was challenged by the tenant on the ground that his counsel was not invested with the authority to make statement for dismissal of appeal before High Court and that the concession extended by counsel was unauthorised, invalid and result of fraud on the tenant‑‑‑Counsel, who was an associate of another counsel who had been authorised to argue the appeal before High Court was competent to argue the matter on behalf of the tenant especially when the said counsel had also represented him earlier‑‑‑Application filed by tenant under S.12(2), C.P.C. was misconceived as neither it was a case of fraud nor of misrepresentation or want of jurisdiction‑‑‑Matter having been disposed of on merits after affording the tenant an opportunity of being heard, same did not fall within ambit of S.12(2), C.P.C.‑‑‑Petition for leave to appeal against judgment of High Court, was dismissed.

Noor Muhammad, Advocate Supreme Court and K.A. Wahab for Petitioner.

Nemo for Respondent.

Date of hearing: 24th October, 2000.

2001 SCMR 1698

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Hamid Ali Mirza, JJ

MUHAMMAD SIDDIQ and others‑‑‑Petitioners.

Versus

IJAZ ALI and others‑‑‑Respondents

Civil Petition No. 1137 of 2000, decided on 2nd January, 2001.

(On appeal from the judgment dated 6‑6‑2000 of Lahore High Court, Rawalpindi Bench in S.A.O. 2 of 1998).

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

‑‑‑‑Ss. 13(2)(i), (vi) & 13(5‑B)‑‑‑Constitution of Pakistan (1973), Art. l85(3)‑‑‑Ejectment of tenant on ground of default in payment of rent and reconstruction of premises‑‑‑Two Courts below and also High Court on the basis of oral as well as documentary evidence on record had concurrently found that the tenant was a defaulter in the payment of rent of ten months and that landlord required the premises for reconstruction‑‑‑Concurrent judgment of Courts below based on record and cogent and valid reasons, could not be interfered with ‑‑‑Ejectment of tenant having not been ordered solely on the ground of reconstruction, but also on the ground of non­payment of rent, he would not be entitled to the benefit of S.13(5‑B). West Pakistan Urban Rent Restriction Ordinance, 1959 for restoration of premises after reconstruction of same.

Habibul Wahab‑ul‑Khairi, Advocate Supreme Court for Petitioners.

Bilal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd January, 2001.

2001 SCMR 1700

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and

Javed Iqbal, JJ

MUHAMMAD AKHTAR‑‑‑Petitioner

Versus

Mst. MANNA and 3 others‑‑‑Respondents

Civil Petition No.278‑K of 2000, decided on 4th July, 2000.

(On appeal from the judgment dated 3‑4‑2000 of the High Court of Sindh, Bench at Sukkur, passed in Civil Revision No.77 of 1996).

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

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑­Interference of High Court in exercise of revisional jurisdiction‑‑‑Different view on reappraisal of evidence by High Court in exercise of its jurisdiction under S.115, C.P.C. could not be a ground for interference with such findings of fact of the two Courts below‑‑‑Where, however, the concurrent findings of ‑fact by the Courts below were perverse, arbitrary or fanciful the same could not be termed as 'sacrosanct' and could be interfered with.

2000 SCMR 431 and 2000 SCMR 974 ref.

(b) Power of attorney‑‑‑

‑‑‑‑ Interpretation of‑‑‑Implementation of power of attorney‑‑‑Power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication.

AIR 1928 Bom. 225 and Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.30‑‑‑Evidence‑‑‑Admission‑‑‑Fact not challenged during the evidence‑‑‑Effect‑‑‑Where a fact asserted by one party remains unchallenged, the same amounts to admission on the part of other party.

(d) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Misreading and non‑reading of evidence‑‑‑High Court reversing the judgment of Lower Appellate Court‑‑‑Validity‑‑‑Where the evidence had not been examined in depth, it was a case of sheer misreading and non‑reading of evidence resulting in serious miscarriage of justice‑‑‑High Court had rightly reversed such judgment of Lower Appellate Court‑‑­Judgment of High Court was free from any legal infirmity and the same did not call for any interference.

(e) Islamic Law‑

‑‑‑‑ Gift‑‑‑Hiba‑bil‑Iwaz‑‑‑Non‑delivery of possession‑‑‑Mutation in the name of donee ‑‑‑Effect‑‑‑Where possession of subject land was never handed over to the donee, mutation simpliciter could not be considered as an exclusive proof of ownership which was a presumption subject to rebuttal‑‑‑Handing over of the possession was an important ingredient of Hiba‑bil‑Iwaz.

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision‑‑‑Mis­readtnb and non‑reading of evidence‑‑‑Concurrent findings of fact by the Courts below‑‑‑High Court reversing judgment of Lower Appellate Court‑‑­Judgment and decree of Trial Court was affirmed by Lower Appellate Court but the same was reversed by High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Where there had been miscarriage of justice on account of the fact that the Trial and Appellate Courts had not appreciated the evidence properly and with due care and caution, the concurrent findings had become amenable to the revisional jurisdiction of High Court‑‑­Revisional jurisdiction having rightly been exercised by the High Court leave to appeal was refused.

2000 SCMR 431 and 2000 SCMR 974 ref.

Syed Nasir Hussain Jafri, Advocate Supreme Court/Advocate‑on­‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th July, 2000:

2001 SCMR 1707

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

ANWARUL HAQ SIDDIQUI‑‑‑Petitioner

Versus

HIGH COURT OF SINDH through its

Registrar and others‑‑‑Respondents

Civil Petition No. 189‑K of 2000, decided on 8th December, 2000.

(On appeal from the judgment/order dated 28‑2‑2000 passed by High Court of Sindh, Karachi in Service Appeal No.6 of 1998).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.212(3)‑‑‑Civil service‑‑‑Adverse remarks, expunction of ‑‑‑Adverse remarks were sought to be expunged on the grounds firstly that there was an inordinate delay in communication of same and secondly that instructions With regard to recording and countersigning the same had not been followed by the Authorities‑‑‑Adverse remarks against civil servant having been communicated to him within a month of the countersigning of the same, there was no delay as alleged by the civil servant‑‑‑Instructions with regard to recording and countersigning remarks being directory and not mandatory in nature, non‑observance of the same would not adversely affect the action of the Competent Authority‑‑‑Judgment of Tribunal below could not be interfered with in circumstances.

Chief Secretary, Government of Punjab v. Muhammad Zaffer and another 1999 SCMR 1587 ref.

Petitioner in person.

Suleman Habibullah, Additional Advocate‑General for Respondents.

Date of hearing: 8th December, 2000.

2001 SCMR 1709

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and

Nazim Hussain Siddiqui, JJ

MUHAMMAD AFZAL and another‑‑‑Petitioners

Versus

D.R.O. and another‑‑‑Respondents

Civil Petition No. 2154‑L of 2001, decided on 28th June, 2001.

(On appeal from the judgment dated 20‑6‑2001 of the Lahore High Court, Lahore passed in W. P. No. 10486 of 2001).

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑ S. 8‑‑‑Election of Nazims and Naib Nazims on seats of peasants/ workers‑‑‑Non‑Muslim was not disqualified to contest election against said seats‑‑‑Election could be contested by any person irrespective of his religion for the said seats, all the voters, whether Muslims, or non‑Muslims, would cast votes jointly ‑‑‑Apprehension that for election of Nazim and Naib Nazim, the Muslim community may not be bound down to cast votes in favour of non‑Muslim panel only and non‑Muslim in favour of Muslim panel was held to be baseless ‑‑‑All voters irrespective of their religion would jointly cast votes in favour of any of the contesting panels.

It is clear from the scheme of section 8 of the Punjab Local Government Elections Ordinance, 2000 that against the seats reserved for Muslims, only Muslims would contest and only Muslim voters would cast their votes qua the elections of the said seats whereas the seats reserved for minority, election would be contested by a candidate from the said class only and only non‑Muslim voters would cast votes for the said seats. As regards other seats of peasants/workers, Nazim and Naib Nazim, it is not provided that non‑Muslim was disqualified to contest election against these seats, therefore, it is clear that against all these seats, the election could be contested by any person irrespective of his religion and for the election of these seats, all the voters whether Muslim or non‑Muslim would cast votes jointly, therefore, apprehension that for election of Nazim and Naib Nazim, the Muslim community may not be bound down to cast votes in favour of non‑Muslim panel only and non‑Muslim in favour of non‑Muslim panel is baseless. All the voters irrespective of their religion would jointly cast votes in favour of any of the contesting panels.

Ch. Muhammad Zahoor Nasir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th June, 2001.

2001 SCMR 1712

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

PROVINCE OF PUNJAB and others‑‑‑Petitioners

Versus

AZHAR ABBAS and others‑‑‑Respondents

Civil Petitions Nos. 1026‑L to 1056‑L, 1208‑L to 1243‑L, 1265‑L 1268‑L, 1305‑L to 1319‑L and 1442‑L of 2001, decided on 11th July, 2001.

(On appeal from judgment dated 30‑11‑2000, passed by the Punjab Service Tribunal in Appeals Nos.936/96, 2661/97, 1170/97, 1480/97, 1305/98, 1213/93, 1161/93, 2068/97, 942/96, 1159/93, 1157/93, 2660/97, 1775/97, 98/97, 1259/95, 1753/97, 166/97, 616/97, 1263/93, 494/97, 113/93, 1162/93, 1759/97, 1319/97, 1139/93, 1182/93, 1752/97, 1183/93, 1370/97, 221/97, 1774/97, 152/96, 123/93, 1164/93, 1166/93, 1189/93, 1204/93, 1630/96, 1784/94, 354/95, 1184/95, 309/96, 799/96, 922/96, 1020/96,1083/96,1134/96,1366/96, 1367/96,1393/96, 1849/96, 1850/96, 2118/96,4821/96,1150/97,1272/97,1360/97,1556/97, 1754/97, 1864,97, 3829/97, 907/98, 2302/99, 2301/99, 2303/99, 2304/99, 464/94, 393/95, 188/96,798/94,1188/94,342/96, 1559/96, 99/97,100/97, 101/97, 102/97, 103/97, 104/97, 105/97, 107/97, 1491/97, 1492/97 and 2584/97).

(a) Punjab Civil Servants Act (VIB of 1974)‑‑‑

‑‑‑‑Ss. 2(1)(a), 5(1) & 10(1)(ii)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Ad hoc appointments in different departments of Provincial Government‑‑‑Such appointments, on expiry of initial periods, mostly of six months, were continued and period of their ad hoc appointments were extended from time to time till their termination from services by the various orders issued by their respective departments‑‑‑Service Tribunal, on appeal, found that the employees were entitled to hold and continue their positions as they were holding at the time of order of termination till such time the regular selectees were made available through prescribed method and in accordance with law by the respective departments‑‑‑Validity‑‑‑Contention of the Provincial Government was that Service Tribunal had failed to appreciate that the Chief Minister of the Province had made these appointments to achieve political motives and the departments had to implement the order of the Chief Minister owing to undue political pressure, although the order was passed by the Chief Minister without observing prescribed procedure; that the Service Tribunal also failed to appreciate that the Government was under no legal obligation to extend the period of service of an ad hoc appointee, who was liable to be terminated if the Government had not granted extension in service under the relevant Rules; that the Government was within its right to terminate the services of such ad hoc employees under S.10(3) of the Punjab Civil Servants Act, 1974 and that the availability of regular selectees was not a condition precedent for termination of ad hoc employees under S.10(3) of the Act which was a self‑contained code notwithstanding the provisions of S.10(1) & (2) of the Act‑‑‑Leave to appeal was granted by the Supreme Court holding that the case involved substantial question of law of public importance as raised by the Provincial Government.

Federation of Pakistan v. Rais Khan 1993 SCMR 609; Abdul Maid Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Jaffar Ali Yousafzai v Islamic Republic of Pakistan PLD 1970 Quetta 115; WAPDA v. Muhammad Hussain Gul 1993 SCMR 2337; Secretary Education, Civil Secretariat, Lahore v. Nasira Iqbal C.P. No.768‑L of 1997; Gohar Masood v. Secretary, Health Department 2001 SCMR 1128 and Director. Social Walfare, N.­W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 distinguished.

Ghulam Sarwar v. Province of Punjab 1982 SCMR 46; Muhammad Shahbaz Cheema v. Province of Punjab 1981 SCMR 469; Muhammad Azam Ali v. Government of the Punjab through Chief Secretary 1985 SCMR 1408; Nasrullah Khan v. The Registrar, Peshawar High Court, Peshawar PLD 1993 SC '195; Federation of Pakistan v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Ashraf v. Government of Punjab PLJ 1998 Tr.C. (Services) 77; PLD 1984 FSC 34; Pakistan v, Public‑at‑Large PLD 1987 SC 304; In re: Abdul Jabbar Memon and others 1996 SC MR 1349 ref.

(b) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 11(3)‑‑‑Constitution of Pakistan (1973), Art. 203‑F‑‑‑Provisions of S.11(3) of the Civil Servants Act, 1973 (corresponding to the provisions of S.10(3) of the Punjab Civil Servants Act, .1974) were not repugnant to the Injunctions of Islam.

Maqbool Elahi Malik, A.‑G., Punjab with Fauzi. Zafar, Asstt. A.‑G., Punjab for Petitioners.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner (in C.P.No.1442‑I. of 2001 and for Respondent in C. P. No. 1307‑L of 2001).

Malik Noor M. Awan, Advocate Supreme Court for Respondents (in C. Ps. Nos.1027, 1028, 1030, 1040, 1048 and 1056‑L of 2001.

M.S. Khattak. Advocate‑on‑Record for Respondents (in C.Ps. Nos. 1633 ‑L of 2001 and 1053‑L of 2001)

Date of hearing: 9th July, 2001.

2001 SCMR 1727

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary

and Javed Iqbal, JJ

MUHAMMAD AZIZ‑‑‑Petitioner

Versus

Haji KAMAL KHAN and others ‑‑‑ Respondent

Criminal Petition No.25‑Q of 2001, decided on 27th June, 2001.

(On appeal from the judgment dated 21‑5‑2001 of the High Court of Balochistan, Quetta passed in Criminal Bail Application No. 105 of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302, 337‑A, 337‑D, 337‑F, 147 & 149‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail, grant of‑‑­Validity‑‑‑Concept of "further inquiry"‑‑‑Applicability‑‑‑Requirements‑‑­Contention of the petitioner assailing the grant of bail was that the accused alongwith other, co‑accused persons duly armed with, knives and Dandas visited his shop and launched murderous assault and resultantly two persons sustained injuries and subsequently one expired‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether the concept of further inquiry could be pressed into service where sufficient incriminating material connecting the accused with the commission of alleged offence had come on record by ignoring the dictum as laid down in cases titled Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 and Arbab Ali v. Khamiso and others 1985 SCMR 195; whether bail on the basis of further inquiry could be granted without fulfilling other conditions of subsection (2) of S. 497, Cr.P.C. when accused was not entitled to get this concession in view of the law as laid down in Asmat Ullah Khan v. Bazi Khan PLD 1988 SC 621, Shah Zaman v. State PLD 1994 SC 65, Arbab Ali v. Khamiso 1985 SCMR 195 and Muhammad Sadiq v. Sadiq PLD 1985 SC 182: "Unless it is herd that there were no reasonable grounds to believe that accused had committed a non‑bailable. offence" (Mst. Rahman Jan v: Abdur Rehman 1991 SCMR 1849); whether the provision as contained in S. 497(2) had been misconstrued, misinterpreted, wrongly applied or the impugned order was contrary to the principles laid down by Supreme Court as well as those governing the safe administration of criminal justice and whether the medical report indicating in a categorical manner that "the deceased died of acute heart attack, caused by bone marrow embolism which was a common sequelae in such hurts i.e. fracture of neck of left femur (grievous hurt)," could have been ignored though confirmatory in nature yet supported by ocular evidence, without assigning any reason by the High Court.

Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83; Arbab Ali v. Khamiso and others 1985 SCMR 195; Asmat Ullah Khan v. Bazi Khan PLD 1988 SC 621; Shah Zaman v. State PLD 1994 SC 65; Muhammad Sadiq v. Sadiq PLD 1985 SC 182 and Mst. Rahman Jan v. Abdur Rehman 1991 SCMR 1849 ref.

M.Zafar, Advocate Supreme Court for Petitioner. Nemo for Respondents.

Date of hearing: 27th June, 2001

2001 S‑C M R 1729

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Hamid Ali Mirza, JJ

Miss GUL ROOKH SARFARAZ and others‑‑‑Petitioners

Versus

GOVERNMENT OF N.‑W.F.P. through Chief Secretary, N‑.‑W.F.P. and others‑‑‑Respondents

Civil Petitions Nos.474‑P and 494‑P of 2000, decided on 2nd January, 2001

(On appeal from the judgment dated 13‑12‑2000 of Peshawar High Court, Peshawar in W. P. No.‑ 1270 of 2000).

Rules of Business (Federal Government), 1973.‑‑--

‑‑‑‑Sched. 2,----- Entry No.36(i)(o)‑‑‑Rules of Business (Government of the North‑West Frontier Province), 1985, pares. 4 & 41‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Educational institution‑‑‑Admission of candidates from FATA on the reserved seats in the Medical and Dental Colleges of N.‑W.F.P.‑‑‑Petitioners in their Constitutional petition before High Court had challenged the Admission Policy with regard to admission in Medical and 13ental Colleges on the grounds that Provincial Government had no authority to form policy which was inconsistent to the policy already notified by the Federal Government and that the same ‑was discriminatory‑‑­Constitutional petition having been dismissed by the High Court; petitioners filed petition for leave to appeal before Supreme Court against the order of High Court‑‑‑Validity‑‑‑Petitioners had failed to point out any law or regulation which could be said to be in conflict with the framing of the Admission Policy‑‑‑Medical Colleges were being managed and run by the Provincial Government and under para. 41 of the Rules of Business (N.­W.F.P. Government), 1985, the matter with regard to admission of candidates from Tribal Areas to medical and other professional colleges against reserved seats, was in the domain of the Provincial Government‑‑­Admission Policy was framed in consultation with Secretary, Government of Pakistan in the Joint Admission Committee and same was made for the advancement of the socially backward people of that area in their larger interest‑‑‑High Court having given cogent and valid reasons for the dismissal of the Constitutional petition no exception could be taken to the finding of High Court.

I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 ref.

Zahoorul Haq, Senior Advocate Supreme Court for Petitioners (in C.P. No.474‑P of 2000).

Said Rehman, Advocate Supreme Court for Petitioners (in C.P. No.494‑P of 2000).

Salahuddin Khan, Deputy Attorney‑General and Imtiaz Ali, Additional Advocate‑General, N.‑W.F.P. for Respondents.

Date of hearing: 2nd January, 2001

2001 SCMR 1733

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

FEDERATION OF PAKISTAN, CHAMBER OF COMMERCE AND

INDUSTRY, KARACHI---Petitioner

Versus

ALI AHMED QURESHI---Respondent

Civil Petition No. 196-K of 2000, decided on 27th October, 2000.

(On appeal from the judgment dated 29-11-1999 of the High Court of Sindh in H.C.A. 30 of 1995).

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

----Art. 185(3)---Service contract---Legal incidents---Master and servant, relationship of---Arbitrary dismissal from service---Service Rules, non-­adherence to---Contract employee (respondent) was prematurely retired from service by the petitioner organisation without assigning any cause---Suit for damages was filed against the organisation and the same was decreed---High Court modified the decree after adjustment of certain amounts---Contention of the organisation was that the contract employee was neither entitled to general or special damages, nor he could lawfully claim his salary and allowances till attaining the age of 58 years which was prescribed as age of retirement in the organisation---Validity---Contract of employment would be governed by the Regulations framed by the organisation for its employees and the same had binding force for all intents and purposes---Service contracts were entered into for strict adherence rather than for gross violation and breach of their terms---Petitioner organisation having flagrantly violated and acted in contravention of its own rules, could not be allowed to wriggle out of its obligation to perform the covenants of the contract---High Court was conscious of the fact that in the event of contract employee being allowed to remain in service was not entitled to notice pay and thus, such amount was rightly adjusted from the decretal amount---Employee, in the event of the normal employment with the organisation was legally entitled to bonus and all other allowances paid to its other employees and as no evidence in rebuttal was adduced by the organisation it was not entitled to make grievance of the circumstances that the contract employee was not entitled to such allowances----Leave, to appeal was refused.

Muhammad Afzal v. House Building Finance Corporation PLD 1976 Kar. 1121 distinguished.

(b) Master and servant---

---- Doctrine of master and servant relationship---Personal service, contract of---Arbitrary dismissal from service---Effect---Such contract cannot be specifically enforced but in law, in the event of arbitrary dismissal or unwarranted termination of employment, an employee is always entitled to sue for damages---In such a case the employee is legally entitled to claim his wages, allowances and other benefits, which would have been otherwise due and payable to him under the contrary of employment.

Akhtar Ali Mehmood, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Miss Wajahat Niaz, Advocate-on-Record for Respondent.

Date of hearing: 27th October, 2000.

2001 SCMR 1738

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and

Hamid Ali Mirza, JJ

MUHAMMAD SALIM and 4 others‑‑‑Appellants

Versus

FAZAL MUHAMMAD and another‑‑‑Respondents

Criminal Appeal No.242 of 2000, hard on 26th January, 2001.

(On appeal from the order dated 10‑4‑2000 of Lahore High Court, Lahore in Criminal Revision No.322 of 1999).

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

‑‑‑‑S.204‑‑‑Issue of process‑‑‑Principles‑‑‑Aggrieved person, no doubt has, a right to agitate his grievance for redress either before the police or before the Court, but where no justification and proper explanation is given for inordinate delay and the material produced by him is insufficient, Criminal Court would be justified in not issuing the process‑‑‑Process is not to be issued in every criminal case as a matter of course‑‑‑Each and every complaint is to be scrutinised and the material produced is to be examined and the process is issued only when the material produced is found to be sufficient.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/148/149‑‑‑Criminal Procedure Code (V of 1898), Ss.203 & 204‑‑‑Case found fit for issuance of process by High Court‑‑‑Validity‑‑‑Trial Court after having received the enquiry report did not find any sufficient ground for proceeding and consequently dismissed the complaint‑‑‑High Court, however, in exercise of its revisional jurisdiction set aside the said order directing the Trial Court to proceed with the complaint in accordance with law‑‑‑Complainant undoubtedly had a right for redress of his grievance, but the same was subject to the condition that sufficient ground for issuance of process was made out‑‑‑Accused had already got registered the F.I.R. regarding the occurrence and the complainant about 14 months thereafter had brought his counter‑version through a private complaint‑‑‑No sufficient ground was available for issuance of process against the accused in the complaint case‑‑‑Impugned order passed by High Court was, therefore, not sustainable in law and the same was consequently set aside‑‑‑Appeal was allowed by Supreme Court accordingly.

M.A. Zafar, Advocate Supreme Court for Appellants.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 26th January, 2001.

2001 SCMR 1742

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and

Hamid Ali Mirza, JJ

MUHAMMAD YOUSUF BUSAL‑‑‑Petitioner

Versus

JAMIL AKHTAR KIYANI and others‑‑‑Respondents

Criminal Petition No.44‑K of 2000, decided on 21st August, 2000.

(On appeal from the order of the High Court of Sindh dated 13‑7‑2000 passed in Criminal Revision No.68 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.342/365‑A/506‑B/149/385/395/109‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Transfer of case to Special Court‑‑‑Offence according to the F.I.R. and the deposition of the complainant would, ex facie, fall under S. 365‑A, P.P.C. which was triable by the Special Court established under the Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑‑Trial Court as well as the High Court had not considered the submission of the complainant in its proper perspective‑‑‑Petition for leave to appeal was consequently converted into an appeal and allowed and the case was transferred from the Sessions Court to the Special Court for disposal according to law.

Allah Din v. The State 1994 SCMR 717 and Mst. Neelam Mawaz v. The State PLD 1991 SC 640 ref.

Mir Muhammad Sheikh, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Petitioner.

Gul Zaman Khan, Advocate Supreme Court for Respondents Nos. l to 5.

Suleman Habibullah, Advocate Supreme Court for Additional Advocate‑General for the State.

Date of hearing: 21st August, 2000

2001 SCMR 1745

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

RAHAB --- Petitioner

Versus

MUHAMMAD ISMAIL and 2 others---Respondents

Criminal Petition Np.98-K and Jail Petition No.233 of, 1999, decided on 29th November, 2000.

(On appeal from the judgment/order dated 28-10-1999 passed by High Court of Sindh, Larkana Bench, in Criminal Jail Appeal No.(S)26 of 19981 of 1860)---

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal of accused by High Court---Accused were not named in the F.I.R.---None of the eye-witnesses had ascribed any overt act to the accused which could establish their involvement in the case---Overt act, if any, ascribed by the witnesses was belied by the medical evidence---High Court had properly appreciated the evidence and rightly acquitted the accused--­Leave to appeal was refused to complainant by Supreme Court in circumstances.

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

----S.302/34---Appraisal of evidence---Accused were named in the F.I.R.--­Eye-witnesses including the injured witnesses had implicated the accused in the case ascribing specific role to each of them---Courts below had rightly arrived at the conclusion about the guilt of the accused---Impugned judgment did not suffer from any misreading 'or non-reading of evidence---Conviction and sentence of accused were upheld in circumstances---Jail petition was dismissed accordingly.

Akhlaq Ahmad Siddiqui, Advocate Supreme Court for Petitioner.

Suleman Habibullah, Additional Advocate-General, Sindh for the State.

Date of hearing : 29th November, 2000

2001 SCMR 1748

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

ALI GOHAR JATOI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition Nb.23‑K of 2000, decided on 29th August, 2000

(On appeal from the judgment dated 30‑3‑2000 of the High Court of Sindh at Karachi in Special Anti‑Terrorism Appeal No. 177 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑B‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Courts below had given concurrent findings of fact with regard to the snatching of the vehicle by the accused and his two absconding companions, recovery of the vehicle at the pointation of accused and about his identity‑‑‑No misreading of evidence and no miscarriage of justice had occasioned in the case‑‑‑Leave to appeal was declined to accused by the Supreme Court accordingly.

Ali Gohar Soomro, Advocate with permission of the Court for Petitioner.

Sarwar Khan, Additional Advocate‑General, Sindh for the State.

Date of hearing: 29th August, 2000.

2001 S C M R 1750

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

IAMMAD JAVED KHASKHELT‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.30‑K of 2000, decided on 23rd August, 2000.

(On appeal from the judgment of the High Court of Sindh. dated 25‑4‑2000 passed in S.T.A. Appeal No.93 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 324‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Charge‑sheet had been properly submitted before the Court having jurisdiction‑‑‑Trial Court on proper assumption of jurisdiction had convicted and sentenced the accused‑‑­High Court in appeal had rightly modified the sentence‑‑‑Accused was proved by the evidence on record to have committed a scheduled offence‑‑­Impugned judgment did not suffer from any illegality and jurisdictional error warranting any interference by Supreme Court‑‑‑Leave to appeal was refused to accused by Supreme Court accordingly.

Abdul Haleem Pirzada, Advocate Supreme Court for Petitioner.

Sarwar Khan, Additional Advocate‑General for the State.

Date of hearing: 23rd August, 2000.

2001 S C M R 1754

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Syed Deedar Hussain Shah, JJ

Dr. MUHAMMAD USMAN FAROOQI and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.39‑K of 2000, decided on 11th December, 2000.

(On appeal from the judgment/order, dated 21‑6‑2000, of the High Court of Sindh, Karachi, passed in Accountability Appeal No.3 of 2000).

Ehtesab Act (IX of 1997)‑‑‑

‑‑‑‑S.4‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.10‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑High Court, after having considered the contentions of the accused, had set aside their convictions and remanded the case to the Trial Court for retrial by providing full opportunity to them‑‑‑Trial of accused was likely to be concluded within a shortest possible time‑‑‑Findings of High Court were based on the principles laid down by Supreme Court‑‑‑Impugned judgment having not suffered from any illegality or irregularity, was not open to exception‑‑‑Leave to appeal was refused by Supreme Court to accused in circumstances.

Aminul Hoque v. Crown PLD 1952 FC 63; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Aslam v. Crown PLD 1953 FC 115; Asir‑ud‑Din Chaudhry v. The Crown PLD 1953 FC 125; Abdus Sattar v. The Crown PLD 1954 FC 120; Anwar and another v. The Crown PLD 1955 FC "185; Chutto v. The State PLD 1958 (W.P.) Kar. 18; Abdul Rashid v. The State PLD 1962 SC 249; Basanta Kumar Chaudhry v. The State PLD 1962 Dacca 61 and Mir Ahmed v. The State PLD 1962 SC 489 ref.

Aitzaz Ahsan, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioners.

S. Tariq Ali, Standing Counsel and Sarwar Khan, Additional Advocate‑General, Sindh for Respondent (on Court's Notice).

Date of hearing: 11th December, 2000.

2001 S C M R 1757

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Nazim Hussain Siddiqui. JJ

Messrs CONTINENTAL FOODS (PVT.) LIMITED---Petitioner

versus

AITZAZ AHMED KHAN---Respondent

Civil Petition No.948 of 2001, decided on 16th April, 2001.

(On appeal from the judgment dated 28-3-2001 of these Lahore High Court passed in F.A.O. No.23 of 2001).

High Court (Lahore) Rules and Orders---

---- Vol. V, Chap.3(b), R.1 -(iii)---Constitution of Pakistan (1973), Art. 185(3)---Appeal against order---Divergent plea, raising of ---Ejectment order was passed against the tenant and appeal against the order was assailed before High Court as First Appeal against Order---Appeal was fixed before Single Judge of High Court and the same was dismissed---Contention of the tenant was that the appeal would have been heard by a Division Bench of High Court and not by the Single Judge---Validity---First Appeal against Order, under the provisions of Vo1.V, Chap.3(b), R.1(iii) of High Court (Lahore) Rules and Orders, was to be heard by a Single Judge of the High Court---Where the tenant had itself pleaded and treated the order of Trial Court as an appeal from an order under C.P.C. then the tenant could not argue that the same ought to have been placed before Division Bench of the High Court as Regular First Appeal---Supreme Court refused to accept the plea of the tenant and leave to appeal was refused.

Abid Hussain v. Mst. Afsar Jehan Begum and another PLD 197? SC 1; Soofi Dilawar Hussain Chishti v. Muhammad Afzal 1988 SCMR 43 and Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saddat Ali 1968 SCMR 828 distinguished.

S. Naeem Bukhari, Advocate Supreme Court and M.A. Siddique Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Mansoor Ahmed. Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Respondent

Date of hearing: 16th April, 2001.

2001 S C M R 1760

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

BABAR KHAN GHORI‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.607‑K of 1999, decided on 10th July, 2000.

(On appeal from the judgment dated 24‑8‑1999 of the High Court of Sindh, Karachi, passed in Constitutional Petition No. D‑251 of 1999).

Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑Ss.2 & 3‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Exit Control List‑‑‑Placing name of a person on such list‑‑‑Contention of the petitioner was that unbridled and unfettered discretion had been conferred upon the Executive for placing name of any person on the Exit Control List under the provisions of Exit from Pakistan (Control) Ordinance, 1981 and that there was no criteria for exercise of discretion in general public interest and the provisions of Exit from Pakistan (Control) Ordinance, 1981, had been abused by the Executive inasmuch as a person affected by the action was invariably condemned unheard without prior show‑cause notice‑‑‑Leave to appeal was granted by Supreme Court to examine the contentions.

Miss Naheed Khan v. Government of Pakistan PLD 1997 Kar. 513 ref.

K.M. Nadeem, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 10th July, 2000.

2001 S C M R 1761

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and

Tanvir Ahmed Khan, JJ

GHULAM RASUL and others‑‑‑Appellants

versus

MUHAMMAD YOUSAF and another‑‑‑Respondents

Civil Appeal No.338 of 1995, decided on 29th January, 2001.

(On appeal from the judgment dated 20‑6‑1993 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A. No.76 of 1985).

(a) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para. 25‑‑‑Punjab Pre‑emption Act (I of 1913), S.4‑‑‑Tenant and collateral‑‑‑Superior right of pre‑emption ‑‑‑Scope‑‑‑Rival claims of pre­emption ‑‑‑Two suits were filed one by the appellant and the other by the respondent‑‑‑Appellant's claim was on the basis of collateral while that of the respondent on the basis of tenancy‑‑‑Respondent filed suit under the provisions of para.25 of Land Reforms Regulation, 1972, and the same was decreed by the Revenue Authorities‑‑‑Appellant, instead of assailing the decree before revenue hierarchy filed suit before Civil Court‑‑‑Suit of the appellant was decreed by the Trial Court and the judgment was upheld by the Appellate Court‑‑‑High Court, in exercise of appellate jurisdiction allowed the appeal and the judgment passed by Trial Court and Lower Appellate Court were set aside‑‑‑Validity‑‑‑Appellants did not take any exception to the decree passed by the Revenue Authorities in hierarchy provided under para.25 of Land Reforms Regulation, 1972 and instead took exception to the same before the Civil Court ‑‑‑Pre‑emption suit filed by the respondent was exclusively triable by the Collector and the same could not have been put to scrutiny in the Civil Court‑‑‑Right of pre‑emption granted to tenants under para.25 of Land Reforms Regulation, 1972, was superior in nature and in case of clash, the tenant's right had to prevail‑‑­Supreme Court declined to interfere with the judgment passed by High Court.

Yaseen v. Khan Muhammad and another 1987 SCMR 944 and Ali Hassan and 2 others v. Sardar Khan and others PLD 1990 Lah. 216 ref.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑

‑‑‑‑Para.25(3)(d)‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Suit for possession through pre‑emption ‑‑‑Collector acting as Civil Court‑‑­Provisions of S.12(2), C.P.C.‑‑‑Applicability‑‑‑While deciding such suit, on the basis of tenancy, Collector acting as Civil Court was also vested with the jurisdiction to re‑trace and re‑call his order under S.12(2), C.P.C., if the same was obtained on the basis of fraud and misrepresentation.

Muhammad Saleem Chaudhry, Advocate Supreme Court for Appellants.

Dr. Qazi Mohyuddin, Advocate Supreme Court for Respondents.

Date of hearing: 29th January, 2001.

2001 S C M R 1766

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Iftikhar Muhammad Chaudhry, JJ

Sh. QAMAR JAVID and others ‑‑‑ Petitioners

versus

Sh. HASSAN ALI ‑‑‑Respondent

Civil Petition No.368‑L of 1999, heard on 25th July, 2000.

(On appeal from the judgment dated 16‑12‑1998 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.123/D of 1998/BWP).

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

‑‑‑‑O.XLI, R.27‑‑‑Additional evidence, production of‑‑‑Documents intended to be produced as additional evidence had no bearing on the merits of the case‑‑‑High Court while accepting the revision application filed by the respondent allowed production of additional evidence‑‑‑Validity‑‑‑Supreme Court itself examined the documents sought to be produced in additional evidence and found that the contents of the same had no bearing on the pleas of the parties regarding identification of the properties and the area underneath about which evidence had already been produced by the parties and the same was thoroughly examined by Trial Court and Appellate Courts‑‑‑Such evidence was not at all relevant for the purpose of disposal of the suit on merits‑‑‑Judgment passed by High Court was set aside and application for additional evidence made by the respondent was dismissed‑‑­Petition for leave to appeal was converted into appeal and the same was allowed.

M. Shamshir Iqbal Chughtai, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

M.Q. Salim, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Respondent.

Date of hearing: 25th July, 2000.

2001 S C M R 1768

[Supreme Court of Pakistan]

Present. Ch. Muhammad Arif, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

FEDERATION OF PAKISTAN through Secretary Finance‑‑‑Petitioner

versus

GULSHAN SPINNING MILLS LIMITED and another‑‑‑Respondents

Civil Petitions Nos.317‑K and 318‑K of 1999, decided on 31st August 2000.

(On appeal from the judgment dated 27‑11‑1998 of the High Court of Sindh, Karachi in Constitutional Petitions Nos.D‑647 and 648 of 1989).

Supreme Court Rules, 1980‑‑‑

‑‑‑‑O. XXXIII, R.6 & O.XIII, R.1‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Condonation of delay‑‑‑Petition barred by time‑‑‑Time consumed by 'Government during process of case in the Law and Justice Ministry‑‑‑Validity‑‑‑Government had to first cross the hurdle in their way of explaining each day's delay‑‑‑Reason of delay given by the Government was not accepted by Supreme Court‑‑‑When applications were made by the Government for obtaining certified copies of the judgment, the petition had already become barred by time‑‑‑Government had made no efforts to explain the delay in resorting to the petition under Art.185(3) of the Constitution‑‑­Petition was dismissed as barred by time.

Muhammad Farooq Imam v. Claims Commissioner PLD 1964 SC 585; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119; Sardar Abdul Hafeez Khan v. Sardar Muhammad Khan Loni NLR 1995 SCJ 185 (sic) and Muhammad Ismail v. Abdul Rashid 1983 SCMR 168 ref.

A.A. Siddiqui, Advocate‑on‑Record for Petitioner.

Makhdoom Ali Khan, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents.

Date of hearing: 30th August, 2000.

2001 S C M R 1771

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

GOVERNMENT OF PAKISTAN through Secretary (Machinery), Central Board of Revenue, Islamabad and another---Petitioners

versus

Messrs FAUJI CEMENT COMPANY LIMITED---Respondent

Civil Petition No.352-K of 2000, decided 24 October 2000.

(On appeal from the judgment o the High Court of Sindh, dated 18-5-2000 passed in Constitutional Petition No.5 of 1998).

Customs Act (IV of 1969)---

----S.19---Notifications S.R.O. 286/1/84, dated 4-4-1984 and S.R.0.484(1)/92, dated 14-5-1992---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art. 185(3)---Locus poenitentiae, principle of---Applicability---Contention of the Authorities was that High Court did not apply the principle of locus poenitentiae as contemplated by S.21 of General Clauses Act, 1897 furthermore, the law laid down by Supreme Court in case of Al-Samrez Enterprise v. Federation of Pakistan (1986 SCMR 1917) had not been followed---Leave to appeal was granted by Supreme Court to consider the contention and related questions with a view to ensure whether the principles of law laid down by Supreme Court on the subject had been rightly adhered to.

Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917 ref.

Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioners.

Talib Rizvi, Advocate Supreme Court for Respondent.

Date of hearing: 24th October, 2000.

2001 S C M R 1773

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Tanvir Ahmed Khan, JJ

MUNIR AHMAD DAR‑‑‑Petitioner

versus

IMRAN and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.640/L of 2000, decided on 17th April, 2001. '

(On appeal from the judgment dated 17‑10‑2000 of the Lahore High Court, Lahore, passed in Criminal Appeal No.325 of 1994 with Murder Reference No. 183 of 1994).

Penal Code (XLV of 1860)‑‑‑

---‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art‑185(3) ‑‑‑Acquittal of accused by High Court‑‑‑High Court had acquitted the accused solely on the ground that the direct evidence being not available against them, prosecution had tried to establish its case by circumstantial evidence consisting of extra­judicial confession, evidence of last seen and the recoveries effected from the accused‑‑‑Extra judicial confession having been made by the accused to a stranger had been rightly ruled out of consideration by the High Court, which even otherwise was not in consonance with the medical evidence as regards the mode of killing the deceased‑‑‑Other evidence even if relied upon was not sufficient to sustain conviction‑‑‑Judgment acquitting the accused did not suffer from any illegality or infirmity‑‑‑Leave to appeal was declined to the complainant accordingly.

M.A. Zafar, Advocate Supreme Court for Petitioner Nemo for Respondents.

Date of hearing: 17th April, 2001.

2001 S C M R 1775

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Mian Muhammad Ajmal and Javed Iqbal, JJ

MUHAMMAD ABDULLAH KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.88 of 1997, decided on 10th April, 2001

(On appeal from the order of this Court, dated 7‑6‑1995 passed in Criminal Petition No. 135‑L of 1995).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 306 & 308‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Leave to appeal was granted by Supreme Court to accused to examine the question as to whether the accused being not liable to Qisas in view of the provisions contained in S.306 read with S.308, P.P.C., could have been punished under S.302, P.P.C. or otherwise.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 306 & 308‑‑‑Appraisal of evidence‑‑‑Deceased was survived by a two years' old daughter who was admittedly the Wali of the deceased and descendant of the accused‑‑‑Accused, therefore, was not liable to Qisas in view of the provision as enumerated in S.306, P.P.C. and he could only be convicted under S. 308(2), P.P.C. which did not provide the sentence of death or imprisonment for life‑‑‑Conviction of accused under S.302, P.P.C. was consequently set aside and instead he was convicted under S.308(2), P.P.C. to undergo 14 years' R.I. and to pay Diyat‑‑‑Appeal was accordingly dismissed with the said modification.

Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885 ref.

Zafar Ullah Khan, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Appellant.

Ghulam Ahmad, Advocate Supreme Court for the State.

Date of hearing: 10th April, 2001.

2001 SCMR 1779

[Supreme Court‑of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwan Das and Tanvir Ahmed Khan, JJ

RIAZ HUSSAIN ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Petition No.35‑L of 2001, decided on 19th April, 2001.

(On appeal from the order of Lahore High Court, Lahore dated 19‑12‑2000 passed in Criminal Miscellaneous No.7099‑B/2000)

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

‑‑‑‑S. 426(1)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑­Suspension of sentence‑‑‑Police opinion‑‑‑Opinion of the Investigating Officer finding the accused innocent in respect of the charge against him is totally irrelevant after the finding of guilt recorded, on evaluation of evidence by a competent Court of law.

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

‑‑‑‑Ss. 497(5) & 426(1)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suspension of sentence‑‑­Cancellation of bail granted to accused by High Court under S.426(1), Cr.P.C.‑‑‑Neither proper nor just to comment upon the merits of the evidence, after a verdict of guilt having been recorded by a competent Court of law‑‑‑Opinion of the Investigating Officer with regard to the guilt or innocence of the accused was irrelevant and of no avail for the suspension of his sentence‑‑ ‑Supreme Court would not hesitate to interfere with the exercise of discretion in exceptional cases where such exercise was arbitrary, perverse or contrary to the settled principles of law‑‑‑High Court under S.426(1), Cr.P.C. had exercised its discretion in a manner which was not warranted by law‑‑‑Petition for leave to appeal, was consequently converted into appeal and the impugned order suspending the sentence of accused was set aside.

Altaf Hussain v. The State PLD 2000 Lah. 216 and Sultan Khan v­Amir Khan PLD 1977 SC 642 ref

Malik Saeed Hassan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

M.A. Zafar, Advocate Supreme Court and Syed Abul Asim Jafri Advocate‑on‑Record for Respondent No.2.

Miss Yasmin Sehgal, Additional Advocate‑General for the State

Date of hearing: 19th April 2001.

2001 S C M R 1782

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

NAZIHA GHAZALI‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Petition No. 41‑K of 2000, decided on 25th August, 2000, On appeal from the order dated 21‑6‑2000 of the High Court of Sindh in Criminal Miscellaneous Application No.504 of 1999).

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑S. 491‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Custody of the minor‑‑‑Petitioner (mother) had filed the application under S.49I, Cr.P.C. after 5/6 months of the alleged unlawful removal of the minor from her custody without giving any explanation as to why she had kept quiet for such a long period‑‑‑Petitioner in such circumstances would have either filed a report with the police or made a complaint to the concerned Authorities against the respondent (father)‑‑‑Conduct of the petitioner, prima facie, showed that the minor was not removed forcibly by the respondent from her custody‑‑‑Custody of the minor with his father (respondent), therefore could not be said to be illegal or unlawful within the meaning of S.491, Cr.P.C.‑‑­No proceedings under the Guardians and Wards Act, 1890 were even pending before the Family Court‑‑‑Provisions of S.491, Cr.P.C. were not available for declaring .any person as guardian or for determining all the questions relating to the custody of the minor because the final decision of the regular custody was to be decided in the proceedings initiated by the party claiming the custody of the minor before the Guardian Court‑‑‑Leave to appeal was refused to the petitioner by the Supreme Court in circumstances.

Muhammad Javed Umra v. Uzma Vahid 1988 SCMR 1891; Muhammad 'Khalil‑ur‑Rehman v. Shabana Rahman PLD 1995 SC 633 and Ahmed Sami v. Saadi Ahmed 1996 SCMR 268 ref.

Rasheed A. Razvi, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Petitioner.

Mushtaque Memon, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondent. No.2.

2001 S C M R 1785

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

Syed ZULFIQAR ALI and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petitions No.24 to 27‑K of 2000, decided on 29th August, 2000.

(On appeal from the common judgment of the High Court of Sindh dated 7‑4‑2000 passed in Special Anti‑Terrorism Appeals Nos. 172 to 174 and 178 of 1999).

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S. 7‑B‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Accused had snatched the car from the complainant at the pistol point and took away the same which was subsequently recovered by the police‑‑‑Offence having been committed by the accused punishable under S.7‑A of the Anti‑Terrorism Act, 1997, they had been rightly convicted by the Trial Court under S.7‑B of the said Act‑‑‑Two unlicensed T.T. Pistols were also recovered from the accuses on their arrest‑‑‑Second version that the ;accused were participants of a rally was not borne out from the record‑‑‑One accused was injured during the incident which fact was supported by medical evidence‑‑‑Courts below had properly appreciated and analysed the evidence without misreading and non­reading of the same‑‑‑Impugned judgment also did not suffer from any jurisdictional error‑‑‑Leave to appeal was refused by Supreme Court to accused in circumstances.

Pir Shabir Shah v. Shad Muhammad PLD 1995 SC 66 distinguished.

Shafi Muhammadi, Advocate Supreme Court for Petitioners. Sarwar Khan. Additional Advocate‑General, Sindh for the State, Date of hearing: 29th August, 2000.

2001 S C M R 1789

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

MUHAMMAD SIDDIO ‑‑‑ Petitioner

versus

CIVIL JUDGE, ATTOCK and others‑‑‑Respondents

Civil Petition No. 113.8 of 2000, decided o d January, 2001.

(On appeal from the judgment ate 6‑6‑2000 of Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.1116/98).

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

‑‑‑‑Ss.13 & 17‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Execution of ejectment order ‑‑‑Ejectment order passed against tenant having attained finality, Court in its ejectment order granted two months' time to the tenant with effect from 4‑11‑1997 for handing over the possession of the premises to the landlord‑‑‑Application for execution of ejectment order was filed on 5‑1‑1998 by the landlord before Executing Court in terms of the ejectment order which was challenged by the tenant in Constitutional petition contending that period of two months granted to him was to expire on 5‑1‑1998 and issuance of writ of possession on that very date by Executing Court was unlawful and illegal‑‑‑High Court dismissed the Constitutional petition‑‑‑Validity‑‑‑Period of two months would mean sixty day and while counting sixty days' period from 4‑11‑1997, 3‑1‑1998 would be the last day for the petitioner to return the possession in terms of the ejectment order‑‑­Execution application could have been competently moved even on 4‑1‑1998‑‑‑Even otherwise there was no bar under the law to issue writ of possession soon after the expiry of time for handing over of possession to the landlord granted by a competent Court‑‑‑High Court having dismissed Constitutional petition had given cogent and valid reasons to which no exception could be taken.

Habibul Wahab‑ul‑Khairi, Advocate Supreme Court for Petitioner.

M. Bilal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd January, 2001.

2001 S C M R 1792

[Supreme Court of Pakistan]

Present: Sh. Ria2 Ahmad, Munir A. Sheikh and Syed Deedar Hussain Shah, JJ

Messrs BOLAN ENTERPRISES and another‑--‑Appellants

versus

MUSHTAQUE ALI KUMBHO and others‑‑‑Respondents

Civil Appeals Nos.717 and 1841 of 1998, decided on 26th April, 2001.

(On appeal from the judgment dated 17‑4‑1998, of the High Court of $indh, Karachi, passed in Constitutional Petition No. D‑1778 of 1997).

(a) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑Ss. 45 & 54(1)‑‑‑Sindh Local Government Octroi Rules, 1964, 8.225‑‑­Constitution of Pakistan (1973), Arts. 185 & 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court issuing writ ordering certain area to be included in the limits of Municipal Corporation‑‑‑Validity‑‑‑High Court was not competent to pass such administrative order, which was only the prerogative of concerned Provincial Government under relevant law and the Constitution.

(b) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑Ss. 45 & 54(1)‑‑‑Sindh Local Government Octroi Rules, 1964, 8.225‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Contractual obligation‑‑‑Interference by High Court under Art.199 of the Constitution‑‑‑Scope‑‑‑Valid contract was signed between the appellants and the Authorities which was assailed in the Constitutional petition before High Court and the same was allowed‑‑‑Validity‑‑‑No allegation of breach of contract was levelled and Government functionaries had awarded the contract to the appellants under the provisions of Sindh Local Government Ordinance, 1979, and the Rules, with the approval of Provincial Government‑‑‑Judgment by the High Court was set aside in circumstances.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar PLD 1965 SC 725; Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC 811; Khalil Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Suleman

Mala v. Karachi Building Control Authority 1990 CLC 448; Darshan Masih v. The State PLD 1990 SC 513 and Javaid Iqbal Abbasi & Co. v. Province of Punjab 1996 SCMR 1433 distinguished.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Muhammad Afzal Siddiqui, Advocate Supreme Court, and Muhammad Ashraf Khan Tanoli, Advocate‑on‑Record for Appellants (in C.A. No. 717 of 1998).

Respondent No. l in person (absent) (in C.A. No. 717 of 1998).

Respondents Nos.2, 3, 7, 8, 10, 14 and 15: Ex parte (in C.A. No. 717 of 1998).

Abrar Hussan, Advocate Supreme Court for Respondents Nos.4, 6 and 9 (in C.A. No. 717 of 1998).

Suleman Habibullah, Additional Advocate‑General for the Government of Sindh (in C.A. No. 717 of 1998).

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 11 (in C. As. Nos. 717 and 1841 of 1998).

Suleman Habibullah, Additional Advocate‑General, Sindh and Akhlaq A. Siddiqui, Advocate‑on‑Record (absent) for Appellant (in C.A. No. 1841 of 1998).

Dates of hearing: 17th and 18th April, 2001.

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2001 S C M R 1806

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

Messrs MEHRAJ FLOUR MILLS and others‑‑‑Appellants

versus

PROVINCIAL GOVERNMENT and others‑‑‑Respondents

Civil Appeals Nos. 545, 544 and 546 of 1998, decided on 18th April, 2001.

(On appeal from the judgment dated 2‑2‑1997, passed by the Lahore High Court, Lahore in Writ Petitions Nos.2370/90, 12231/91 and 2694/1990).

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S. 55‑‑‑Punjab Land Acquisition Rules, 1983, Rr.7 & 8‑‑‑Leave to appeal was granted by Supreme Court to consider, whether Rr.7 & 8 of Punjab Land Acquisition Rules, 1983 were ultra vires of S.55 of Land Acquisition Act, 1894; and if Rr.7 & 8 of Punjab Land Acquisition Rules, 1983 were inconsistent with the provisions contained in S.55 of Land Acquisition Act, 1894, then what was the legal effect of the inconsistency.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Consistency of Rule with present Act‑‑‑Scope‑‑‑Test‑‑‑Rule should always be consistent with the Act and no Rule shall militate or render the provisions of the Act ineffective‑‑‑Test of consistency is whether the provisions of the Act and that of the Rules can stand together‑‑‑Main object of the rule is to implement the provisions of the Act and in case of conflict between the two the Rule must give way to the provisions of the Act‑‑‑Rules, in any case, shall not be repugnant to the enactment under which they are made.

Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCMR 747 ref.

(c) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 5 & 55‑‑‑Punjab Land Acquisition Rules, 1983, Rr.7 & 8‑‑­Expression 'at any time as appearing in S.5, Land Acquisition Act, 1894‑‑­Scope‑‑‑Vires of Rr.7 & 8 of Punjab Land Acquisition Rules, 1983‑‑‑No time has been fixed in‑between preliminary notification under S.4 of Land Acquisition Act, 1894, and second notification under S.S of the Act, therefore, the expression "at any time" assumes pivotal role for interpretation of S.5 of Land Acquisition Act, 1894, which leaves the limitation period to be determined in each case on its own merits ‑‑‑Expression 'at any time' though cannot be interpreted to mean a year or otherwise but certainly can be interpreted to mean within reasonable time, which of course would be determined in each case looking at its own circumstances‑‑‑Government under the provision's of S.55 of Land Acquisition Act, 1894 has powers to make rules, which have to be consistent with the provisions of the Land Acquisition Act, 1894‑‑‑Provisions of Rr.7 & 8 of Punjab Land Acquisition Rules, 1983, ex facie, militate against the provisions of S.5 of Land Acquisition Act, 1894‑‑‑Where the Rules were inconsistent with the provisions of Land Acquisition Act, 1894, the same were rightly declared by High Court as ultra vires of Land Acquisition Act, 1894, leaving the competent Legislature to make equitable amendments therein.

Government of Pakistan, Secretaries, Works, Communications and Physical Planning v. Tauqir Ahmed Khan and others 1996 SCMR 968 ref.

Dr. A. Basit, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants (in C.A. No. 545 of 1998).

Sh. Khalil‑ur‑Rehman, Advocate Supreme Court and S. Abul Aasim Jafari, Advocate‑on‑Record for Appellants (in C.A. No. 546 of 1998).

Maqbool Sadiq, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondents.

Date of hearing: 24th January, 2001.

2001 S C M R 1813

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

YUSUF. ALI SHAH‑‑‑Appellant

versus

QUETTA SERENA HOTEL through General Manager and 2 others‑‑‑Respondents

Civil Appeal No.703 of 1997, decided on 30th April, 2001.

(On appeal from judgment dated 3‑9‑1996 passed by the High Court of Balochistan, Quetta in C. P. No. 194 of 1996).

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑

‑‑‑‑S. 2(i) & S.O.12(3)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑'Workman', determination of‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Termination from service‑‑‑Contention of the employee was that he was posted as Assistant Manager at the time of his being proceeded against by the employer, he was doing the clerical and manual work and was thus a 'workman' as defined in S. 2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Employee further contended that no opportunity was provided to him by the Trial Court, to lead evidence to show that he was doing manual and clerical work although he was posted as Assistant Manager‑‑‑Plea raised by the employee was that, he was covered by the definition of "workman" and was entitled to move his grievance application under S.25‑A of Industrial Relations Ordinance, 1969, by virtue of S.0.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Leave to appeal was granted to consider the points contended by the employee.

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

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Grievance petition‑‑‑Raising of new plea at the time of appeal‑‑‑Status of employee, determination of‑‑‑Management of the employer neither treated the employee as a workman/worker nor such treatment was meted out to any other employee similarly placed as the employee‑‑‑Labour Court as well as the Labour Appellate Tribunal dismissed the grievance petition and appeal respectively‑‑‑Concurrent judgments of the Courts below were assailed before High Court in Constitutional petition and the same was also dismissed‑‑‑Contention of the employee was that he did not make any‑statement before the Labour Court regarding non‑production of any evidence‑‑‑Validity‑‑‑High Court was right in observing that the point which had not been raised before the forum seized of the lis in the hierarchy of Industrial Relations Ordinance, 1969, could not be allowed to be argued for the first time during Constitutional proceedings‑‑‑Nothing was amiss in the judgments rendered by the Labour Court and the Labour Appellate Tribunal respectively to justify the High Court to interfere with the same in the exercise of its Constitutional jurisdiction under Art.199 of the Constitution.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672; Lever Brothers Pakistan Limited, Karachi v. Mrs. Kishwar Sultana Khan 1994 PLC 610 and Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227 ref.

Muhammad Riaz Ahmed, Advocate‑on‑Record for Appellant.

Respondents: Ex parte.

Date of hearing: 30th April, 2001.

2001 S C M R 1822

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

ALI MUHAMMAD through Legal Heirs and others‑‑‑Appellants

versus

CHIEF SETTLEMENT COMMISSIONER and others‑‑‑Respondents

Civil Appeals Nos. 170 to 185 and 1561 to 1566 of 1999, decided on 25th May, 2001.

(On appeal from judgments/orders of Lahore High Court, Lahore dated 29‑2‑1996 passed in Writ Petitions Nos. 16/R of 1993, 125/R of 1983, 15/R of 1993, 54/R of 1993, 55/R of 1993, 56/R of 1993, 96/R of 1993, 97/R of 1993, 180/R of 1993, 72/R of 1995, 57‑R of 1993, 56/R of 1993, 54/R of 1993, 55/R of 1993, 72 of 1995 and 72/R of 1995 respectively).

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Allotment by Chief Settlement Commissioner in the year 1992 when no proceedings were pending in terms of S.2, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider the questions as to whether respondents were entitled to maintain the writ petitions after dismissal of four earlier such petitions, filed by them seeking the same relief; whether the allotment made by the Chief Settlement Commissioner in the year 1992 was valid and legal when no proceedings were pending in terms of S.2 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975; whether in view of the notification of exchange as a result of which the land stood excluded from the compensation pool, any allotment could be made; whether High Court itself could make order of allotment in exercise of its Constitutional jurisdiction; whether impugned orders/judgments could be sustained or liable to be set aside as the same were contradictory for the reasons that same land stood allotted to more than one set of allottees‑and what as the effect of the judgment passed in revision by the High Court on the judgments impugned in the present petition for leave to appeal before the Supreme Court.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S.13‑‑­Land in question situated in urban area having gone out of compensation pool was not available for transfer against unadjusted produce index units of claimants. as these lands exclusively vested in the Provincial Government who had obtained the same in lieu of its land given in exchange of evacuee agricultural land‑‑‑Notified Authority and the Chief Settlement Commissioner even otherwise had no jurisdiction to transfer the land in urban area to claimants against their unsatisfied produce index units for the reason that vide Notification No.1697‑73/1567‑R(L), dated 16‑5‑1973 issued by the Chief Settlement and Rehabilitation Commissioner, Punjab had declared the evacuee properties as "building sites" for disposal under S.13, Displaced Persons (Land Settlement) Act, 1958.

Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation) Punjab, Lahore and 4 others PLD 1979 SC 846; Muhammad Ramzan v. Member (Rev.)/CSS and others 1997 SCMR 1635; Muhammad Yaqub and 13 others v. Municipal Committee, Lyallpur PLD 1971 Lah. 664; Province of Punjab through Collector, Faisalabad v. Ghulam Muhammad Civil Appeal No.257 of 1988; Fazal Mehmood and others v. Province of Punjab through Collector, Faisalabad and others C.Ps. Nos.807 and 808 of 1990; Additional Deputy Commissioner (G) v. Fazal Mehmood Khan and others Civil Appeals Nos.143 and 1433 of 1992; Bashir Ahmed and others v. Punjab University Academic Staff Association and others 1991 SCMR 377 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

(c) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-‑‑

‑‑‑‑S.2‑‑‑Pending cases ‑‑‑Unutilized produce index units in favour of constitute a pending case under S.2(2) of the Act.

Muhammad Ramzan v. Member (Rev.)/CSS and others 1997 SCMR 1635 rel.

(d) Evacue Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

‑‑‑‑S.2‑‑‑Jurisdiction of Notified Officer to grant relief to a claimant‑‑‑Scope and extent.

(e) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

‑‑‑‑S.2‑‑‑Review of an earlier order was not possible notwithstanding the fact that two different persons had been authorized to discharge the functions of Notified Authority under S.2(2) of the Act.

Mazaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Muhammad Ramzan v. Member (Rev.)/CSS and others 1997 SCMR 1635 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

(f) Evacue Property and Displace Persons Laws (Repeal) Act (XIV of 1975)---

‑‑‑‑S.2(2)‑‑‑Pending cases‑‑‑Case in writ petitions which were disposed of by the High Court by making directions to the Settlement Authorities to satisfy the claims of the claimants could ‑not be deemed to be pending for the purposes of S.2(2) of the Act‑‑‑Principles.

Muhammad Ramzan v. Member (Rev.)/CSS and others 1997 SCMR 1635 and Province of Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

(g) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XIII, R.3‑‑‑Memo. of petition‑‑‑Essentials‑‑‑Requirements of O.XIII, R.3, Supreme Court Rules, 1980.

It is the requirement of Order XIII, Rule 3 of Pakistan Supreme Court Rules, 1980 that alongwith memo. of petition Advocate‑on‑Record will file paper book of the High Court, if any, and other record duly attested by him because in absence of documents on which reliance is placed it becomes very difficult to decide the case justly and on account of the negligence of concerned A.O.R. Court feels lot of difficulty in arriving at a just decision and in such situation possibility of causing injustice to any of the parties before the Court cannot be overruled. Similarly after grant of leave the appellants as well as respondents are required to file additional documents relevant for disposal of the case.

(h) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2(2)‑‑‑All evacuee agricultural (urban) property situated .in the Province of Punjab having been declared "building sites" on 16‑5‑1973 and relevant notification to that effect having been held valid for all intents and purposes by the Supreme Court, claimants could not claim relief against the evacuee agricultural land, which was temporarily allotted to them or alternative land which had been granted in their favour by Notified Authority/Chief Settlement Commissioner.

(i) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2(2)‑‑‑Pending case‑‑‑Claimants who had not succeeded in getting evacuee agricultural land confirmed/satisfied in their favour in terms of Ss. 10 & 11 of .the Displaced Persons (Land Settlement) Act, 1958 till 1st July, 1974 when evacuee laws/regulations were repealed, their cases could not be deemed to be pending for the reason that Produce Index Units possessed by them had not been adjusted‑‑‑Such claimants, however, against their unutilized Produce Index Units could invoke some other remedy if available under the law i.e. by claiming compensation from the Government.

Muhammad Ramzan v. Member (Rev.)/CSS and others 1997 SCMR 1635 ref.

(j) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑