SCMR 2002 Judgments

2002 S C M R 1

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ.

PROVINCE OF PUNJAB through Chief Engineer, Irrigation and others---Petitioners

Versus

AZHAR ABBAS and others---Respondents

Civil Appeals Nos. 1433 to 1516 of 2001, decided on 16th October, 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, 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 (VIII of 1974)---

----Ss. 2(1)(a), 5(1) & 10(1), (2)&(3)---Constitution of Pakistan (1973), Art.212(3)---Adhoc 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 was 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---Held, in order to secure continuity of the official functions and in the public interest, having regard to the peculiar facts and circumstances of the case and without treating the finding of the Supreme Court in the case as precedent, all the ad hoc employees shall continue to perform their functions on the existing terms and conditions for a period of six months from the date of decision of the Supreme Court or till arrival of the regular employees, who shall be recruited strictly on merits after following the prescribed procedure laid down in the relevant Rules and in accordance with law, whichever was earlier---Supreme Court, further clarified that no extension in service on any ground whatsoever shall be granted to the ad hoc employees and they shall stand automatically relieved of their posts on or before the aforesaid eventuality taking place, unless, subject to eligibility of ad hoc employees, they are recruited afresh on merit by the Competent Authority after following the prescribed procedure in that behalf.

Federation of Pakistan v. Rais Khan 1993 SCMR 609; Abdul Majid 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 0Sadullah 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 Secretary1985 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 and In re: Abdul Jabbar Memon and others 199,6 SCMR 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.

Tariq Mahmood Khokhar, Additional Advocate-General, Punjab alongwith Fauzi Zafar, Assistant Advocate-General, Punjab and Rao M. Yusuf Khan, Advocate-on-Record for Appellants (in ail Civil Appeals).

Hafiz S. A. Rehman, Senior Advocate Supreme Court and M. S. Khatak, Advocate-on-Record for Respondents (in Civil Appeals Nos.1435, 1437, 1440, 1445, 1455, 1463 and 1494 of 2001).

Irshad Ahmad Qureshi, Advocate Supreme Court for Respondents (in Civil Appeals Nos. 1438, 1450 and 1451 of 2001).

Muhammad Iqbal Ch., Advocate Supreme Court for Respondents (in Civil Appeal No. 1477 of 2001).

Khadim H. Qaiser, Advocate Supreme Court for Respondents (in Civil Appeals Nos. 1442, 1457, 1458, 1459, 1483 and 1510 of 2001).

Qamar Riaz H. Basra, Advocate Supreme Court for Respondents (in Civil Appeals Nos. 1479, 1495 to 1498 of 2001).

M. Ibrahim Satti, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in Civil Appeal No. 1488 of 2001).

Ch. Mushtaq Masood, Advocate Supreme Court for Respondent (in Civil Appeal No. 1503 of 2001).

M. Jaffar Hashmi, Advocate Supreme Court for Respondents (in Civil Appeal No.1492 of 2001).

Ch. M. Akram, Advocate-on-Record for Respondents (in Civil Appeals Nos. 1439, 1453, 1454, 1466 to 1468, 1476, 1506 to 1508 and 1512 to 1515 of 2001).

Date of hearing: 16th October, 2001. .

2002 S C M R 17

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Rana Bhagwan Das, JJ

S.M. BUILDERS through Managing Director/Partner and 2 others‑‑‑Petitioners

Versus

Mrs. AMINA SATTAR and 2 others‑‑‑Respondents

Civil Petition No.2026 of 2000 and Civil Miscellaneous Application No. 1 of 2001, decided on 9th January, 2001.

(On appeal from the order, dated 27‑10‑2000 of the High Court of Sindh, passed in H. C. A. No. 184 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the admission of an appeal on the ground that it raised important questions of law but denial of interim relief was a contradiction in terms giving rise to an error apparent on the face of the record; whether the order of Division Bench of the High Court while admitting the appeal and declining interim relief to the appellants was sustainable in law as Judges failed to appreciate that the order had negated the concept of equality before law, that in absence of any distinguishing features there was no good reason to impose conditions on the appellants in civil suit while in a connected suit, the builders of another property in toe same locality were not made subject to any such conditions; whether the Judges of the Division Bench could decline without giving any reasons to substantiate that in identical circumstances in another suit, wherein the respondents were plaintiffs, the injunction application was dismissed without imposing any condition at all and the order of the Division Bench insofar as it interfered‑ with the order of the Single Judge was suspended by Supreme Court; whether the Single Judge of High Court concluded that the plaintiffs had no pirma facie case, the balance of convenience was not in their favour and that the denial of an injunction would not cause them irreparable loss and injury and that the injunction application was, therefore, liable to be dismissed‑‑‑Having so concluded whether the Single Judge could then have imposed conditions which amounted to granting the very ‑same injunction which he had ruled that the plaintiffs were not entitled to; whether the Judge could in two cases based on identical grounds, instituted by the same plaintiffs, against two builders raising construction in the same area, had passed two orders which were at variance with one another without assigning any reason and whether such orders discriminated against the appellants; and whether conditions imposed by Supreme Court in its order which had suspended the stay granted by the Division Bench of the High Court against the order of the; Single Judge in civil suit and whether the Single Judge and Division Bench could ignore the order of Supreme Court which was binding on them.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Makhdoom Ali Khan, Advocate Supreme Court, Abdul Qadir Khan, Advocate instructed by A. Aziz Khan, Advocate‑on‑Record for Petitioners.

Naimur Rehman, Senior Advocate Supreme Court instructed by M.S. Khattak, Advocate‑on‑Record for Respondents Nos. l to 3.

Date of hearing: 9th January, 2001.

2002 S C M R 20

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and Syed Deedar Hussain Shah, JJ

GHALIB HUSSAIN and others‑‑‑Appellants

Versus

MUHAMMAD ARIF and others‑‑‑Respondents

Criminal Appeals Nos. 108 and 109 of 2000, decided on 1st June, 2001.

(On appeal from the judgment, dated 14‑7‑1997, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in, Criminal Revision No.101 of 1993, Criminal Appeals Nos.149, 150 of 1993 and Murder Reference No.218 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court, to reappraise evidence as a whole and also to consider the quantum of sentence awarded to the accused persons.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149‑‑‑Reappraisal of evidence‑‑‑Two versions‑‑‑Incident was of daytime and there was no question of mistaken identity of accused persons‑‑­One version was put forth by complainant and eye‑witnesses and the same was supported by circumstances and injuries caused to deceased, while the other versions was adduced by .the police‑‑‑Trial Court rejected the version put forth by the police‑‑‑Validity‑‑‑Where the testimony of eye‑witnesses was confidence‑inspiring, natural and trustworthy, the same was rightly believed by Trial Court as well as the High Court‑‑‑Trial Court had the advantage of observing veracity of witnesses and when the version put forth by the complainant was confidence‑inspiring, the Trial Court had rightly rejected the second version adduced by the police‑‑‑Conviction and sentence of death awarded to the accused person by Trial Court and maintained by High Court was not interfered with.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149‑‑‑Murder trial‑‑‑Motive‑‑‑Validity‑‑‑Motive by itself neither proves nor disproves any assertion conclusively.

Moazam Shah v. Mohsan Shah PLD 2001 SC 458; Nawaz Ali v. The State 2001 SCMR 726 and Talib Hussain and others v. The State 1995 SCMR 1776 ref.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Ch. Talib Hussain, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 108 of 2000).

Muhammad Salim Khan, Bar‑at‑Law, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents Nos. l to 5.

Muhammad Zaman Bhatti for the State (in both Appeals).

Aftab Farrukh, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellants (in Criminal Appeal No. 109 of 2000).

Date‑of hearing: 1st June, 2001.

2002 S C M R 31

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Tanvir Ahmad Khan, JJ

ANWAR‑UL‑HAQ‑‑‑Petitioner

Versus

S.H.O., POLICE STATION NISHATABAD, FAISALABAD and another‑‑‑Respondents

Civil Petition No.425‑L of 1999, decided on 22nd December, 2000.

(On appeal from the judgment of Lahore High Court, Lahore, dated 22‑2‑1999 passed in I.C.A. 916 of 1998).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Findings of fact‑‑‑Judgment and decree passed by Court of competent jurisdiction‑‑‑Failure to file appeal against the judgment and decree‑‑‑Petitioner was found to be a guarantor, by the Court of competent jurisdiction‑‑‑Instead of assailing the findings of the judgment and decree in appeal, the petitioners chose to lodge an F.I.R. against the loanee and the Bank Manager alleged that both of them had prepared a fictitious guarantee deed and petitioner had never signed the same‑-‑Validity‑‑‑Where the findings had attained finality, the same could not be undone by way of criminal proceedings, without filing of appeal‑‑‑Leave to appeal was refused.

M. Aslam Riaz, Advocate Supreme Court and Mahmood‑ul‑Islam, Advocate‑on‑Record for Petitioner.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd December, 2000.

2002 S C M R 32

[Supreme Court of Pakistan]

Present: Abdur Rahman Khan, Nazim Hussain Siddiqui and Syed Deedar Hussain Shah, JJ

TARIQ MEHMOOD and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.201 of 2001, decided on 28th May, 2001.

(On appeal from the judgment, dated 28‑3‑2001, of the Lahore High Court, Lahore, passed in Criminal Appeal No.43 of 1994).

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

‑‑‑‑S.5(2)‑‑‑Penal Code (XLV of 1860), Ss. 161 & 163‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to accused to consider whether the evidence on record was sufficient to hold the accused guilty.

(b) Precedent‑

‑‑‑‑ Criminal case‑‑‑Precedent of a criminal case is not universally applicable‑‑‑Rule laid down in a certain criminal case cannot be applied universally as every case proceeds on its own facts and circumstances which would hardly resemble with the diverse facts of the precedent case in which the dictum was laid down‑‑‑Some foundation must also be laid down in the case for the application of the dictum in the earlier decided case.

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

‑‑‑‑S.5(2)‑‑‑Penal Code (XLV of 1860), Ss. 161 & 163‑‑‑Appraisal of evidence‑‑‑None of the Government officials of the raiding party was motivated by ulterior motive or some ill‑feelings to involve the accused falsely in such a serious case‑‑‑Since every effort is made to conceal such a shameful and contemptible transaction from public notice, the fact of the conversation between the complainant and the accused being not heard would not nullify the entire proceedings resulting in raid and the evidence recorded in Court about the raid‑‑‑Prosecution had proved the passing of the amount and the accused had failed to rebut the presumption against him under S. 4 of the Prevention of Corruption Act, 1947 and the Court from overall background of the case had also found the accused guilty‑‑‑Mere non‑hearing of the conversation by the raiding party at the time of giving and accepting the tainted currency would not, in circumstances, adversely affect the prosecution case‑‑‑Statement of the complainant who had not supported the prosecution case and had been declared hostile would also not render the other evidence in the case ineffective which could legally be made basis for conviction‑‑‑Appeal of accused was dismissed accordingly.

Bashir Ahmed v. The State 2001 SCMR 634 and Muhammad Ashraf v. The State 1996 SCMR 181 distinguished.

Mehdi v. The State 2000 SCMR 222 ref.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellants.

Dil Muhammad Tarar, Advocate Supreme Court for A.‑G., Punjab for the State.

Date of hearing: 28th May, 2001.

2002 S C M R 37

[Supreme Court of Pakistan]

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

NAZIRAN BEGUM and 2 others‑‑‑Petitioners

Versus

SALEH MUHAMMAD and others‑‑‑Respondents

Civil Petition No. 1907 of 2000, decided on 12th July, 2001.

(On appeal from the judgment dated 19‑9‑2000 of the Lahore High Court passed in Civil Revision No.2197 of 1985).

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Condonation of delay‑‑‑Petition delayed by one day‑‑‑Notice not issued by copying agency for obtaining certified copy‑‑‑Effect‑‑‑Where the delay was of one day, Supreme Court in the interest of justice in order to decide the case on merits, condoned the delay.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.4 & 21‑‑‑Constitution of Pakistan (1973), Art 185(3)‑‑‑Superior right of pre‑emption ‑‑‑Plea of being a collateral‑‑‑Pedigree‑table‑‑‑Concurrent findings of the Courts below ‑‑‑Vendees failed to prove that they were related to vendor in nearer degree than the pre‑emptors ‑‑‑Pre‑emptors and father of the vendor, according to the pedigree‑table were related to each other through common ancestor‑‑‑Effect‑‑‑Findings of the Court below were correct as mention of the fathers of the pre‑emptors had been specifically made in the pedigree‑table‑‑‑Findings of facts recorded by all the Courts below against the vendees did not suffer from any legal infirmity‑‑‑Leave to appeal was refused.

Sardar Asmatullah Khan, Advocate Supreme Court for Petitioners.

Zahid Hussain Khan, Advocate Supreme Court for Respondents.

Date of hearing: 12th July, 2001.

2002 S C M R 39

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Qazi Muhammad Farooq and Javed Iqbal, JJ

COMMISSIONER, SINDH EMPLOYEES SOCIAL SECURITIES INSTITUTION and another‑‑‑Appellants

Versus

Messrs E.M. OIL MILLS AND INDUSTRIES LTD., S.I.T.E., KARACHI and 2 others‑‑‑Respondents

Civil Appeals Nos.879, 880 and 882 of 2000 and 346 to 357 of 2001, decided on 27th July, 2001.

(On appeal from the judgments, dated 28‑9‑1999 and 11‑12‑2000 of the High Court of Sindh, Karachi passed in Miscellaneous Appeals Nos.5, 14 and 45 of 1996 (in the first judgment) and 3 of 1999, 4 of 1999, 5 of 1995, 6 of 1995, 12 of 1995, 13 of 1997, 18 of 1997, 27 of. 1997, 48 of 1996, 49 of 1996 and 29 of 1995 (in the second judgment).

(a) Provincial Employees! Social Security Ordinance (V of 1965)‑‑‑

‑‑‑‑S.2(8)(f)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to examine the scope of S.2(8)(t) of Provincial Employees' Social Security Ordinance, 1965, with reference to the object of the Ordinance and whether the dictum laid down by Supreme Court in case titled Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. reported as PLD 1988 SC 1 was attracted to the circumstances of the case.

Sindh Employees Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1988 SC 1 ref.

(b) Provincial Employees Social Security Ordinance (V of 1965)‑‑

‑‑‑‑Ss.2(8)(a), 2(8)(f) & .20(4)(a)‑‑‑Term 'employee'‑‑‑Scope‑‑‑Payment of contribution‑‑‑Principles‑‑‑Definition of term 'employee' as mentioned in S.2(8) of Provincial Employees' Social Security Ordinance, 1965, refers to initial appointment at wages exceeding the ceiling mentioned in the definition of the term, as well as the employees whose wages exceed the ceiling during the course of employment‑‑‑While applying formula for payment of the contribution envisaged by S.20(4)(a), Provincial Employees' Social Security Ordinance, 1965, the ceiling is to be kept in view‑‑‑Provisions of S.2(8)(f) & S.2(8)(a) of Provincial Employees' Social Security Ordinance, 1965, are to be interpreted harmoniously.

(c) Provincial Employees' Social Security Ordinance (V of 1965)‑‑‑

‑‑‑‑Ss.2(8)(t) & 20(4)(a)‑‑‑Collection of contribution‑‑‑Amendment made in the provisions of Ss.2(8)(f) & 20(4)(a) of Provincial Employees' Social Security Ordinance, 1965---‑‑Nature and effect‑‑‑Construction‑‑--Mode‑‑‑Scope of the unamended Ss.2(8)(f) & 20(4)(a) of Provincial Employees' Social Security Ordinance, 1965, is comparatively limited and cannot be enlarged by giving retrospective effect to the amendments made therein on the grounds that the same are remedial in nature‑‑‑Proviso added to S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965, being a part of definition section is declaratory and the Ordinance being a beneficial statute its provisions must be construed liberally.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Retrospective effect of a statute‑‑‑Every statute, as a general rule, is deemed‑ to be prospective unless by express provision or necessary implication it is given retrospective effect‑‑‑Acid test for ascertaining whether a statute or an amendment operates prospectively or retrospectively is the legislative intent.

(e) Interpretation of statutes‑‑‑

‑‑‑‑Declaratory statute‑‑‑Purpose‑‑‑Such statute either resolves doubts on a particular point or restates the law on a particular subject ‑‑‑Declaratory provision does not purport to change the law.

Halsbury's Laws of England, Vo1.44, 4th Edn. ref.

(f) Provincial Employees' Social Security Ordinance (V of 1965)‑‑‑

‑‑‑‑Ss.2(8)(f) & 20(4)(a)‑‑‑Contribution of social‑security ‑‑‑Statutory increase in wages‑‑‑Failure to incorporate increase in Provincial Employees' Social Security Ordinance, 1965‑‑‑Dictum laid down by Supreme Court in case titled Dawood Cotton Mills, reported as PLD 1988 SC 1‑‑‑Applicability‑‑?Dispute between the parties related to collection of contribution whereby the institution intended to apply the amendment in the statute retrospectively‑‑?Validity ‑‑‑Amendments in question could not be termed as declaratory for the simple reason that they had created new obligations' and changed the existing law considerably‑‑‑Statutory increase in wages, was though not incorporated in Provincial Employees' Social Security Ordinance, 1965, yet the existing law did not suffer from any legal defect in view of the law laid down in case titled Dawood Cotton Mills reported as PLD 1988 SC 1‑‑?Amendments made in the law were not purely remedial and the same could not be held to be retroactive in operation even if the same were presumed to be remedial because they tend to affect vested rights‑‑‑Giving retrospective effect to the amendments would tantamount to nullifying the binding effect of the dictum laid down in case titled Dawood Cotton Mills reported as PLD 1988 SC 1, which squarely applied to the facts and circumstances of the cases.

Khalid Habibullah, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record (absent) for Appellants (in C.As. Nos.879, 880 and 882 of 2000 and for Respondent (in C.As. Nos.346 to 357 of 2001).

Abdul Karim Khan Kundi, Advocate Supreme Court, M.S. Khattak and Raja Abdul Ghafoor, Advocate‑on‑Records for Appellants (in C.As. Nos.346 to 357 of 2001).

Muneeb Ahmed, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record (absent) for Respondents (in C.As. Nos.879 and 880 of 2000).

Abdus Samad, Advocate Supreme Court and Ahmadullah Faruqi, Advocate‑on‑Record (absent) for Respondents (in C.A. No.882 of 2000).

Date of hearing: 20th June, 2001.

2002 S C M R 49

[Supreme Court of Pakistan]

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

NAZAR HUSSAIN SHAH and 2 others---Petitioners

Versus

Mst. KHURSHID BIBI and others---Respondents

Civil Petition for Leave to Appeal No.626-L of 1998, decided on 11th December, 2000.

(On appeal from the judgment, dated 19-2-1998 of the Lahore High Court, Lahore, passed in Civil Revision No.887-D of 1983).

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

----Ss. 4 & 21---Right of pre-emption ---Principle of waiver and estoppel--­Applicability---Presence of pre-emptor at the time of attestation of mutation---Effect---Mere presence of the pre-emptor at such time and even to act as witness in the bargain was not sufficient to prove the waiver of right of pre-emption, or could, not constitute estoppel.

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

----Ss.4 & 21---Civil Procedure Code (V of 1908), S. 115(c) --- Constitution of Pakistan (1973), Art. 185(3)---Right of pre-emption ---Waiver of---Presence of pre-emptor at the time of attestation of mutation---Contention of the vendee was that the pre-emptor who was a Lambardar was present at the time of attestation of mutation, therefore, he was estopped by his conduct to file the suit---Trial Court did not accept the contention and decreed the suit in favour of the pre-emptor, whereas the Lower Appellate Court allowed the appeal and set aside the judgment and decree passed by the Trial Court--­High Court in exercise of its revisional jurisdiction, had restored the judgment and decree passed by Trial Court---Validity---Mere presence of the pre-emptor at the time of settlement of bargain or his being a marginal witness of the sale, would not be sufficient to stop him from filing the suit for pre-emption ---Where the alleged offer made to the pre-emptor to purchase the land was contradictory in material terms, the same was not accepted---Judgment passed by High Court in exercise of revisional jurisdiction fell within the ambit of S.115(c), C.P.C.---Leave to appeal was refused.

S.M. Tayyab, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th December, 2000.

2002 SCMR 53

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and Syed Deedar Hussain Shah, JJ

WALLAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 150 of 1999, decided on 31st May, 2001.

(On appeal from the judgment/order, dated 25-9-1997, of the Lahore High Court, Lahore, passed in Criminal Appeal No.590 of 1994 and Murder Reference No.252 of 1994).

(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-appraise the evidence on the record as to whether the conviction recorded against and the sentence of death awarded to the accused person under S.302, P.P.C., was in accordance with the principles enunciated by Supreme Court for safe administration of criminal justice.

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

----S. 302---Re-appraisal of evidence---Sifting chaff from grain, principle of---Sentence---Daylight occurrence---Specific role of effective firing attributed to the accused ---F.I.R. was promptly lodged---Evidence of prosecution witnesses was natural, trustworthy and nothing had been brought out in cross-examination to disbelieve their veracity---Identification of accused was not mistaken---Contention of the accused was that as eight co­accused persons were acquitted on the basis of the same evidence, therefore, the case of prosecution was doubtful-- Validity---Courts were bound to sift the chaff from grain and keeping in view the principle, the Courts below had rightly acquitted the co-accused persons because sufficient material was not available against them but natural, reliable and trustworthy evidence was furnished by the prosecution against the accused and the same had been rightly believed by the Courts below---Where the accused had committed brutal murder with fire-arm, the penalty of death under S.302, P.P.C. was properly awarded by the Court.

Moazam Shah v. Mohsan Shah PLD 2001 SC 458 ref.

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

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 31st May, 2001.

2002 SCMR 57

[Supreme Court of Pakistan]

Present: Abdur Rahman Khan and

Nazim Hussain Siddiqui, JJ

RASHID MEHMOOD---Appellant

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE

and 2 others---Respondents

Civil Appeal No. 95 of 1999, decided on 5th July, 2001.

(On appeal from the judgment dated 7-10-1998 of the Punjab Service Tribunal, passed in Appeal No. 694 of 1994).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider the effect of dismissal of the civil servant from service after he was acquitted of criminal charge.

Malik Azharul Haq v. Director of Food, Punjab, Lahore 1991 SCMR 209 ref.

(b) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.2(1), 3 & 6---Dismissal from service---Acquittal from criminal charge--­Civil servant was acquitted by the Trial Court---Departmental Authority dismissed the civil servant from service only on the charge of being involved in criminal case---Service Tribunal maintained the decision of the Departmental Authority and appeal was dismissed---Validity---Regular inquiry, having not been conducted by the Departmental .Authority, petitioner could plead that having been exonerated by the Criminal Court, the Departmental Authority was not competent to discharge/remove him from service---Where the Departmental Authority failed to conduct any regular inquiry against the civil servant, it had, therefore, no basis to hold the civil servant guilty of misconduct---Judgment passed by the Service Tribunal was set aside and Supreme Court directed the Authorities to reinstate the civil servant it: service with back benefits for the period he had not been gainfully employed elsewhere---Appeal was allowed.

Malik Azharul Haq v. Director of Food, Punjab, Lahore 1991 SCMR 209; Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993; Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore 1985 SCMR 1483; Muhammad Iqbal Zaman, Verpacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others 2000 PLC (C.S.) 331; Province of the Punjab v. Abdul Aziz Qureshi 1994 SCMR 247; Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 and Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337 rut.

Hafiz Tariq Nasim, Advocate Supreme Court and M. Aslam Chaudhry, Advocate-on-Record (absent) for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record for Respondents.

Date of hearing: 19th April, 2001.

2002 SCMR 63

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, Qazi Muhammad Farooq and

Javed Iqbal, JJ

SAFDAR ALI ‑‑‑Petitioner

Versus

ZAFAR IQBAL and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No. 117 of 2001, decided on 18th June, 2001.

(On appeal from the order dated 11‑5‑2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Cr. Misc. No.622‑M/2001 in CrI. Rev. No. 137 of 2000).

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

‑‑‑‑S.190‑‑‑Cognizance of offence by Magistrate‑‑‑Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents.

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

‑‑‑‑Ss. 190 & 173‑‑‑Summoning of accused placed in Column No.2 of the challan‑‑‑Trial Court can summon the accused placed in Column No.2 of the challan to face the trial and there is no legal bar whatsoever that at first instance evidence should be recorded to ascertain as to whether prima facie case is made out against them.

Muhammad Sharif v. State 1997 SCMR 304; Waqarul Haq v. State 1988 SCMR 1428; Falak Sher v. State PLD 1967 SC 425; Sardar Ali and others v. The State P.S.L.A. No.66 of 1966; Muhammad Nawaz Khan v. Noor Muhammad and others PLD 1967 Lah. 176; Muhammad Akbar v. State 1972 SCMR 335; Saeed Muhammad Shah v. State 1993 SCMR 550; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; Khushbaklitur Rehman v. State 1985 SCMR 1314 and Mehar Khan v. Yaqub Khan 1981 SCMR 267 ref.

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

‑‑‑‑Ss. 190, 191 & 173‑‑‑Cognizance of offence by Magistrate‑‑‑Magistrate while taking cognizance under S.190(1)(b), Cr.P.C. on a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender‑‑‑Magistrate, therefore, can issue process against other persons who also appear to him to be concerned in the commission of the offence on the basis of the police report and other material placed before him and in doing so Magistrate does not act under cl. (c) of S.190(1), Cr.P.C. and 5.191, Cr.P.C. is not applicable.

Mehrab v. Emperor 26 Cr.LJ 181 and Lal Bihari Singh v: Emperor 31 Cr. LJ 55 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/ 147/ 148/ 149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Order passed by the Magistrate whereby he had rejected the application moved by the police for discharge of accused; was neither perverse nor capricious but on the other hand the same had been passed after having an in ­depth scrutiny of the, entire record and the same could not be termed as a non‑speaking order as found by the High Court in the impugned judgment and being unexceptionable the same hardly called for any interference‑‑­Petition for leave to appeal was converted into appeal in circumstances and while allowing the same the impugned order of the High Court was set aside being violative of the relevant provisions of law and the order passed by the Magistrate was restored with the direction to the Trial Court to proceed with the case in accordance with law.

Muhammad Sharif v. State 1997 SCMR 304; Waqarul Haq v State 1988 SCMR 1428; Falek Sher v. State PLD 1967 SC 425; Sardar Ali and others v. The State P.S.L.A. No.66 of 1966; Muhammad Nawaz Khan v. Noor Muhammad and others PLD 1967 Lah. 176; Muhammad Akbar v. State 1972 SCMR 335; Saeed Muhammad Shah v. State 1993 SCMR 550; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; Khushbakhtur Rehman v. State 1985 SCMR 1314; Mehar Khan v. Yaqub Khan 1981 SCMR 267; Mehrab v. Emperor 26 Cr.1.I 181 and Lal Bihari Singh v. Emperor 31 Cr.LI 55 ref.

Muhammad Ilyas Siddiqui, Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record (absent) for Petitioner.

Malik Rabnawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Date of hearing: 18th June, 2001.

2002 SCMR 71

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, CJ., Ch. Muhammad Arif and

Syed Deedar Hussain Shah, JJ

ABDUL SAMAD and others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Petitions Nos. 436 to 444, 457 to 472, 481 to 506, 512 to 532 and 541 to 556.of 2001, decided on 28th March, 2001.

‑(On appeal from the judgment dated 13‑10‑2000 of the Federal Service Tribunal, Islamabad in Appeals Nos.779(R), 786(R), 813(R), 823(R), 845(R), 850(R), 1123(R), 1133(R), 1186(R), 775(R), 782(R), 784(R), 785(R), 802(R), 810(R), 830(R), 832(R), 844(R), 843(R), 846(R), 852(R), 1126(R), 1132(R), 1152(R), 1161(R), 781(R), 841(R), 860(R), 1121(R), 1122(R), 1124(R), 1125(R), 1130(R), 1131(R), 1137(R), 1139(R), 1142(R), 1143(R), 1144(R), 1146(R), 1147(R), 1148(R), 1153(R), 1155(R), 1158(R), 1179(R), 1269(R), 1181(R), 1182(R), 1184(R), 1180(R), 1127(1 ), 1128(R), 1129(R), 1134(R), 1136(R), 1149(R), 1150(R), 1151(R), 1154(R), 1156(R), 1157(R), 1159(R), 1160(R); 1162(R)., 1163(R); 1164(R), 1166(R), 1170(R), 1173(R), 1175(R), 1183(R), 1135(R), 1138(R), 1140(R), 1141(R), 1167(R), 1168(R), 1169(R), 1171(R), 1172(R), 1179(R), 1176(R), 1177(R), 1178(R), 1185(R), 1187(R) and 1261 of 1999).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Two groups of persons similarly placed could not be treated differently‑‑‑Dictates of law, justice and equity required exercise of power by all concerned to advance the cause of justice and not to thwart it.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Petitions for leave to appeal‑‑‑Delay of 66 days, 67 days, 68 days and 70 days ‑‑‑Condonation‑‑­Supreme Court condoned the delay in view of the order that it proposed to pass in main petitions and for the reasons stated in the applications for condonation of delay and law declared in case reported as 1996 SCMR 645 and 1996 SCMR 1185.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Syed Imran Raza Zaidi. Superintending Engineer. .Public Health Engineering Circle‑I, Gujranwala v. Government of the, Punjab through Services, General Administration and Information Department, Punjab Secretariat. Lahore and 2 others 1996 SCMR 645 rel.

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

‑‑‑‑S. 4‑‑‑Sui Gas Transmission Company Limited Service Rules, 1982, Rr.6.1, 6.2 & 6.3‑‑‑Constitution of Pakistan (1973), Arts.25 & 212(3)‑‑­Appeal‑‑‑Termination of service of trainee engineers‑‑‑Appointment of petitioners was against training assignment on temporary basis without any commitment by Company to provide them employment at any stage‑‑‑Having worked as trainee engineers for 13 years, their assignments were terminated without issuing show‑cause notice‑‑‑Service Tribunal accepted appeals of petitioners and allowed them to continue working on training assignment‑‑­Validity‑‑‑After letting the period of probationary assignment to attain the proportion of 4/5 years, Company could ill‑afford to retrace its steps by putting an end to employment in an arbitrary manner‑‑‑While terminating petitioners' assignments, Company had lost sight of its orders, whereby it had made effective orders in respect of other employees similarly placed as the petitioners‑‑‑Petitioners were entitled, ex debito justitiae, to similar treatment as meted out to other employees‑‑‑Supreme Court converted petitions into appeals and allowed them by setting aside the judgment of Service Tribunal with direction to Company to absorb petitioners in their respective disciplines on same line as had been done in cases of Saleem Mustafa Sheikh and others PLD 2001 SC 176 and Engineer Naraindas and others (C. P. No. 1670 of 2000).

Tariq Anwar and others v. Federation of Pakistan and others Civil Appeals No. 117 of 1998; Managing Director, Sui Northern Gas Co. Ltd.v. Saleem Mustafa Sheikh and others PLD 2001 SC 176; 2001 PLC (C.S.) 60; Engr. Naraindas and others v. Sui Southern Gas Co. 2002 SCMR 82; 'Engr. Narain Das v. Secretary, Ministry ‑of Petroleum and Natural Resources, Islamabad and others Civil Appeals Nos. 2122 to 2354 of 1999; Secretary to Government, N.‑W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Saadullah Khan 1996 SCMR 413 ref.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Civil Servants Act (LXXI of 1973), S.2.‑‑‑Sui Gas Transmission Company Limited Service Rules, 1982, R.6.1‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Jurisdiction of Service Tribunal‑‑‑Appointment as trainee engineers on contract basis‑‑‑Termination of assignment‑‑­Employees worked as Trainee Engineers for 13 years, whereafter their training assignment was terminated by Company‑‑‑Service Tribunal accepted the appeals of employees‑‑‑Contention was that employees were neither civil servants nor permanent employees of Company, but were trainee employees; thus, their appeals before Service Tribunal were not competent as they did not fall into category of civil servants as defined in S.2‑A of Service Tribunals Act, 1973; and that Tribunal had no jurisdiction to entertain cases of employees on contract basis, to which R. 6.1 of Sui Gas Transmission Company Limited Service Rules, 1982 did not apply‑‑‑Validity‑‑‑Company raised such points neither in service appeals nor during arguments before Tribunal nor through separate application/concise statement in Supreme Court‑‑‑Grievance of employees before Company and Service tribunal related to failure of Company to regularize their employment in terms of judgment of Supreme Court in case titled Managing Director, Sui Northern Gas Co. Ltd. v. Saleem Mustafa Sheikh and others (PLD 2001 SC 176)‑‑­Service Tribunal had not committed any error in resolving the controversy to that extent through impugned judgment.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and Muzaffar Ali Khan, Advocate‑on‑Record for Respondents.

Barrister Ch. M. Jamil, Advocate Supreme Court and Muzaffar Ali Khan, Advocate‑on‑Record for Respondents (in C.Ps. Nos. 512 to 532 and 541 to 556 of 2001).

Date of hearing: 16th March, 2001.

2002 SCMR 82

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

ENGINEER NARAINDAS and another‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos. 1670 of 2000, 1671 of 2000, 1680 of 2000 to 1734 of 2000., 1736 of 2000 to 1774 of 2000, 1827 of 2000 to 1852 of 2000, 1854 of 2000 to 1859 of 2000, 1861 of 2000 to 1873 of 2000, 1878 of 2000, 1880 of 2000,. 401‑K of 2000 to 403‑K, 405‑K to 408‑K of 2000 and 416‑K of 2000, decided on 2nd February, 2001.

(On appeal from the judgments dated 23‑9‑2000, 11‑2‑2000 and 17‑4‑2000 of the Federal Service Tribunal passed in Appeals Nos.2122(R), 2192(R), 2181(R), 2173(R), 2184(R), 2183(R), 2182(R), 2135(R), 2165(R), 2167(R), 2169(R), 2168(R), 2170(R), 2172(R), 2174(R), 2196(R), 2197(R), 2123(R), 2175(R), 2171(R), 2176(R), 2177(R), 2179(R), 2180(R), 2185(R), 2186(R), 2187(R), 2191(R), 2188(R), 2189(R). 2193(R), 2194(R), 2195(R), 2124(R), 2126(R), 2132(R), 2133(R), 2134(R), 2190(R), 2136(R), 2137(R), 2138(R), 2139(R), 2140(R), 2127(R), 2129(R), 2147(R), 2148(R), 2149(R), 2151(R); 2154(R), 2155(R), 2156(R), 2159(R), 2160(R), 2161(R), 2162(R), 2199(R), 2258(R), 2253(R), 2198(R), 2200(R), 2201(R), 2202(R), 2203(R), 2204(R), 2205(R), 2206(R), 2207(R), 2208(R), 2209(R), 2210(R), 2211(R), 2212(R), 2213(R), 2214(R), 2215(R), 2217(R), 2218(R), 2219(R), 2220(R), 2221(R), 2252(R), 2254(R), 2255(R), 2256(R), 2257(R), 2259(R), 2260(R), 2261(R), 2262(R), 2263(R), 2264(R), 2265(R), 2266(R), 2250(R), 2227(R), 2232(R), 2224(R), 2225(R), 2226(R), 2228(R), 2229(R), 2230(R), 2254(R), 2234(R), 2235(R), 2236(R), 2216(R), 2238(R), 2239(R), 2241(R), 2242(R), 2243(R), 437(R), 2152(R), 2125(R), 2153(R), 2131(R), 2150(R), 2128(R), 2130(R), 2222(R), 2223(R), 2231(R), 2233(R), 2249(R), 2251(R) 2141(R), 2245(R), 2146(R), 2145(R), 2157(R), 2244(R), 2144(R), 2246(R), 2248(R), 2143(R), 2142(R), 2158(R), 2247(R), 2164(R), 2163(x), 1258(x), 1248(x), 2150(x), 1262(x), 1247(x), 1251(x), 1252(x) and 1253(x) of 1999).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.25‑‑‑Equality before law‑‑‑Employer could not mete out different treatment to two groups of its employees,. as dictates of law, justice and equity required exercise of power by all concerned to advance the cause of justice and not to thwart it.

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

‑‑‑‑S.4(1)‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Arts.25 & 212(3)‑‑‑Appeal to Service Tribunal‑‑‑Condonation of delay‑‑‑Time spent before incompetent forums‑‑‑Effect‑‑‑Petitioners unsuccessfully challenged order of termination of service before High Court through writ petitions, and thereafter filed petitions before Supreme Court, which were disposed of with observations that "for redress of grievance, they could approach Service Tribunal, which would consider the matter of limitation sympathetically" ‑‑‑Service Tribunal dismissed the appeals filed by petitioners as time‑barred holding that observations made in the case of Saleem Mustafa Sheikh and others (PLD 2001 SC 176) did not apply to the appeals‑‑‑Validity‑‑‑Supreme Court's direction had the effect of keeping the matter of limitation wide open for consideration by Service Tribunal‑‑­Petitioners' appeals were barred by 129 days and their case was almost at par with Saleem Mustafa Sheikh's case, whose appeal before Service Tribunal was barred by 105 days which delay the Service Tribunal had held to be reasonable‑‑‑Service Tribunal, following the rule of consistency should have condoned the delay in appeals of petitioner‑‑‑Service Tribunal had fallen into error in not condoning such delay even after noticing that they had been agitating the matter in High Court and Supreme Court since the time of their termination‑‑‑Supreme Court converted the petitions into appeals and allowed them by setting aside the judgments of Service Tribunal.

Managing Director, Sui Northern Gas Co. Ltd v. Saleem Mustafa Sheikh and others PLD 2001 SC 176 and 2001 PLC (C.S.) 60 fol.

(c) Service Tribunal Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 4‑‑‑Anneal before Service Tribunal‑‑‑Right of filing departmental representation‑‑‑Person, who was deemed to be a civil servant for purposes of Service Tribunals Act, 1973, could make a representation before Competent Authority, even if no departmental appeal had been provided.

Gulbat Khan v. WAPDA through its Chairman, Lahore and others 1992 SCMR 1789 eel.

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

‑‑‑‑S. 4‑‑‑Sui Gas Transmission Company Limited Service Rules, 1982, Rr.6.1, 6.2 & G.3‑‑‑Constitution of Pakistan (1973), Arts.25 & 212(3)‑‑­Appeal to Service Tribunal‑‑‑Appointment as trainee engineers on contract basis‑‑‑Termination of service‑‑‑Employees worked as trainee engineers for 4/5 years, whereafter their services were terminated by the Company‑‑‑After unsuccessfully challenging the order of termination of service before High Court and Supreme Court, petitioners ultimately filed appeals, before Service Tribunal, which were dismissed‑‑‑Contention was that petitioners having rendered service for more than 3 years were entitled to have natural result of successful completion of their probation and as such this course having not been adopted by the Company, they were entitled to same treatment as had been meted out to Saleem Mustafa Sheikh and others (PLD 2001 SC 176)‑‑­Validity‑‑‑Rules 6.1, 6.2 & 6.3 of Sui Gas Transmission Company Limited Service Rules, 1982 had been made applicable by Service Tribunal to terms and conditions of service of Saleem Mustafa Sheikh and others (PLD 2001 SC 176)‑‑‑Without considering the import and implication of said Rules and in absence of any justifiable reasons, services of petitioners could not be terminated‑‑‑Supreme Court converted petitions into appeals and allowed them by setting aside the judgments of Service Tribunal with direction to the Company to absorb the petitioners in their respective disciplines on same line as had been done in cases of Saleem Mustafa Sheikh and others (PLD 2001 SC 176).

Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612 ref.

Managing Director, Sui Northern Gas Co. Ltd. v. Saleem Mustafa Sheilkh and others PLD 200.1 SC 176 and 2001 PLC (C.S.) 60 eel.

Wasith Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners (in C.Ps. Nos.1670, 1711 to 1734, 1736 and 1827 to 1830 of 2000).

M. Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners (in C. Ps. Nos.1671, 1680 to 1710 and 1736 to 1774 of 2000).

Attaur Rehman Sheikh, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners (in C.Ps. Nos.1846 to 1852, 1854 to 1859, 1878 and 1879 of 2000).

M. Bilal. Senior Advocate Supreme Court for Petitioners (in C.Ps.Nos.401‑K to 403‑K, 405‑K to 408‑K and 416‑K of 2000).

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents (in C.Ps.Nos.401‑K to 403‑K, 405‑K to 408‑K and 416‑K of 2000).

Tanvir Bashir Ansari, Deputy Attorney‑General for the Federation of Pakistan.

Date of hearing: 29th January, 2001.

2002 SCMR 93

[Supreme Court of Pakistan]

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

and Rana Bhagwandas, JJ

BAHADUR ALI and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 358 and 359 of 1999, decided on 11th October, 2001.

(On appeal from the judgment of Lahore High Court, Lahore, dated 12-2-1998 passed in Criminal Appeal No. 117 of 1994).

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

----S.302(b)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court in both the petitions to the accused as well as to the complainant to reappraise the evidence in order to meet the ends of justice.

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

----S.302(b)---Constitution of Pakistan (1973), Art. 13---Sentence, enhancement of---Doctrine of double jeopardy---Applicability---Where an accused has served out a legal sentence of imprisonment for life on the charge of Qatl-i-Amd, appeal seeking enhancement of his sentence to death cannot be legally heard as the enhanced sentence, if recorded, would be hit by the doctrine of double jeopardy as per mandate of Art. 13 of the Constitution.

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

----S.544-A---Penal Code (XLV of 1860), S.302(b)---Compensation to the heirs of the deceased and imprisonment in default of such compensation--­Award of two years' R.I. to the accused, in default of payment of compensation was patently illegal being against the statute as S.544-A(2), Cr.P.C. unequivocally provided a sentence of imprisonment for a period not exceeding six months in such circumstances---Said sentence of two years' R.I. was modified by simple imprisonment for six months accordingly.

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

----S.302(b)---Criminal - Procedure Code (V of 1898), S.544-A--­Compensation, enhancement of---Accused had since been released from jail after having served out his entire sentence of imprisonment for life and the appeal for enhancement of his sentence to death was not pressed, however; enhancement of compensation payable to the legal heirs of the deceased was prayed for---Supreme Court though was not inclined to enhance the sentence of life imprisonment in view of the release of the accused but it enhanced the amount of compensation from Rs.50,000 to Rs.1,00,000 to be paid to the legal heirs of the deceased in circumstances.

Razia Begum v. Jehangir PLD 1998 SC 302 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 ref.

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

----Ss.302(b) & 34---Criminal Procedure, Code (V of 1898), S.417--- Constitution of Pakistan (1973.), Art.185---Appeat against acquittal--- Liability of accused, if any, would arise by reason of S.34, P.P.C., but neither he was named in the F.I.R. nor assigned any active role in the commission of the crime---Identification parade in respect of the accused was even held after 11-1/2 months without any justification---No weapon was recovered at the instance of accused and he was already confined in judicial custody at the time of his arrest in the case---No evidence being available connecting the accused with the commission of the crime and keeping in view his explanation given in his statement under S.342, Cr.P.C. he deserved acquittal---Appeal against acquittal of accused was dismissed accordingly.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant (in Cr. A. No. 358 of 1999).

Ch. Arshad Ali, Advocate Supreme Court for the State (in Cr. A. No. 358 of 1999).

Khadim Hussain Qaiser, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Appellant (in Cr. A. No. 359 of 1999).

Ch. Arshad Ali, Advocate Supreme Court for the State. (in Cr.A. No. 359 of 1999).

Muhammad Munir Peracha, Advocate Supreme Court for Respondent No.2 (in Cr. A. No. 359 of 1999).

Syed Zulfiqar Ali Bokhari, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.3 (in Cr. A. No. 359 of 1999).

Date of hearing: 11th October, 2001. .

2002 SCMR 99

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri Actg, CJ

Munir A. Sheikh and Rana Bhagwandas, JJ

FEROZE KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.495 of 2000, decided on 10th September, 2001.

(On appeal from the judgment dated 3‑4‑2000 of the Lahore High Court, Lahore passed in Criminal Appeal No.352 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to the accused to consider whether the conviction and sentence awarded to him were not sustainable on the grounds, that the F.I.R. was lodged after 18 hours of the murder; that the investigation had been conducted in the case before the recording of F.I.R.; that the evidence of eye‑witnesses was disbelieved in respect of two co­accused while it was accepted against the accused and that the medical evidence had clearly contradicted the ocular testimony' furnished by eye‑‑witnesses.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Interested witness ‑‑‑Concept‑‑­Interested witness is one who has an animus for false charge against the accused‑‑‑Mere relationship of a witness to the deceased or the relationship of the eye‑witnesses inter se, is not enough to discard their testimony because such a witness is necessarily not an interested witness stricto senso‑‑‑Even evidence of interested witness is always not discarded.

Raqib Khan v. The State 2000 SCMR 163; Niaz v. State PLD 1960 SC 387; Nazir Hussain v. State PLD 1965 SC 188 and Aslam and another v. The State 1997 SCMR 1284 ref.

(c) Penal Code (XLV of 1860)‑-----

‑‑‑‑S.302‑‑‑Appraisal of evidence‑‑‑Eye‑witnesses no doubt were not only related inter se but were also closely related to the deceased and might have been interested witnesses, nonetheless their testimony rang true particularly when the occurrence had taken place near the house of the deceased and the presence of the accused at the time, and place of occurrence could be believed‑‑‑Delay in lodging the F.I.R. had not occasioned any deliberation qua the identity of the assailants‑‑‑Investigating Officer had not conducted the investigation prior to the recording of the F. I. R.‑‑‑High Court had sifted the grain from the chaff while acquitting the two co‑accused and convicting the accused and no exception could be taken to the fact that the evidence of eye‑witnesses was disbelieved in respect of the two co‑accused and accepted against the accused‑‑‑Medical evidence did not in any way contradict the ocular testimony furnished by the eye‑witnesses who had successfully withstood the searching cross‑examination‑‑‑Motive had remained shrouded in mystery and although lack of motive at times had not been accepted by Supreme Court as mitigating circumstances, but when one or two motives were set up and the prosecution witnesses were wavering and jumping from one motive to another, it had assumed the nature of a mitigating circumstance‑‑‑Conviction of accused was consequently maintained, but his sentence of death was reduced to imprisonment for life in circumstances.

Raqib Khan v. The State 2000 SCMR 163; Niaz v. State PLD 1960 SC 387; Nazir Hussain v. State PLD 1965 SC 188 and Aslam and another v. The State 1997 SCMR 1284 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Incomplete story from both the sides would not deter the Courts of law to complete the true story for resolving the controversy‑‑‑Principle of "falsus in into falsus in omnibus" is alien to the criminal jurisprudence being followed in Pakistan‑‑‑Courts, therefore, have to undertake an arduous exercise of sifting the grain from the chaff.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Sentence‑‑‑Motive‑‑‑Mitigating circumstance‑‑‑Although lack of motive at times has not been accepted as a mitigating circumstance, but when one or two motives are set up and the prosecution witnesses are waivering and jump from one motive to another, it assumes the nature of a mitigating circumstance.

(f) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Interested witness‑‑‑Even evidence of an interested witness is always not discarded.

Syed Ali Hussain Gillani, Advocate Supreme Court for Appellant.

Ch. Ghulam Ahmad, Advocate Supreme Court for the State.

Dates of hearing: 7th and 10th September, 2001.

2002 SCMR 105

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

ANWAAR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.43 of 2001, decided on 18th September, 2001.

(On appeal from the judgment dated 16-1-1998 of Lahore High Court, Bahawalpur Bench passed in Criminal As. (SC) T Nos.22, 23 and 24 of 1997 and M. R. No. 13 of 1997).

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

----Ss. 302(b)/34 & 324/34---Criminal Procedure Code (V of 1898), S.544-A---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused by Supreme Court to examine the evidence led against him and also to determine the imprisonment to be suffered by him in default of payment or recovery of compensation under S. 544-A, Cr.P.C.

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

----Ss. 302(b)/34 & 324/34---Criminal Procedure Code (V 1 of 1898), Ss.544-A---Appraisal of evidence---Eye-witnesses including the complainant had categorically stated that the accused who was armed with a carbine had fired upon the deceased---Eye-witnesses were the inmates of the house and their presence on the spot was not challenged---Accused was nominated in the F.I.R.---Complainant party and accused persons were known to each other---Deceased had sustained several fire-arm injuries and the way he was fired at, it was immaterial that whose shot proved fatal---Accused' was equally responsible for the death of the deceased---Case against accused was neither of any mistaken identity nor of awarding lesser punishment to him--­Conviction and sentence of accused were upheld accordingly---Accused in case of default in payment of compensation or recovery thereof, was, however, directed to suffer imprisonment for six months only as provided by S.544-A, Cr.P.C.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellants.

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

Date of hearing: 18th September; 2001. .

2002 SCMR 109

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

Mir SALIM KHAN KHOSA‑‑‑Appellant

Versus

CHIEF ELECTION COMMISSIONER and others‑‑‑Respondents

Civil Appeal No. 1873 of 2001, decided on 2nd October, 2001.

(On appeal from the judgment, dated 22‑8‑2001 of the High Court of Balochistan, Quetta, passed in Constitutional Petition No.530 of 2001).

(a) Balochistan Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss.16(3) & 37‑‑‑Balochistan Local Government Elections Rules, 2000, R.57‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioner that the Division Bench of the High Court had not only accepted the viewpoint of the petitioner and rightly interpreted provisions of S.16(3) read with S.37 of Balochistan Local Government Elections Ordinance ,2000, and R.57 of the Balochistan Local Government Elections Rules, 2000, but had also observed that returned candidates were required to obtain 476 votes to fulfil the condition of more than 50 % of the votes from the electoral college, therefore, there was no reason to reject the Constitutional petition and decline the relief prayed for.

(b) Balochistan Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S.16 [as amended by Balochistan Local Government Elections (Third Amendment) Ordinance (XII of 2001)]‑---‑Nature---‑‑Scope and object of the Ordinance‑‑‑Test‑‑‑Election of Nazim and Naib‑Nazim‑‑‑Number of votes required‑‑‑Object and purpose of amendment‑‑‑Rationale and object of the amendment appears to be to ensure that the winning panel of candidates virtually represents the majority of the voters of the district and a penal of candidates out of three or four contesting panels does not win the election by securing 25% ‑or 30% of votes‑‑‑Amendments have redressed the possible anomaly under majority or plurality system where in the event of an election being contested by a large number of candidates one of them wins the election with a few votes and thereby represents only a small and not a large segment of the constituency ‑‑‑Unamended provisions envisaged a different mode of election and were too precise and unambiguous to need clarification‑‑‑If the intention of the Amending Ordinance had been to clarify the expression "majority", it would have been short and language used therein much simpler‑‑‑Amending Ordinance, cannot be called clarificatory, declaratory or curative.

(c) Balochistan Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S.16(2)&(3) [as amended by Balochistan Local Government Elections (Third Amendment) Ordinance (XII of 2001)]‑‑‑Election of Nazim and Naib­Nazim‑‑‑Number of votes required‑‑‑Expression 'more than 50 % of votes'‑‑‑Applicability‑‑‑Securing more than 50% of the total votes by fraction‑‑‑Validity‑‑‑Total number of votes in constituency were 949 and the returned candidates secured 475 votes‑‑‑Election was assailed before High Court in Constitutional petition on the ground that the returned candidates had not secured more than 50% of the votes from the electoral college‑‑‑High Court dismissed the petition and declined to interfere with the result of the election‑‑‑Validity‑‑‑50% of the total number of votes of the electoral college had come to 474.5 and the returned candidates having polled 475 votes had secured more than 50% of the total number of votes of the electoral college, therefore, the requirement of S.16(2) and S.16(3) of the Baclochistan Local Government Elections Ordinance, 2000, was satisfied‑‑‑Was immaterial whether the target had been achieved by a fraction and a round number‑‑‑No provision existed in S.16(2) or S.16(3) of the Balochistan Local Government Elections Ordinance, 2000, to the effect that a fractional majority would not be taken into consideration‑‑‑No doubt voters were human being but the votes cast by them at an election lost the human element at the stage of counting or recounting which was done by means of simple mathematical calculations‑‑‑Mathematically 475 being more than 50% of 949, Supreme Court declined to interfere with the judgment passed by the High Court.

American Jurisprudence, Second Edn., Vol .26 ref.

Wasim Sajjad, Senior Advocate Supreme Court, Amanuilah Kanrani, Advocate ' Supreme Court and Mehr Khan Malik, Advocate‑on­-Record for Appellant.

Makhdoom Ali Khan, Attorney‑General for Pakistan with M. Nawaz, Bhatti, Deputy Attorney‑General .for Respondent No. 1.

M. Ashraf Khan Tanoli, Advocate‑General, Balochistan for Respondent No.2.

Kh. Ahmed Tariq Rahim, Advocate Supreme Court for Respondent No.3.

M. Aslam Chishti, Senior Advocate Supreme Court for Respondent No.4.

Date of hearing: 26th September, 2001.

2002 SCMR 118

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and

Nazim Hussain Siddiqui, JJ

GHULAM NABI and others‑‑‑Petitioners

Versus

SHER MUHAMMAD through Legal Heirs‑‑‑Respondent

Civil Petition No..860‑L of 2001, decided on 10th July, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.21‑‑‑Punjab Pre‑emption Act (IX of 1991), S.13‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Pre‑emption suit‑‑‑Deficiency in court‑fee‑‑­Dismissal of suit‑‑‑Effect of judgment passed by Supreme Court in Said Kamal Shah's case (PLD 1986 SC 360)‑‑‑Contention of the vendees was that Punjab Pre‑emption Act, 1991, was promulgated in the year 1991, suit of the pre‑emptors could not be decreed even if the pre‑emptors were granted time to make up deficiency in the court‑fee and the same was made good and they were found to have right of pre‑emption according to the Punjab Pre‑emption Act, 1913, as such, the remand of the case was not justified and proceedings after remand would be exercise in futility‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the vendees.

Said Kamal Shah's case PLD 1986 SC 360 ref.

Khan Dil Muhammad Khan Ali Zai, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 10th July, 2001.

2002 S C M R 120

[Supreme Court of Pakistan]

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

GOVERNMENT OF SINDH through Advocate­

General Sindh, Karachi‑‑‑Petitioner

Versus

SOHAIL AKHTAR and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.557‑K of 2000, decided on 2nd April, 2001.

(On appeal from the judgment/order, dated 3‑10‑2000, passed by the High Court of Sindh, Karachi in First Appeal No.94 of 2000).

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.11‑‑‑Constitution of Pakistan (1973), Art. 185(3) ‑‑‑Acquisition of land‑‑‑Compensation ‑‑‑--Raising of new plea‑‑‑-- Government had acquiesced in the award by making payment so fixed to seven landowners without any reservation but withheld the same as regards the respondents-‑‑‑ Trial Court decreed the suit for compensation of the land so acquired by the Government and the judgment passed by the Trial Court was maintained by the High Court‑‑‑ Validity ‑‑‑Supreme Court observed that it was rather climax of the paradoxical position of the Government who willingly and unhesitatingly paid the amount of compensation to seven Khatedars and withheld the same as regards the respondents without any justification‑‑‑Government raised plea of the suit being time‑barred, whereas no such plea was raised earlier‑‑­Government was not expected to raise such frivolous and hypertechnical pleas before Supreme Court after having miserably failed in meeting its statutory and legal obligations towards the citizens once their land was acquired for public purpose‑‑‑Agency/the Government was duty‑bound to ensure payment of reasonable compensation to the owner of land and not to seek shelter behind technical objections‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

Suleman Habibullah, Additional Advocate‑General, Sindh and Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2001.

2002 SCMR 122

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

Sardar AHMED YAR KHAN JOGEZAI and 2 others‑‑‑Appellants

Versus

PROVINCE OF BALOCHISTAN through Secretary, C&W Department‑‑‑Respondent

Civil Appeals Nos.747 to 750 of 1995, decided on 8th October, 2001.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 13‑6‑1995 passed in C.M. Appeals Nos.21, 22, 23 and 24 of 1989).

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

‑‑‑‑S.38 read with O.XXI‑‑‑Decree‑‑‑Rectification by Executing Court‑‑­Validity‑‑‑Judgment and decree passed by High Court, duly concurred by Supreme Court and after attaining finality cannot be modified, changed and no deletion, insertion or addition can be made by the Executing Court.

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

‑‑‑‑S. 38 read with O.XXI‑‑‑Decree, execution of‑‑‑Modification of decree‑‑­Jurisdiction of Executing Court‑‑‑Judgment and decree passed in favour of the respondent had attained finality‑‑‑Executing Court at the time of execution of the decree, modified the decree' by changing the rate of interest specified in the decree‑‑‑Validity‑‑‑Substitution or amendment could not have been made by the Executing Court as the same amounted to an attempt to frustrate the object‑of the judgment and decree which had already attained finality‑‑‑Such order passed by the Executing Court was arbitrary, capricious and coram non judice‑‑‑Executing Court could not go behind the decree‑‑­When decree passed attained finality, it had got to be executed even if it was erroneously passed‑‑‑Executing Court could not rectify any mistake in decree which would tantamount to going behind the decree‑‑‑High Court had rightly set aside the order passed by the Executing Court.

Messrs Haji Ahmed & Co. v. Muhammad Siddique and others PLD 1965 Kar. 293; Ghanaya Lal and others v. Punjab National Bank Ltd., Lahore AIR 1932 Lah. 534 and Abdul Khaliq v. Haji PLD 1983 Lah. 445 and Topanmal v. Kundomal Gangaram AIR 1960 SC 388 ref.

(c) Limitation Act (IX of 1908)‑‑‑--

‑‑‑‑S.5‑‑‑Civil Procedure Code (V of 1908), S.38 read with O.XXI‑‑­Condonation of delay‑‑‑Order passed in abuse of power and authority‑‑­Appeal‑‑‑Modification of decree by Executing Court‑‑‑Validity‑‑‑Where order passed by Court was coram non judice, capricious, passed in abuse of power and authority, delay of 45 days in filing of appeal was rightly condoned‑‑‑Under the garb of limitation blanket authority could not be given to Executing Courts to modify the decree passed by the Appellate Courts which would not only be contemptuous but would also amount to misconduct.

(d) Limitation‑‑‑

‑‑‑‑ Bar of limitation‑‑‑Applicability‑‑‑Where essential feature for assumption of jurisdiction is contravened or forum exercises powers not vested in it, or exceeds authority beyond limits prescribed by law, the judgment is rendered coram non judice and inoperative‑‑‑Question regarding bar of limitation in such exceptional cases loses significance.

Atta Muhammad Qureshi v. The Settlement Commissioner and others PLD 1971 SC 61; Mrs. Zubalda Begum v. Mrs. S.T. Naqvi 1986 SCMR 261; Malik Khawaja Muhammad and others v. Marduman Babar Kahol and others 1987 SCMR 1543 and Haji Muhammad Moosa and another v. Provincial Government of Balochistan through Collector Khuzdar 1986 CLC 2951 ref.

Nemo for Appellants.

Muhammad Ashraf Tanoli, Advocate‑General, Balochistan, Dil Muhammad Tarar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent.

Date of hearing: 8th October, 2001.

2002 SCMR 129

[Supreme Court of Pakistan]

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

INAYAT ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.217‑L of 2000, decided on 6th July, 2001.

(On appeal from the judgment of Lahore High Court, Lahore, dated 13th, April, 2000 passed in Criminal Miscellaneous No. 1377/13C of 2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Accused was alleged to have fired at the eye‑witnesses and caused them injuries‑‑‑Doctor who had examined the said eye‑witnesses, had found fire‑arm injuries on their bodies‑‑‑Case of accused was not at par with that of co‑accused already released on bail‑‑‑Impugned order was based on cogent reasons and sound principles of law and was not open to any exception‑‑‑Leave to appeal was refused to accused by Supreme Court and bail was declined to him in circumstances.

Q.M. Salim, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Muhammad Taqi Khan, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record for Caveator.

Date of hearing: 6th July, 2000.

2002 S C M R 130

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

CENTRAL BOARD OF REVENUE

and others‑‑‑Petitioners

Versus

TANDLIANWALA SUGAR MILLS and others----‑‑Respondents

Civil Review Petitions Nos. 196 and 215 to 236 of 2000, decided on 22nd October, 2001

(On review of the judgment dated 19‑5‑2000 in this Court).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI‑‑‑Review of Supreme Court Judgment‑‑‑Contention of the counsel for petitioner, in support of review petition, was that he (the counsel) was not in a proper frame of mind due to 'blood pressure' and other ailments at the relevant time, therefore, the concession attributed to him in the judgment of the Supreme Court may be recalled‑‑‑Validity‑‑‑Petitioner having been represented by another counsel as well, Supreme Court declined the review of judgment on the ground urged by the counsel of the petitioner.

A. Karim Malik, Senior Advocate Supreme Court instructed by Muhammad Aslam Ch., Advocate‑on‑Record for Petitioners.

Ali Ahmed Awan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents/Mills.

Ali Sibtain Fazli, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record for Respondents (in C.R.P. No.229 of 2000).

Date of hearing: 22nd October, 2001.

2002 SCMR 134

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and

Tanvir Ahmed Khan, JJ

SAJAWAL KHAN‑‑‑Petitioner

Versus

WALI MUHAMMAD and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 156/L of 1999, decided on 8th August, 2001.

(On appeal from the order dated 19‑11‑1998 passed by the Lahore High Court, Multan Bench, Multan, in Civil Revision No.684 of 1996)

(a) Act of Court‑‑‑

‑‑‑‑ Actus curiae neminem gravabit (an act of the Court shall prejudice no man)‑‑‑Filing appeal before wrong forum by mistake in decree sheet‑‑­Effect‑‑‑Where it was act of the Court demonstrated in the decree sheet which prompted the respondents to file the appeal before the District Judge, it would really be a harsh view to non‑suit the respondents for approaching the wrong appellate forum‑‑‑Party should not be made to suffer on account of act/omission on the part of the Court or other State functionaries.

Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859; Fateh Khan v. Boze Mir PLD 1991 SC 782; Abdul Rashid v. Abdul Salam and others 1991 SCMR 782; 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 P.Cr.LJ 2434; Ghulam Haider and others v. Mst. Raj Bharri and others PLD 1988 SC 20; Muhammad 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; Iftikhar Baig v. Muhammad Azam and others 1996 SCMR 762; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Ghulam Hussain v. Jamshaid Ali and others 2001 SCMR 1001 and The State v. Asif Adil and others 1997 SCMR 209 ref.

(b) Duty of Court‑‑‑

‑‑‑‑ Law not brought to the notice of the Court by the parties‑‑‑Effect‑‑­Courts are duty‑bound to apply the provisions of law in their true perspective and the same cannot be avoided simply on the ground that the relevant provisions of law were not brought to their notice by the parties.

PLD 1992 SC 236 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Administration of justice‑‑‑Technicalities‑‑‑Parties had been locked in litigation since year 1977‑‑Nearly quarter of century had passed and the end of litigation was not in sight‑‑‑Trial Court dismissed the suit in the year 1982, and more than 19 years had gone by but even the first appeal against the judgment had not been disposed of‑‑‑Effect‑‑‑Cases of the parties be decided on merits and technical knock‑out should sparingly be resorted to‑‑‑Petitioner, in the present case, had successfully embroiled/involved the respondents in technicalities for a period spreading over more than two decades‑‑‑Supreme Court took the serious note of such state of affairs as the same had contributed to the pendency of cases before the higher forums and observed that unless and until such sort of practice was not arrested with an iron hand, the pendency in the Courts would never come to an end and the parties would spend their entire life and earning in litigation‑‑‑Supreme Court declined to interfere with the order passed by the High Court, whereby revision petition filed by the petitioners was dismissed‑‑‑Leave to appeal was refused.

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Nazir Ahmed and another v. Muhammad Din and others 2000 SCMR 440; Imtiaz Ahmad v. Ghulam and 2 others PLD 1963 SC 382 and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Hassan Ahmed Khan Kanwar, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Hasnat Ahmed Khan, Advocate Supreme Court with C.M. Lateef, Advocate‑on‑Record for Respondents.

Date of hearing: 8th August, 2001.

2002 SCMR 142

[Supreme Court of Pakistan]

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

TEEKAM DAS M. HASEEJA, EXECUTIVE ENGINEER, WAPDA‑‑‑Petitioner

Versus

CHAIRMAN, WAPDA and another‑‑‑Respondents

Civil Petition No. 685 of 1 998, decided on 25th January, 1999.

(On appeal from the judgment dated 26‑8‑1998 of the High Court of Sindh, Hyderabad Circuit in C.P. No. 45/97).

Civil Servant Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Arts.199 & 212(3)‑‑‑Seniority in service‑‑‑Determination‑‑‑Failure to decide representation of civil servant by the Department‑‑‑High Court in exercise of Constitutional jurisdiction declined to decide the matter as the same was within the jurisdiction of Service Tribunal‑‑‑Validity‑‑‑Civil servant had every right to approach the Service Tribunal if his representation was not decided within the statutory time allowed under the Service Tribunals Act, 1973‑‑‑Where appeal before Service Tribunal was barred by limitation, Supreme Court directed the Tribunal to take into consideration all the relevant facts for deciding application for condonation of delay sympathetically‑‑‑Leave to appeal was refused.

A.G. Mangi, Advocate Supreme Court with Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th January, 1999.

2002 S C M R 144

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Hamid Ali Mirza, JJ

Mst. ANWAR BIBI and others‑‑‑Petitioners

Versus

ABDUL HAMEED‑‑‑Respondent

Civil Petition No. 2515 of 2001, decided on 17th September, 2001.

(On appeal from the judgment dated 13‑8‑2001 passed by the Lahore High Court, Rawalpindi Bench in C.R. No. 264‑D/1991).

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Exclusion of time of proceeding bona fide in Court without jurisdiction‑‑‑Provision of S.14 of Limitation Act, 1908‑‑‑Applicability‑‑­Provision of S.14 of the Limitation Act, 1908, applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature which makes it impossible for the Court to entertain it‑‑‑Object behind S.14 of the Limitation Act, 1908, is protection against the bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Phrase 'other cause of like nature'‑‑‑Meaning‑‑‑Phrase has meaning ejusdem generis that of the words, defect of jurisdiction.

(c) Limitation Act (IX of 1008)‑‑‑

‑‑‑‑S. 14‑‑‑Civil Procedure Code (V 4f 1908), O.XXIII, Rr.l & 2‑‑­Withdrawal of suit‑‑‑Provisions of S.14, Limitation Act, 1908‑‑­Applicability‑‑‑Where the first suit was withdrawn under O.XXIII, R.1, C.P.C. in view of the provisions of O.XXIII, R.2, C.P.C. the provision of S.14 of the Limitation Act, 1908, was not applicable.

Varajlal Bhaishankar Selat and others v. Shomesh War alias Amratlal Raridat Bhat ILR 29 Born. 219; ALAR Arunachellam Chettiar and others v. Lakshmana Ayyar and another ILR 39 Mad. 936 and Rahim Ali and others v. Yehia Khan and others AIR 1928 All. 402(2) ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Plea of limitation‑‑‑Concurrent findings of facts by the Courts below‑‑‑Interference by High Court in exercise of jurisdiction under S.115, C.P.C.‑‑‑Scope‑‑‑Since plea of limitation which was a legal and factual plea was not legally dealt with and evidence on record was also misread by the Courts below High Court was justified in interfering with the concurrent findings which were on the face of record illegal‑‑‑High Court had rightly interfered with the concurrent findings so as to see that complete justice was done to the party who was made to suffer on account of illegality of the two Courts below‑‑‑Power of High Court in the revisional jurisdiction was limited but in the present case both the Courts below had acted in the exercise of jurisdiction illegally and had misread the evidence on record, therefore, interference by the High Court was justified and legal‑‑­Supreme Court declined to interfere with the judgment passed by High Court in exercise of jurisdiction under S. 115, C.P.C. in circumstances.

F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Mst. Ranee Surno Moyee v. S)tooshee Okhee Burmna (1886)12 MIA 244; Baijnath Suhai v. Ramgut Singh ILR 1896 Cal. 755 (PC); Vallabh Das v. Dr. Madanlal and others AIR 1970 SC 987; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Abdul Hakeem v. Habibullah and others 1997 SCMR 1139 and Muhammad Bux v. Muhammad Ali 1984 SCMR 504 ref.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 17th September, 2001.

2002 SCMR 155

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Wajihuddin Ahmed and Kamal Mansur Alam, JJ

GOVERNMENT OF SINDH through Advocate‑General, Sindh, Karachi‑‑‑Petitioner

Versus

MASOOD HUSSAIN and others‑‑‑Respondents

Civil Petitions Nos.342‑K to 349‑K of 1999, decided on 3th August, 1999.

(On appeal from a common judgment of Sindh Service Tribunal, dated 6‑4‑1999 passed in Appeals Nos. 13, 17, 19, 15, 14, 22, 21. and 18 of 1997 respectively).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Reinstatement in service ‑‑‑Condonation of delay by Service Tribunal‑‑‑Perverse findings of Service Tribunal‑‑‑Onus to prove‑‑‑Civil servants' appeals were time‑barred and Service Tribunal while considering the order of termination as being void and mala fide condoned the delay and allowed the appeals‑‑.‑Validity‑‑­Was for the Authorities to have produced material before Supreme Court to demonstrate that the findings of the Service Tribunal were either perverse or based on no evidence‑‑‑No such plea had been raised in the memo. of petition filed before Supreme Court‑‑‑Question agitated by the Authorities was purely a question of fact which had been decided against the Authorities and the Authorities had not been able to show that the findings of Service Tribunal suffered from any perversity‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Leave to appeal was refused.

Muneer‑ur‑Rehman, Addl. A.‑G. and Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd August, 1999.

2002 SCMR 158

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Qazi Muhammad Farooq and

Mian Muhammad Ajmal, JJ

MUHAMMAD AMJAD ALI KHAN and others‑‑‑Appellants

Versus

SHAFIQ AHMED and others‑‑‑Respondents

Civil Appeal No. 1947 of 2000, decided on 19th September, 2001.

(On appeal from the judgment dated 5‑10‑2000 of the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore, passed in Service Appeal No‑5 of 1993).

(a) West Pakistan Civil Servants (Judicial Branch) Rules, 1962‑‑‑

‑‑‑‑R.9‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appointment in subordinate judiciary‑‑‑Contention of the petitioners was that the prayer made by the contesting respondents in the Intra‑Court Appeal that they be adjusted against the additional 50 posts would be deemed to have been rejected in view of the direction that their appointment be made against the future vacancies; the contesting respondents had accepted the offer of their appointment against future posts, therefore, the matter had become past and closed and the Tribunal had no jurisdiction to re‑open the same; the 50 posts against which the contesting respondents had sought appointment were filled in before the disposal of the Intra‑Court appeal, therefore, in view of the judgment rendered therein they were entitled to appointment against future vacancies i.e. the vacancies becoming available after the judgment and their seniority was to be determined accordingly and the appointees against the 50 posts ought to have been heard before making an order prejudicial to their interest qua seniority‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions of the petitioners.

(b) West Pakistan Civil Servants (Judicial Branch) Rules, 1962‑‑‑

‑‑‑‑R.9(a)‑‑‑Seniority list‑‑‑Objection to‑‑‑Appointment against additional posts‑‑‑Vacancies of 28 Civil Judges were filled by the Public Service Commission in the year 1987, respondents were also declared successful but they were not appointed‑‑‑While the competitive examination for the 28 posts was being held, another requisition for recruitment against 50 posts of Civil Judges was sent to the Commission‑‑‑Respondents approached the High Court for their appointment and finally they were appointed as Civil Judges against future posts for which requisition had already been placed before the Commission‑‑‑Respondents, in the seniority list prepared after the appointment of the parties were placed below the appellants who were appointed as a result of competitive examination held in the year 1988, against requisition for recruitment of 50 Civil Judges‑‑‑Respondents assailed the seniority list before the Punjab Subordinate Judiciary Service Tribunal‑‑­Appeal of the respondents was allowed and the seniority list was directed to be corrected‑‑‑Validity‑‑‑Respondents were not candidates in the competitive examination held in the years 1988 and 1989 and were taken from the merit list prepared as a result of competitive examination held in the year 1987, therefore, they belonged to 1988 batch and their seniority was to be determined accordingly.

Farooq Amjad Meer, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record (absent) for Appellants.

Sheikh Ziaullah, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Respondents Nos. l to 5.

Malik Ainul Haq, Advocate Supreme Court for Respondents Nos.58 and 59.

Date of hearing: 19th September, 2001.

2002 SCMR 164

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and

Tanvir Ahmed Khan; JJ

Mst. SAMIA NAZ and others ---Petitioners

Versus

Sheikh PERVAIZ AFZAL and others---Respondents

Civil Petitions Nos.820 and 966-L of. 1999, decided on 20th December, 2000.

(On appeal from the judgment dated 26-3-1999 of the Lahore High Court passed in R.S.As. Nos.41 and 69 of 1988).

(a) Islamic Law---

Inheritance---Share of widow---Courts below did not commit any illegality in arriving at the conclusion that in the house owned by the deceased, his widow would inherit 1/8 share as widow which had been given to her.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Constitution of Pakistan (1973), Art. 185(3)--inheritance --- Heirs of predeceased son---Contention of the petitioner, was that provisions of S.4 of the Muslim Family Laws Ordinance, 1961 having been declared by the Supreme Court to be repugnant to Injunctions of Islam respondents were not entitled to inherit any property left by their deceased grandfather--­Validity---Where father of the respondents died in the year 1962, the Muslim Family Laws Ordinance, 1961, as it then existed had been rightly applied to the case---Declaration by the Federal Shariat Court and the Shariat Appellate Bench of Supreme Court as to repugnancy having come much latter did not affect the right of the respondents to inherit the share of their father/pre­deceased son of the deceased---Findings recorded by the Courts below did not suffer from any illegality, Supreme Court declined to interfere with the judgments passed by the Courts below---Leave to appeal was refused.

Abdul Hameed and 23 others v. Muhammad Mohiyuddin Siddique Raja and 3 others PLD 1997 SC 730 and Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466 ref.

Ch. Khurshid Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No. 820-L of 1999).

M. Shahzad Sha?ikat, Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Petitioner (in C.P. No. 966-L of 1999).

M. Naazar Khan, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record; M. Shahzad Shaukat, Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Respondents.

Date of hearing: 20th December, 2000.

2002 SCMR 167

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Munir A. Sheikh, JJ

Prof. Dr. M. FAHEEMUDDIN ‑‑‑ Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petition No.383‑K of 2001, decided on 2nd August, 2001.

(On appeal from the judgment dated 12‑4‑2001 of the Sindh Service Tribunal passed in Appeal No.38 of 2000).

Sindh Boards of Intermediate and Secondary Education Ordinance, (VI of 1972)‑‑‑

‑‑‑‑S.14(2)‑‑‑Constitution of Pakistan (1973), Art.213(3)‑‑‑Chairman of Intermediate and Secondary Education Board‑‑‑Duration of appointment‑‑­Appointment of the Chairman was on deputation basis and he was retired from service on attaining the age of superannuation ‑‑‑Validity‑‑‑Service Tribunal was right in holding that the civil servant having attained the age of superannuation could not continue to hold the office of Chairman of the Board and his appointment automatically came to an end‑‑‑Judgment passed by the Service Tribunal did not have any legal flaw or infirmity and there was no question of law of public importance within the contemplation. of Art.212(3) of the Constitution involved warranting interference of Supreme Court‑‑‑Leave to appeal was refused.

Akhtar Hussain, Advocate Supreme Court for Petitioner.

M.M. Aqil, Advocate Supreme Court, Faizanul Haq, Advocate‑on-­Record and Suleman Habibullah, A.A.G. for Respondents.

Date of hearing: 2nd August, 2001.

2002 SCMR 168

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Abdul Hameed Dogar, JJ

ABDUL RASHID‑‑‑Petitioner

Versus

BABOO through Legal Heirs‑‑‑Respondent

Civil Petition No. 569‑K of 2000, decided on 23rd December, 2000.

(On appeal from the judgment dated 29‑11‑2000 of High Court of Sindh in F.R.A. No. 140 of 1994).

Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑--

‑‑‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlord‑‑‑Admissions of tenant in cross‑examination‑‑ Rent Controller allowed eviction application filed by landlord and the order of eviction was maintained by High Court‑‑‑Contention of the tenant was that the application filed by the landlord was based on mala fides ‑‑‑Validity‑‑­Plea raised by the tenant was rightly turned down by the Rent Controller‑‑­Admissions of the tenant in cross‑examination were enough to prove the bona fide personal need of the landlord‑‑‑Concurrent findings of Rent Controller and High Court were perfectly correct, and not open to any exception‑‑‑Leave to appeal was refused.

Abdul Rahim Kazi, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd December, 2000.

2002 SCMR 171

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

In re: TO REVISIT "THE STATE V. ZUBAIR" [PLD 1986 SC 173]

Suo Motu Criminal Review No.9 of 2001, decided on 26th November, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑---‑‑Ss. 497 & 498‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Bail‑‑‑Suo motu criminal review under Art. 184(3) of the Constitution by the Supreme Court‑‑‑Supreme Court, in State v. Zubair PLD 1986 SC 173, inter alia, had observed that if a Judge of a High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he is sitting and in case it was absolutely impossible to place the second or subsequent bail application before the same Judge, who had dealt with the earlier bail application of the same accused or in the same case, in such cases, the Chief Justice of the concerned High Court may order that it be fixed for disposal before any other Bench/Judge of that Court‑‑‑Supreme Court, taking suo motu notice of the difficulties arising out of the strict implementation of the ratio in the State v. Zubair and on receipt of the reports from High Courts of the country and hearing the Attorney‑General of Pakistan and Advocates‑General of all the Provinces observed that the spirit underlying the said case which still held the field was not intended to create difficulties/bottlenecks or to work prejudicially to the interest of all concerned‑‑‑Chief Justice of concerned High Court, in such a situation was to examine whether in any of the given case, due to non‑availability of the Bench/Judge, who had earlier dealt with the bail application, owing to exigencies of service or any other sufficient cause, departure be made in the larger interest of justice and refer the cause to another Bench/Judge for reasons to be recorded in writing; same procedure was to be followed at the Benches where similar orders may be passed by the Senior Judge‑‑­Constitution of the Benches was the exclusive function of the Chief Justice‑‑­Ordinarily, subsequent bail application by the same accused or in the same case must be placed for disposal before the same Single Judge/Division Bench of the High Court which had dealt with the first bail application‑‑‑If the Single Judge, who had dealt with the first bail application, is not available and departure from the principle that subsequent bail application must be placed for disposal before the Senior Bench of a High Court which had dealt with the first bail application is unavoidable, the Chief Justice concerned may refer the second or subsequent bail application to another learned Single Judge at the Principal Seat or Permanent Benches/Circuit Benches, as the case may be‑‑‑Where, however, the first bail application was heard and disposed of by a Division Bench which is not available either at the Principal Seat or the Permanent Benches/Circuit Benches at the time of filing of the second or subsequent bail application then such bail application shall be heard by a Division Bench of which one of the Judges was a Member of the Division Bench which dealt with the first bail application‑‑‑If none of the Members of the Division Bench which heard the first bail application was available, the Chief Justice concerned may assign the subsequent bail application to any appropriate Division Bench at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be‑‑‑Subsequent bail applications shall be filed, heard and disposed of at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be, where the first bail application was filed and finally disposed of‑‑‑In the event of non‑availability of the Single Judge or the Member/s of the Division Bench, who had dealt with the earlier bail applications, the office at the Principal Seat shall obtain appropriate orders from the Chief Justice and the office at the Permanent Benches/Circuit Benches shall obtain appropriate orders from the Chief Justice through fax or on telephone for fixation of subsequent bail application before other appropriate Bench, in the interest of expeditious and inexpensive dispensation of justice in bail matters‑‑Subsequent bail application shall not be entertained unless accompanied by copies of earlier bail applications and copies of orders thereon.

In the State v. Zubair (PLD 1986 SC 173), it was, inter alia, observed by the Supreme Court that if a Judge of a High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he is sitting. In case it was absolutely impossible to place the second or subsequent bail application before the same Judge who had dealt with the earlier bail application of the same accused or in the same case, in such cases, the Chief Justice of the concerned High Court may order that it be fixed for disposal before any other Bench/Judge of that Court.

Supreme Court, in view of difficulties arising out of the strict implementation of the ratio in Zubair's case took suo motu action in the matter under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, and directed that a case be registered and listed for preliminary hearing before the Court.

Pursuant to the directions issued by the Supreme Court to the Registrars of the Federal Shariat Court and the High Courts reports were received from the Federal Shariat Court and High Courts of the country. Supreme Court, after hearing the Attorney‑General for Pakistan and Advocates‑General of all the Provinces observed as under:

The spirit underlying Zubair's case which still holds the field was not intended to create difficulties/bottlenecks or to work prejudicially to the interest of all concerned. If it is so, it is for the Chief Justice concerned to examine whether in any of the given case, due to non‑availability of the Bench/Judge, who had earlier dealt with the bail application, owing to exigencies of service or any other sufficient cause, departure has to be made in the larger interest of justice and refer the cause to another Bench/Judge for reasons to be recorded in writing. The same procedure should be followed at the Benches where similar orders may tie passed by the Senior Judge.

Constitution of the Benches was the exclusive function of the Chief Justice.

Ordinarily, subsequent bail application by the same accused or in the same case must be placed for disposal before the same Single Judge/Division Bench of the High Court which had dealt with the first bail application.

If the Single Judge who had dealt with the first bail application is not available and departure from the principle that subsequent bail application must be placed for disposal before the Senior Bench of a High Court which had dealt with the first bail application is unavoidable, the Chief Justice concerned may refer the second or subsequent bail application to another learned Single Judge at the Principal Seat or Permanent Benches/Circuit Benches, as the case may be.

Where, however, the first bail application was heard and disposed of by a Division Bench which is not available either at the Principal Seat or the Permanent Benches/Circuit Benches at the time of filing of the second or subsequent bail application then such bail application shall be heard by a Division Bench of which one of the Judges was a Member of the Division Bench which dealt with the first bail application. If none of the Members of the Division Bench which heard the first bail application was available, the Chief Justice concerned may assign the subsequent bail application to any appropriate Division Bench at the Principal Seat or the Permanent Benches/Circuit Benches, as the case may be.

Subsequent bail applications shall be filed, heard and disposed of at the Principal Seat or the Permanent Benches/Circuit Benches, as the case .may be, where the first bail application was filed and finally disposed of. In the event of non'‑availability of the Single Judge or the Member/s of the Division Bench, who had dealt with the earlier bail applications, the office at the Principal Seat shall obtain appropriate orders from the Chief Justice and the office at the Permanent Benches/Circuit Benches shall obtain appropriate orders from the Chief Justice through fax or on telephone for fixation of subsequent bail application before other appropriate Benches, in the interest of expeditious and inexpensive dispensation of justice in bail matters.

Subsequent bail application shall not be entertained unless accompanied by copies of earlier bail applications and copies of orders thereon.

The State v. Zubair PLD 1986 SC 173 considered.

Mir Khan v. The State 1999 SCMR 790; Farid v. Ghulam Hassan 1968 SCMR 924; Muhammad Khan v. Muhammad Aslam 1971 SCMR 789; Muhammad Khan v. Sanaullah PLD 1971 SC 324; Khan Beg v. Sajawal PLD 1984 SC 341; State v. Zubair PLD 1986 SC 173; Muhammad Taj v. Muhammad Akhtar 1997‑SCMR 1336; Roshan v. State 1989 PCr.LJ 609; Badal v. State 1990 PCr.LJ 31; Muhammad Mustaqeem 'v. State 1990 PCr.LJ 1216; Ali Hassan v. The State 2001 SCMR 1047 and Muhammad Riaz v. The State 2002 SCMR 184 mentioned.

Makhdoom Ali Khan, Attorney‑General for Pakistan; Raja Qureshi, Advocate‑General, Sindh, Rashidul Haq Qazi, Advocate‑General N.‑W.F.P., Tariq Khokhar, Additional Advocate‑General, Punjab and Akhtar Zaman, Additional Advocate‑General, Balochistan (on Court's Notice).

Date of hearing: 26th November, 2001.

2002 SCMR 181

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Muhammad Bashir Jehangiri, Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

CHAIRMAN, RAILWAY BOARD‑‑‑Petitioner

Versus

MUHAMMAD ARSHAD and others‑‑‑Respondents

Civil Petition for Leave to Appeal No‑1782 of 2001, decided on 26th November, 2001.

(On appeal from the judgment dated 16‑4‑2001 passed by Federal Service Tribunal, Islamabad in Appeal No.477(L)CS/2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Dismissal from service‑‑‑Charge of corruption against civil servant having been proved as a result of enquiry, he was dismissed from service and order of recovery of specified amount was also passed against him‑‑‑Civil servant, after exhausting departmental remedy, filed appeal before the Service Tribunal which was accepted and while maintaining the punishment of recovery of specified amount from the civil servant modified the penalty of dismissal from service to withholding of promotion for a period of 3 years after a person junior to him had been promoted‑‑‑Appeal of the civil servant was accepted by the Tribunal with the observations that the matter was the first instance of corruption by the civil servant and amount involved was less than rupees two lacs‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to examine the contention of the Department, inter alia, that mere fact that it was the first instance of corruption indulged in by the civil servant in his service career, was no justification in law for awarding minor penalty and that appeal before the Service Tribunal filed by the civil servant was time‑barred and no application for condonation of delay was preferred.

Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan OLD 2000 SC 869 quoted.

Saeedur Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Petitioner.

Mian M. Hussain, Advocate Supreme Court and Faizur Rehman, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 26th November, 2001.

2002 SCMR 184

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and

Javed Iqbal, JJ

MUHAMMAD RIAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 458 of 2000, decided on 18th January, 2001.

(On appeal from the order dated 26‑10‑2000 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 5709/B/2000).

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

‑‑‑‑Ss. 497/498‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider whether after withdrawal of first bail petition, second bail application was maintainable or not.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Successive bail applications‑‑‑Duty of counsel---‑­Counsel was duty‑bound to mention in bail application filed by him the fact of having filed previous application for bail alongwith result thereof.

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

‑‑‑‑Ss. 497/498‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑­Decision of first and subsequent application by the same Judge‑‑‑Supreme Court disapproved the practice of withdrawing bail application from one Judge and then making a fresh application soon thereafter, so that it might be dealt with by another Judge‑‑‑Subsequent bail application must be placed before the same Judge, who had dealt with the first bail application.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Second or successive bail applications‑‑‑Practice of filing successive bail applications in the same case either by same accused or his co‑accused and getting it fixed before a different‑Judge would result in conflicting judgments and encourage malpractice by ‑accused persons to bring the judicial system into disrepute‑‑‑Conflicting order given by another Judge in subsequent application might give rise to a false impression that second order was based on extraneous considerations.

(e) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Simple withdrawal of bail application ‑‑‑Effect‑‑­Withdrawal of bail application simpliciter would not mean that it was dealt with on merits or on grounds pressed‑‑‑Such withdrawal would not be a bar in moving a second bail application, which must be heard by the same Judges)/Bench allowing the withdrawal of first bail application.

(f) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Subsequent bail application‑‑‑Fresh ground‑‑‑Ground not urged even though available at the time of earlier bail application, which was decided on merits, would not constitute a fresh ground justifying the filing of second bail application.

(g) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497/498‑‑‑Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 427‑‑‑Bail‑‑‑Withdrawal of first application‑‑‑First bail application was dismissed as withdrawn by Division Bench of High Court‑‑‑Second bail application seeking same relief was dismissed by a different Division Bench being not maintainable in view of ratio of Zubair's case reported as PLD 1986 SC 173‑‑‑Validity‑‑‑Second bail application ought to have been decided by same Bench, who‑ had permitted withdrawal of earlier bail application‑‑‑Supreme Court allowed the appeal and remanded the case to High Court for re‑hearing bail application by same Bench, who had permitted to withdraw the first bail application.

Farid v. Ghulam Hussain 1968 SCMR 924; Khan Beg v. Sajawal PLD 1984 SC 341 and The State through Advocate‑General, N.‑W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court for Appellant.

Nazir Ahmed Ghazi, Advocate Supreme Court for the Complainant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 18th January, 2001.

2002 SCMR 189

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and

Syed Deedar Hussain Shah, JJ

MUHAMMAD ALTAF and 5 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 243 of 1997, decided on 17th August, 2001.

(On appeal from the judgment dated 3‑11‑1996, of the Lahore High Court, Lahore passed in Cr. A. 200/94 and Murder Reference No. 35 of 1995).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/149, 324/149 & 148‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contentions were that the testimony of the Police Officer as Court witness declaring four accused as not guilty had not been considered in its correct perspective as the accused had not been extended the benefit accruing from it; that the order of the Magistrate discharging the said accused was not taken into consideration and was set aside without affording an opportunity of hearing to the accused or recording some evidence; that the testimony of the eye‑witnesses had not been found confidence‑inspiring in respect of the two acquitted accused and such evidence could not be made basis for conviction of accused in absence of trustworthy and reliable supporting evidence; that the eye‑witnesses who gave ocular account were interested and without independent corroboration of their evidence it could not be made basis for a finding of guilt, and that the glaring conflict in medical and ocular evidence had been discarded without any valid reason‑‑­Leave to appeal was granted to accused by Supreme Court to consider the said contentions.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 149 & 302‑‑‑Every member of unlawful assembly to be guilty of offence committed in prosecution of the common object‑‑‑Ingredients of S.149, P.P.C. have to be established by the prosecution‑‑‑Liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained‑‑‑Word "knew" occurring in the second part of S.149, P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution, of the common object of the assembly‑‑‑Not sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/149, 324/149 & 148‑‑‑Appreciation of evidence‑‑‑In order to avenge a trivial and insignificant incident over pigeons, the grandfather, his son and grandson could not be held to have formed an unlawful assembly with the only object to commit murder‑‑‑Section 149, P.P.C., in circumstances, could not be made applicable to the facts of the case‑‑‑Every accused, therefore, was held liable to be punished for. the act committed by him during the attack and he was so convicted and sentenced by the Supreme Court accordingly.

Sultan Ahmed and another v. State PLD 1970 SC 206 and Saeedullah Khan v. State 1986 SCMR 1027 ref.

Ijaz Hussain Batalvi, Senior Advocate Supreme Court and M. Latif Khan Khosa, Advocate Supreme Court for Appellants.

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

Sardar M. Ishaq Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for the Complainant.

Date of hearing: 10th May, 2001.

2002 S C M R 201

[Supreme Court of Pakistan]

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

SHUKAR DIN‑‑‑Petitioner

versus

ZAFAR HAYAT and others‑‑‑Respondents

Criminal Petition No.533‑L of 2000, decided on 9th January, 2001.

(On appeal from the order dated 5‑10‑2000 of the Lahore High Court; Lahore, passed in Criminal Miscellaneous No.5776/CB/2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Cancellation of bail‑‑‑Sessions Court after‑careful consideration of all the facts had allowed bail to the accused because in the counter‑case the accused named therein had also been allowed bail by him‑‑‑Discretion exercised by High Court was proper and did not warrant interference by Supreme Court‑‑‑Petition for cancellation of bail was, therefore, dismissed being without merit.

Rana Muhammad Arif, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Zahid Hussain Khan, Advocate Supreme Court and Faizur Rehman, Advocate‑on-Record for Respondents Nos. 1 to 7.

Muhammad Akhtar Awan, Additional Advocate‑General, Punjab for the State.

Date of hearing: 9th January, 2001.

2002 S C M R 203

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

ABDUL ALI ---Appellant

versus

Haji BISMILLAH---Respondent

Criminal Appeal No.356 and Criminal Petition No.81-Q of 1999, decided on 12th July, 2001.

(On appeal from the judgment dated 5-10-1999, of the Balochistan High Court, Quetta, passed in Criminal Appeal No.320 of 1998)

(a) Jurisdiction---

---- Objection about jurisdiction---Objection about jurisdiction or competency of a forum should be raised at the initial stage in order to avoid complication and inconvenience which may arise ultimately in the reversal of the entire process.

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

----S. 302(b)---Appraisal of evidence---Objection as to jurisdiction at appellate stage---Validity---Even if the High Court had no jurisdiction to hear the appeal, the accused could not be permitted to raise such an objection at late stage on account of the principle of estoppel which would operate against him because of his acquiescence or silence and particularly when otherwise the Trial Court and the High Court as such did not lack jurisdiction in the matter---Effort to nullify all the proceedings on account of some defect in the charge .which had not prejudiced the accused but had rather benefited him, could not succeed which merely proceeded on technicality and not to advance the ends of justice---High Court had brought on record in a legal way the evidence which existed on record but could not be exhibited and made admissible on account of negligence of the Trial' Court and, such exercise by High Court having advanced the cause of justice was not open to any exception---Delay in recording the statements of eye-witnesses under S. 161, Cr.P.C. was due to the negligence/lapse of the police officers who despite their availability had failed to record their statements---Charge against the accused of having effectively fired at the deceased had been proved by the consistent statements of all the eye-witnesses supported by the medical evidence as well as by the abscondence of accused for more than three years despite his knowledge about the case against him---Appeal of accused was dismissed in circumstances.

M.M. Gandhiu v. State of Mysore AIR 1960 Mys. 111; Nadir Shah v. The State 1980 SCMR 402; Shah Nawaz v. The State 1992 SCMR 1583; Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308 and Allah Din and 18 others v. The State and another 1994 SCMR 717 distinguished.

Nizam-ud-Din v. The State 1999 PCr.LJ 1761; Babulal Chaukhani v. King-Emperor AIR 1938 PC 130 and Abdul Zahir and another v. The State 2000 SCMR 406 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.544---Sentence, enhancement of---Discretion of Court---Discretion exercised by High Court in awarding lesser penalty of imprisonment for life to the accused could not be termed as perverse or arbitrary and the petition to the extent of enhancement of sentence from life imprisonment to death was accordingly dismissed---Provisions of S.544-A, Cr.P.C. being mandatory accused was directed to pay rupees one lac only to the legal heirs of the deceased or to suffer in default six months' R.I.

Abdul Karim Khan Kundi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

M.K.N. Kohli, Advocate-on-Record for the Complainant.

2002 S C M R 212

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ

FATEH MUHAMMAD‑‑‑Petitioner

versus

FATEH MUHAMMAD and others-‑‑Respondents

Civil Petition for Leave to Appeal No. 440‑L of 2000, decided on 24th November, 2000.

(On appeal from the judgment dated 28‑1‑2000 of the Lahore High Court passed in C.M. 1‑C/99 in C.R. No. 2447‑D/86).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision‑‑­Dismissal for non‑prosecution‑‑‑Petitioner filed application for restoration with considerable delay and the same was dismissed by High Court‑‑­Validity‑‑‑Petitioner did not mention any reason as to why he did not inquire about the fate of the case from his counsel for about six months after the last date of hearing‑‑‑Negligence on the part of the petitioner was established‑‑­Judgment/order passed by High Court did not suffer from any illegality‑‑­Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Date of hearing: 24th November, 2000.

2002 S C M R 213

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

Mst. MEHTAB‑‑‑Petitioner

versus

KHAIR MUHAMMAD alias BADAL and others‑‑‑Respondents

Criminal Petition No. 28‑Q of 2001, decided on 23rd July, 2001.

(On appeal from the judgment dated 15‑5‑2001 of the Balochistan High Court in Constitutional Petition No. 1048/1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 324‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.5(3) & 5‑A(9)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused had already suffered ordeal of trial and retrial of the case‑‑‑Case had been already decided and had attained finality and they could not be retried under the garb of fine technicalities of law‑‑‑Simultaneous trial of both the cases had not caused any prejudice whatsoever‑‑‑Special Court had rightly exercised its jurisdiction as conferred upon it under S.5(3) read with S.5‑A(9) of the Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑‑Findings of the two Courts below did not suffer from any legal infirmity or non‑consideration of any material piece of evidence and being unexceptionable hardly called for any interference‑‑‑Petition for leave to appeal was dismissed accordingly.

Noor Ellahi v. Ch. Ikramul Haq PLD 1966 SC 708 and Rifat Hayat v. Special Judge 1994 SCMR 2177 ref.

Amanullah Kamrani, Advocate Supreme Court and Mrs. Ashraf Abbas, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd July, 2001.

2002 S C M R 217

[Supreme Court of Pakistan]

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

MUHAMMAD JEHANGIR‑‑‑Petitioner

versus

BASHIR AHMAD and others‑‑‑Respondents

Criminal Petition No. 93‑L of 2000, decided on 22nd November, 2000.

(On appeal from the judgment, of the Lahore High Court (Bahawalpur Bench) passed in Criminal Appeal 36/98, Murder Reference 7 of 1998).

Penal Code (XLV of 4 860)‑‑-

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973); Art. 185(3)‑‑‑Acquittal of accused by High Court was based upon flimsy reasons and on such hypothesis which was not supported by the facts and circumstances of the case ‑‑‑F.I.R. was prompt and was lodged without any delay but the High Court observed that such promptness reflected upon the prosecution case as the daily diary must have been kept open by the police officials to wait for the first informant to lodge the report‑‑‑An independent witness who was a neighbour had been discredited without any rhyme or reason‑‑‑Acquittal of accused, prima facie, had caused miscarriage of justice‑‑‑Leave to appeal was consequently granted to the complainant by Supreme Court to re‑appraise the entire evidence in order to ensure the safe dispensation of criminal justice.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2000.

2002 S C M R 219

Present: Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

Dr. MUHAMMAD AYUB KHAN‑‑‑Appellant

versus

Haji NOOR MUHAMMAD ‑‑‑Respondent

Civil Appeal No. 252 of 1999, decided on 31st May, 2001.

(On appeal from the order dated 14‑12‑1998 passed by the Peshawar High Court, Circuit Bench, D.I. Khan, in Civil Revision No.85 of 1995).

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

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. l85(3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the High Court was not justified to have set aside the judgment of Lower Appellate Court in its revisional jurisdiction inasmuch as the pre‑emptor had failed to make Talb‑e-­Muwathibat in accordance with S.13(1) of North‑West Frontier Province Pre‑emption Act, 1987 and had also omitted to mention the making of such Talb in the notice sent by him to appellant.

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

‑‑‑‑S. 13(2)‑‑‑Right of pre‑emption, exercise of ‑‑‑Talb‑i‑Ishhad‑‑‑Object and scope‑‑‑After having performed Talb‑i‑Muwathibat, the pre‑emptor is required to confirm his intention to pre‑empt the property during process of making Talb‑i‑Ishhad by sending a written notice to the vendee in obedience of S.13(2) of North‑West Frontier Province Pre­ emption Act, 1987.

1995 SCMR 1510; 1998 SCMR 2227 and 1999 SCMR 2167 ref.

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

‑‑‑‑S. 13(2) & (3)‑‑‑Notice of Talb‑i‑Ishhad‑‑‑Format‑‑‑No format has been prescribed to issue the notice, as per requirement of S.13(2) & (3) of North­West Frontier Province Pre‑emption Act, 1987, therefore, from language employed therein inference has to be drawn to gather the intention of the pre­emptor.

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

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Requirement of mentioning Talb‑i‑Muwathibat in notice of Talb‑i‑Ishhad‑‑‑Pre‑emptor successfully established performance of both the Talbs by leading oral evidence‑‑‑Trial Court decreed the suit and the findings of Trial Court were affirmed by High Court in exercise of revisional jurisdiction‑‑‑Contention of the vendee was that the pre‑emptor failed to make any reference of Talb‑i‑Muwathibat in the notice issued in fulfilment of Talb‑i‑Ishhad‑‑‑Validity‑‑‑Personally apprising to vendee by pre‑emptor about his right of pre‑emption in suit‑land tantamounted to mentioning of Talb‑i‑Muwathibat and thus the fact that the pre‑emptor was also approached through Jirga clearly spelt out his intention of asserting his right of pre‑emption, thus, using such phrases in the notice issued to vendee under Ss :13(2) & 13(3) of North‑West Frontier Province Pre‑emption Act, 1987, was sufficient to hold that earlier performance of Talb‑i­Muwathibat was duly mentioned‑‑‑Where the pre‑emptor had performed both Talb‑i‑Muwathibat and Talb‑i‑Ishhad according to S.13(1) of North‑West Frontier Province Pre‑emption Act, 1987, Supreme Court refused to interfere with the judgment passed by High Court.

Muhammad Ramzan v. Lai Khan 1995 SCMR 1510; Mst. Shamim Akhtar v. Kh. Maqsood Ahmed and 3 others 1998 SCMR 2227; Sar Anjam v. Abdul Raziq 1999 SCMR 2167; 1992 SCMR 1886; PLD 1997 SC 366 and PLD 1997 SC 883 ref.

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

‑‑‑‑Ss. 13 & 32‑‑‑Pre‑emption suit ‑‑‑Talb‑i‑Muwathibat‑‑‑Making of such Talb after getting attested copy of the sale‑deed‑‑‑Contention of the vendee was that the suit be dismissed as Talb‑i‑Muwathibat was not immediately after gaining knowledge of the sale‑‑‑Validity‑‑‑Record did not indicate as to whether in terms of S.32 of North‑West Frontier Province Pre‑emption Act, 1987, the Sub‑Registrar in exercise of 'his duty had issued a notice to general public disclosing the factum of transaction of sale of suit‑land‑‑‑In absence of such information it would be too technical to non‑suit the pre­emptor that he had gained information about the sale of the suit‑land prior to obtaining copy of sale‑deed and after apprising him about the sale transaction he did not perform Talb‑i‑Muwathibat‑‑‑Supreme Court declined to extend any benefit to the vendee on such ground.

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

‑‑‑‑S. 13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.73‑‑‑Pre‑emption suit‑‑­Original notice of Talb‑i‑Ishhad‑‑‑Producing of such notice by vendee ‑‑­Effect‑‑‑Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes ‑‑‑Vendee could not raise objection to such document as the same was primary document.

Abdul Aziz Kundi, Advocate‑on‑Record for Appellant.

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Muhammad Zahoor Qureshi, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 31st May, 2001.

2002 S C M R 224

[Supreme Court of Pakistan]

Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

GUL BAHAR‑‑‑Petitioner

versus

GHULAM NABI and 5 others‑‑‑Respondents

Criminal Petition No.58‑K of 2000, decided on 27th November, 2000.

(On appeal from the judgment dated 29‑8‑2000 of the High Court of Sindh Bench at Sukkur passed in Cr. Acquittal Appeal No.D‑28 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417 (2‑A)‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal ‑‑‑­Appeal against acquittal by Trial Court had rightly been dismissed by High Court being time‑barred‑‑‑Ocular evidence was in glaring conflict with the contents of the F.I.R. and the improvement and the exaggeration made at the trial had made the entire prosecution case doubtful‑‑‑Confessional statement and the recoveries had also been disbelieved by the Trial Court on proper reasons‑‑‑Leave to appeal was refused by Supreme Court to complainant in circumstances.

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

Nemo for Respondents.

Date of hearing: 27th November, 2000.

2002 S C M R 226

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

MUHAMMAD NASIM ANWAR and others‑‑‑Petitioners

versus

ADDITIONAL DEPUTY COMMISSIONER, VEHARI and others‑‑‑Respondents

Civil Petition No.225 of 2001, decided on 7th June, 2001.

(On appeal from the judgment dated 20‑10‑2000 passed by the Lahore High Court, Multan Bench, in W. Ps. Nos. 7‑R/1987 and 31‑R/1991).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑

‑‑‑‑Sched. para. 24‑‑‑Cancellation of allotment‑‑‑Notice, requirement of‑‑­Notice of demand is necessary to be given in view of para. 24 of Sched. to Displaced Persons (Compensation and Rehabilitation) Act, 1958, before the order with regard to transfer of property is cancelled.

Amina v. Abdul Qadir and others 1984 SCMR 993 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑Sched., para.24‑‑‑Constitution of Pakistan :1973), Art. 185(3)‑‑­Cancellation of allotment‑‑‑Principle of estoppel ‑‑‑Applicability‑‑‑Deposit of sale price after 27 years‑‑‑Petitioners had deposited sale price in treasury when they filed Constitutional petition in High Court after the Settlement Authorities had cancelled the allotment for not depositing the dues‑‑‑Order of authorities was upheld by High Court‑‑‑Contention of the petitioners was that no notice of demand was issued to the predecessor‑in‑interest of the petitioners hence the cancellation of allotment was against the law‑‑­Validity‑‑‑Deposit of dues at the time of filing of Constitutional petition would not negate the admitted default with regard to non‑payment of sale price by the predecessor‑in‑interest of the petitioners‑‑‑Petitioners were estopped from pleading that they should have been allowed to pay sale price of property after 27 years by extending the period‑‑‑Settlement Authorities were justified in rejecting the request of the petitioners as they could not be allowed to take premium of their own indolence‑‑‑Where the finding of Settlement Authorities as affirmed by High Court was according to law or was not based on misreading or non‑reading of evidence on record, Supreme Court refused to take exception to the finding of fact in respect of service of demand notice‑‑‑Order passed by Settlement Authorities and affirmed by High Court being legal, proper, valid and based on cogent reasons, warranted no interference by Supreme Court---Leave to appel was refused.

Muhammad Ali v. Member, Board of Revenue and others 1981 SCMR 852; Zarina Rauf Butt and others v. Malik Aziz Ahmad and others PLD 1982 SC 272; Muhamtnad Afzal v. Muhammad Yusuf and others 1984 SCMR 296 and Ismail through his L.Rs. v. The Settlement Commissioner, Karachi and others 1991 SCMR 1036 ref.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th June, 2001.

2002 S C M R 233

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mina and Abdul Hameed Dogar, JJ

RAHAB‑‑‑Petitioner

versus

MUHAMMAD ISMAIL and 2 others‑‑‑Respondents

Criminal Petition No.98‑K and Jail Petition No.233 of 1999, decided on 29th November, 2001.

(On appeal from the judgment/order dated 28‑10‑1999 passed by High Court of Sindh, Larkana Bench, in Crl. J.A. No.(S) 26 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Appeal against acquittal‑‑‑Accused initially were not named in the F.I.R.‑‑‑None of the eye‑witnesses including the star witness, a resident of the locality, had ascribed any overt act to the accused which could establish their involvement‑‑‑Overt act ascribed by the eye‑witnesses was belied by the medical evidence‑‑‑Appellate Court had arrived at a just conclusion after having properly appreciated the evidence‑‑‑Leave to appeal was consequently refused by Supreme Court to the complainant against acquittal of accused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Accused had initially been nominated in the F.I.R.‑‑‑Eye‑witnesses including the injured ones had implicated the accused in the case by unanimously ascribing specific role to each of them‑‑‑Ample evidence was available on record to connect the accused with the occurrence‑‑‑Courts below had properly and legally assessed the evidence without misreading or non‑reading of the same‑‑‑No ground for interference with the impugned judgment was made out‑‑‑ Leave to appeal was refused to accused by Supreme Court accordingly.

Akhlaq Ahmad Siddiqui, Advocate Supreme Court for Petitioners.

Suleman Habibullah, Additional Advocate‑General, Sindh for the State

Date of hearing: 29th November, 2000.

2002 S C M R 235

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Javed Iqbal, JJ

MUHAMMAD MAL KHAN‑‑‑Appellant

versus

ALLAH YAR KHAN‑‑‑Respondent

Civil Appeal No.329 of 1999, decided on 16th June, 2001.

(On appeal from the judgment dated 30‑4‑1998 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No. 124/1) of 1998).

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

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether statement of pre‑emptor by itself would be sufficient to prove Talb‑i‑Muwathibat and that he would not be required to produce any other witness in that respect.

Abdul Ghias v. Syed Haji Taj Muhammad and 42 others PLD 1995 Quetta 1 ref.

(b) Precedent---

‑‑‑‑Application, of rule laid down in a judgment‑‑‑No inflexible rule can be laid down for application of a rule enunciated in a judgment to each and every case, as each case proceeds on its own diverse facts.

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

‑‑‑‑S. 13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.129(g)‑‑‑Pre‑emption suit‑‑­.Talb‑i‑Muwathibat‑‑‑Proof of‑‑‑Solitary statement of pre‑emptor ‑‑‑Failure to produce witness in whose presence Talb‑i‑Muwathibat was made ‑‑‑Effect‑‑­Pre‑emptor though had named a person in whose presence Talb‑i‑Muwathibat was made but that person was not produced as witness before the Trial Court‑‑‑Trial Court decreed the suit on the solitary statement of the pre­emptor regarding making of Talb‑i‑Muwathibat‑‑‑Appellate Court having found Talb‑i‑Muwathibat as not proved dismissed the suit and such finding of Appellate Court was affirmed by High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Legal presumption in the absence of any explanation by pre‑emptor as to why the witness was withheld from examining as his witness would be that in case the witness had been produced, his deposition must have been against the pre‑emptor ‑‑‑Supreme Court declined to interfere with concurrent conclusion reached by the Appellate Court and High Court.

Abdul Ghias v. Syed Haji Taj Muhammad and 42 others PLD 1995 Quetta 1 and Government of N.‑W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 distinguished.

Abdul Malik v. Muhammad Latif 1999 SCMR 717; Muhammad Gul v. Muhammad Afzal 1999 SCMR 724; Amir Jan and others v. Haji Ghulam Muhammad PLD 1997 SC 883; Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360; Rana Muhammad Tufail v. Munir Ahmed PLD 2001 SC 13 and Amir Jan and others v. Haji Ghulam Muhammad PLD 1997 SC 883 ref.

Raja Abdur Rahim Satti, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Qazi Muhammad Amin, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent.

Date of hearing: 29th March, 2001.

2002 S C M R 239

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwandas and Mian Muhammad Ajmal, JJ

Engineer BASHIR AHMED ‑‑‑Appellant

versus

SENIOR SUPERINTENDENT OF POLICE, ISLAMABD, and others‑‑‑Respondents

Criminal Appeal No.62 of 1998, decided on 15th March, 2001.

(On appeal from the order of Lahore High Court, Rawalpindi Bench, dated 16‑10‑1997 passed in I.C.A. No.38 of 1997).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.63‑‑‑Discharge of accused‑‑‑Application of mind by the Magistrate‑‑­Accused was discharged by Magistrate on the report of police which was signed by Superintendent of Police on 6‑5‑1996, whereas the same officer had already retired from service on 3‑5‑1996‑‑‑Civil suit between the parties was also pending adjudication and the accused in his written statement filed in Civil Court nine days prior to his discharge, mentioned the fact of his discharge from the criminal case‑‑‑Effect‑‑‑Request of police for cancellation of case was accepted by the Magistrate for consideration extraneous to legal proceedings without applying mind‑‑‑Order passed by the Magistrate was set aside and police was directed by Supreme Court to submit challan in the Trial Court.

Appellant in person.

M. Kowkab Iqbal, Advocate Supreme Court/Advocate‑on‑Record for Respondents Nos.4 and 5.

Mansoor Ahmed, Deputy Attorney‑General for Advocate‑General (on Court's Notice.

Habibullah, Ex‑S.H.O., Marghalla Police Station, Sh. Zubair, present S.H.O., Marghalla Police Station for Respondent No.2.

Date of hearing: 15th March, 2001.

2002 S C M R 241

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

JEHANGIR RUSTAM KAKALIA through Legal Heirs‑‑‑Petitioner

versus

Messrs HASHWANI SALES & SERVICES (PVT.) LIMITED‑‑‑Respondent

Civil Petitions for Leave to Appeal Nos. 127‑K, 128, 132 to 137 and 155 to 168‑K of 2001, decided on 25th May, 2001.

(On appeal from the judgment/order dated 15‑12‑2000, of the High Court of Sindh, Karachi, passed in F.R.As. Nos.748 to 760, 764 to 768, 772 to 777, 783 to 785 and 811 of 1983). .

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

‑‑‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art.23‑‑‑Bona fide personal need of landlord‑‑‑Imposing of restriction on landlord on use of his property‑‑‑Validity‑‑‑Landlord being owner of demised premises cannot be deprived of his rights and interest to use his property in a manner more suited to his requirements‑‑‑No unreasonable restriction can be placed on exercise of right by landlord which would offend the fundamental rights guaranteed under Art.23 of the Constitution.

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

‑‑‑‑S. 15(2)(vi)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Reconstruction‑‑‑Concurrent findings of facts by the Courts below‑‑­Satisfaction of Rent Controller‑‑‑Premises was required by landlord for reconstruction and its building plan had been approved‑‑‑Rent Controller as well as the high Court had recorded concurrent findings of fact after careful consideration of evidence adduced by both the parties‑‑‑Validity‑‑‑Where satisfaction of Rent Controller was borne out by the material available on record and findings of fact backed by satisfactory evidence recorded by him, High Court while concurring with the view taken by the Court of first instance did not appear to have suffered from misreading or non‑reading of evidence‑‑‑Judgment passed by High Court did not suffer from misconstruction of law or violation of statutory provisions governing the matter in issue‑‑‑Tenants failed to displace the conclusions drawn by both the Courts that the requirement of the premises by landlord was bona fide and reasonable, as no element of mala fides or dishonest motive could be spelled out from the evidence‑‑‑Supreme Court declined to interfere with ‑the ,judgments passed by the Courts below‑‑‑Leave to appeal was refused.

Attomal v. Allah Bux PLD 1985 Kar. 650; Abdul Ghaffar v. Gulrez Pasha 1989 CLC 260; A.G. Securities v. Vaughan and others PSCC 756; Bashir Hussain v. Muhammad Saeed PLJ 1977 Lah. 158; Hashwani Sales and Services Limited v. Karachi Building Control Authority and 15 others PLD 1986 Kar. 393; Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1; Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210; Abdul Aziz v. Muhammad Ashraf PLD 1993 Kar. 304 and Matloob v. Mst. Saeeda Khatoon 1988 SCMR 1575 distinguished.

Abdul Ghaffar‑Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.

R.F. Virjee, Advocate Supreme Court and Akblaq A. Siddiqui, Advocate‑on‑Record for Petitioner (in C.P. No. 127‑K of 2001).

M.G. Dastgir, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner (in C.P. No. 128‑K of 2001).

Abdul Latif A. Shakoor, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Petitioner (in C.Ps. Nos. 132 to 137‑K and 168‑K of 2001).

A. Aziz Khan, Advocate‑on‑Record for Petitioner (in C.P. No. 167‑K of 2001).

Naraindas C. Motiani for Petitioner (in C.Ps. Nos. 155‑K to 166‑K of 2001), Zaffar Hadi Shah, Senior Advocate Supreme Court, Rasheed A. Rizvi, Advocate Supreme Court and Nasir Hussain 1affery, Advocate‑on ­Record for Respondents.

Date of hearing: 25th May, 2001.

2002 S C M R 247

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MUHAMMAD SHAHID ---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.61-K of 2000, decided on 18th December, 2001.

(On appeal from the judgment dated 27-11-2000 passed in Criminal Bail Application No.1220 of 2000 of the High Court of Sindh, Karachi).

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

----S.497---Constitution of Pakistan (1973), Art. 185(3)---Bail---Accused immediately after his arrest had led to the recovery of huge quantity of the property of dacoity and thus, a prima facie case appeared to be against him to disentitle him to the concession of bail---Any opinion at bail stage to the effect that the accused had no knowledge about the property being stolen in a dacoity would amount to deeper appreciation of evidence which was not permissible under law---Leave to appeal was declined to the accused by Supreme Court in circumstances.

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

----SS.497/498---Bail---Assessment of evidence---Principle---Court seized of jurisdiction for examining the question of bail should make only tentative assessment of the facts without making detailed reference to the merits.

Ali Mukhtiar Naqvi, Advocate Supreme Court with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for the State.

18th December, 2000.

2002 S C M R 249

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

Mst. AISHA BIBI‑‑‑Petitioner

versus

Mst. PERMILA CLAMENCE and another‑‑‑Respondents

Criminal Petition No.449-L of 2001, heard on 17th July, 2001.

(On appeal from the order, dated 11‑6‑2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.839‑H of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑High Court by means of the impugned order passed in a habeas corpus petition directed the petitioner to be lodged in Darul Aman‑‑‑Contention was that the F.I.R. registered against the petitioner had been discharged and her liberty would be affected by lodging her in Darul Aman who was in advanced stage of pregnancy‑‑‑Leave to appeal was granted to the petitioner by Supreme Court in circumstances and the impugned order was suspended.

Shahid Hussain Kadri, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 17th July, 2001.

2002 S C M R 250

[Supreme Court of Pakistan]

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

MERCANTILE TRADERS (PVT.) LTD. and another‑‑‑Appellants

versus

STATE BANK OF PAKISTAN‑‑‑Respondent

Civil Appeals Nos.400‑K and 401‑K of 1990, decided on 8th March, 2001.

(On appeal from the judgment dated 14‑2‑1989 of Sindh High Court, dated 14‑2‑1989 in Civil Petitions Nos.D‑1054 of 1990 and 1055‑D

(a) Banking Companies Ordinance (LVH of 1962)‑‑‑

‑‑‑‑S.27(1)[as amended by Banking Companies (Amendment) Ordinance (LVI of 1979)]‑‑‑Licensing of banking companies‑‑‑Object‑,‑Object of S.27(1) of Banking Companies Ordinance, 1962, was to effectively check the growing trend of illegal banking business by various investment companies, which were defrauding the public by offering high rate of interest up to 5 to 7% per month.

(b) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss. 27(1) & 43‑B [as amended by Banking Companies (Amendment) Ordinance (LVI of 1979)]‑‑‑Constitution of Pakistan (193), Art.185(3)‑‑­Leave to appeal was granted by Supreme Court to consider, whether High Court had incorrectly interpreted the concept of banking business; whether it was a necessary condition that the business of banking must be transacted with members of the general public; whether the mere borrowing of money from family members could constitute banking business; whether principle of ejusdem generis was applicable in relation to the definition of 'banking'; whether the order of State Bank could have bees passed without giving any reasons; and whether the State Bank failed to note that ­discretion had been conferred on it under S.43‑B of Banking Companies Ordinance, 1962.

(c) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑S.5(b)(c)‑‑‑Term 'public'‑‑‑Connotation‑‑‑Members . of one family whether fall within the definition of 'public' as envisaged in.S.5(b)(c) of Banking Companies Ordinance, 1962‑‑‑Members of one family being indefinite would fall within the purview of public, irrespective of the fact that the deposits were obtained from a limited number of them‑‑‑Members of one family or pertaining to a community, besides being members, were 'public' within the meaning of S.5(b)(c) of Banking Companies Ordinance, 1962.

(d) Words and phrases‑‑‑

‑‑‑‑"Ejusdem generis"‑‑‑Connotation and applicability‑‑‑Pre‑conditions.

Doctrine of ejusdem generis would apply when the following conditions exist:‑‑

(1) The statute contains an enumeration by specific words;

(2) the members of the enumeration rorwitute a class;

(3) the class is not exhausted by the enumeration;

(4) a general term follows the enumeration; and

(5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

Doctrine of ejusdem generis is only a rule of construction and not of substantive law. It provides a mode of interpretation, which is always subject to the intention of the Act. It does not apply if the intention of the Act suggests to the contrary.

Black’s Law Dictionary, Fifth Edn., p. 464; Don Bosco High Sshool v. The Assistant Director E. O. B. I. And others PLD 1989 SC 128 and Jamat‑i‑Islami Pakistan through Syed Munawar Hassan, Secretary­ General v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs PLD 2000 SC 111 ref.

(e) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss 27(1) & 43‑B [as amended by Banking Companies (Amendment) Ordinance (LVI of 1979)]‑‑‑Banking business‑‑‑Publication of declaration under S.43‑B of Banking Companies Ordinance, 1962‑‑‑Contention of the appellants was that no business of banking was being carried out by them and the investments were only received from their family members and not from the public‑‑‑Authorities made necessary inquiries and found that the, appellants were transacting business of banking in contravention of S.27(1) of Banking Companies Ordinance, 1962‑‑‑Factum of holding of inquiry by the Authorities was not challenged either before Supreme Court or before the High Court‑‑‑Only information to be conveyed was that the appellants were transacting the business of banking in contravention of S.27(1) of Banking Companies Ordinance, 1962, which was done and so was mentioned in the declarations‑‑‑Statements of facts coupled with show‑cause notices were served upon the appellants, which comprehensively provided them to know about material quoted against them by the Authorities‑‑‑Effect‑‑‑Where full opportunity of personal hearing was afforded and the contention of the appellants was repelled by the High Court by assigning reasons which were unassailable, Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Appeal was dismissed.

Mohinder Sindh Gill and another v. The Chief Election Commissioner, New Delhi and others AIR 1978 SC 851; Syed Ali Abide Zaidi and others v. Deputy Settlement and Rehabilitation Commissioner, Gujranwala and others PLD 1967 Lah. 836 and Brigadier His Highness Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan through the Joint Secretary, Ministry of States and Frontier Regions, Rawlapindi and 23 others PLD 1978 Lah. 1166 ref.

Afsar Ali Abidi, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Appellants.

Ali Ahmed Fazeel, Advocate Supreme Court and M.S. Ghuary, Advocate‑on‑Record for Respondent.

Date of hearing: 8th March, 2001.

2002 S C M R 261

[Supreme Court of Pakistan]

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

KHADIM HUSSAIN ‑‑‑Appellant

versus

MANZOOR HUSSAIN SHAH and 3 others‑‑‑Respondents

Criminal Appeal No. 43 of 1998, decided on 5th October, 2001.

(On appeal from judgment of Lahore High Court dated 21‑7‑1997 passed in Crl. As. Nos. 52 and 52‑A of 1995).

(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 consider whether evidence on record had been properly appraised by the High Court in conformity with the well‑established principles laid down by the Supreme Court in the context of the contention that in an occurrence which took place in broad daylight and was witnessed by those who were not inimically disposed towards the accused, their acquittal from the murder charge could not be justified on minor and immaterial contradictions.

(b) Criminal. Procedure Code (V of 1898)‑‑‑

‑‑‑S. 417‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal against acquittal‑‑‑Guidelines‑‑‑Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible‑‑‑If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusions and that too with a view only to avoid grave miscarriage of justice and for no other purpose‑‑‑Important test visualised in such cases in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11; Muhammad Iqbal v. Sanaullah PLD 1997 SC 569; State v. Farman Hussain PLD 1995 SC 1; Ahmad v. Crown PLD 1951 FC 107; Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426 and State v. Bashir PLD 1997 SC 408 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal against acquittal‑‑‑Witnesses were inimically disposed towards the accused and had a motive against them for false implication‑‑‑Manner of recovery of crime weapon was totally unreliable‑‑‑View taken by High Court could neither be declared illegal nor could be upset in an appeal from acquittal‑‑‑Judgment rendered by High Court did not suffer from any error of law or jurisdiction, and the conclusion drawn by it was neither contrary to the evidence on record nor against the settled norms laid down by the superior Courts‑‑‑Appeal against acquittal was dismissed by Supreme Court accordingly.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Muhammad Iqbal v Sanaullah PLD 1997 SC 569; State v. Farman Hussain PLD 1995 SC t ‑ Ahmad v. Crown PLD 1951 FC 107; Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426; State v. Bashir PLD 1997 SC 408; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Shahzado v. State PLD 1977 SC 413 and Farmanullah v. Qadeem Khan 2001 SCMR 1474 ref.

Mian Aftab Farrukh, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellant.

Sh. Khizar Hayat, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Malik Ainul Haq, Advocate Supreme Court for the State.

Dates of hearing: 25th, 26th and 27th September, 2001.

2002 S C M R 269

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, .IJ

IHTSHAMUDDIN ‑‑‑ Appellant

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 65 to 67 of 2001, decided on 31st October, 2001

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 5‑1‑2000, passed in Criminal Appeal No. 148 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to reappraise the evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal of accused by High Court ‑‑‑F.I.R. had been lodged very promptly‑‑‑Specific role of effective firing by repeater gun at the deceased was attributed to accused‑‑‑Incident was of day time‑‑‑Ocular evidence was natural, convincing, trustworthy and reliable and was supported by medical evidence‑‑‑Prosecution witnesses had no ill‑will, malice or enmity against the accused for his false implication in the case‑‑‑Acquittal of accused by High Court had caused miscarriage of justice and was not sustainable‑‑‑Impugned judgment qua the acquittal of accused based on conjectures and surmises was consequently set aside and his conviction under S.302, P.P.C. and sentence of imprisonment for life with fine awarded by Trial Court were restored.

Zultiqar Ahmad Bhatti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 65 of 2001).

Abdur Rahim Kazi, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Respondents Nos. 2 and 3.

Nemo for the State.

Date of hearing: 31st October, 2001

2002 S C M R 273

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

$HADI KHAN‑‑‑Petitioner

versus

THE STATE through Advocate‑General of Balochistan, Quetta ‑‑‑Respondent

Criminal Petition No.40‑Q of 2001, decided on 5th November, 2001

(On appeal from the judgment/order dated 16‑7‑2001 passed by High Court of Balochistan, Quetta, in Cr. Appeal No. 26 & J.A. 9 & 10/2001).

Control of Narcotic Substances Act (XXV of 1997)‑‑‑

‑‑‑‑S. 9(a)(b)(c)‑‑‑Customs Act (IV of 1969), S.156(1)(8) ‑‑‑ Criminal Procedure Code (V of 1898), S.403‑‑‑Constitution of Pakistan (1973), Arts.13(a) & 185(3)‑‑‑Leave to appeal was granted by Supreme Court in the case to examine whether the offence under S.156(1)(8) of the Customs Act, 1969 and the offences under S.9(a)(b)(c) of the Control of Narcotic Substances Act, 1997 were same offences and if an accused was convicted and sentenced under any of the provisions out of both these laws, his trial/conviction/sentence under the other law would be a bar in view of the provisions of Art. 13(a) of the Constitution and S.403, Cr.P.C.

State through Collector of Customs v. Naseem Amin Butt and others 2001 SCMR 1083; Hoot Khan v. Industrial Relations Commission PLD 1977 Kar. 144; Muhammad Ashraf and others v. The State 1995 SCMR 626 and The State v. Anwar Khattak and others PLD 1990 FSC 62 ref.

Salahuddin Mangel, Advocate Supreme Court and Mrs. Ashraf Abbas, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 5th November, 2001.

2002 S C M R 280

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwandas and Tanvir Ahmed Khan, JJ

HAMID ULLAH KHAN---Petitioner

versus

MUHAMMAD ZAMAN and 3 others---Respondents

Criminal Petition No.445-L and Jail Petition No.204 of 1999, decided on 23rd April, 2001.

(On appeal from the judgment/order dated 9-6-1999 passed by Lahore High Court, Lahore in Criminal Appeal No. 1344 of 1994 and M. R. 146/94).

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

----Ss. 302/34 & 337-E(c)---Constitution of Pakistan (1973), Art. 185(3)--­High Court had rightly altered the sentence of death of one accused to imprisonment for life in view of the suppression of injury to a lady from accused side by the prosecution---Reasons advanced by High Court regarding the decision taken about the other two co-accused were also cogent and were not open to any exception---Leave to appeal was refused to the complainant by Supreme Court accordingly.

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

----S.302/34---Constitution of Pakistan (1973), Art. 185(3)---Jail petition filed by accused was barred by 96 days---Even otherwise, ample evidence was present on record which connected the accused with the alleged occurrence---Ocular account had rightly been relied upon by the Courts below---Leave to appeal was declined to the accused by the Supreme Court in circumstances.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in Criminal Petition No. 445-L of 1999).

Rab Nawaz Khan Niazi, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record for Respondent (in Criminal Petition No. 445-L of 1999).

Nemo for the State (in J. P. No. 204 of 1999).

Date of hearing: 23rd April, 2001.

2002 S C M R 282

[Supreme Court of Pakistan]

Present: Muhammad BashirJehangiri, Actg. C.J., Munir A. Sheikh and Rana Bhagwandas, JJ

MUHAMMAD SAEED MEHDI‑‑‑Petitioner

versus

THE STATE and 2 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2487 of 2001, deeded on 2nd October, 2001.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 15‑8‑2001 passed in W.P. No. 1675/2001).

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

‑‑‑‑Preamble & S.16‑‑‑Object of the Ordinance as contained in its preamble is to provide expeditious trial of scheduled offences within shortest possible time, which position is re‑assured in S.16 of the said Ordinance postulating day to day trial of the case and its conclusion within thirty days.

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

‑‑‑‑S. 9(b) [as amended] read with Preamble, Ss. 9(a)(iii)(iv) & 16‑‑­Constitution of Pakistan (1973), Arts. 199 & 185(3)‑‑‑Post‑arrest bail, grant of‑‑‑Corruption and corrupt practices‑‑‑Petitioner prima facie did not appear to be guilty of misuse of official position or misappropriation of public funds to his own use or any relatives or friends‑‑‑Prosecution did not allege that amount sanctioned was not actually spent on the works for which it was approved‑‑‑Truth or otherwise of such allegations could only be determined at the trial after analysis of evidence that might be adduced by the parties‑‑­Trial had not yet commenced for no fault attributable to the petitioner‑‑­Object of National Accountability Bureau Ordinance, 1999 as contained in its preamble provided for expeditious trial of scheduled offences within shortest possible time as re‑assured in S.16 of the Ordinance postulating day to day trial of case and its conclusion within thirty days‑‑‑Such object did not seen: to be near its achievement in such circumstances‑‑‑Petitioner required immediate treatment, hospitalization and close monitoring by Medical Specialists in a well‑equipped hospital, which object could not be achieved by detaining him in jail indefinitely or referring him to a hospital for a limited time‑‑‑Grant of bail on medical ground was not opposed by prosecution‑‑‑Petitioner had made out a case for grant of bail, which could not be‑ withheld by way of punishment‑‑‑Supreme Court converted the petition into appeal and accepted the same by way of granting bail to petitioner.

Mian Manzoor Ahmad Wattoo v. State 2000 SCMR 107 ref.

(c) National Accountability Bureau Ordinance (XVIH of 1999)‑‑‑

‑‑‑‑S. 9(b) [as amended]‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Grant of bail‑‑‑Jurisdiction of Supreme Court to grant bail in appropriate cases was not barred even by unamended provisions of S.9(b) of National Accountability Bureau Ordinance, 1999.

Shahida Faisal v. Federation of Pakistan 2001 SCMR 294 and Anwar Saifullah Khan v. State 2001 SCMR 1040 ref.

(d) National Accountability Bureau Ordinance (XVIH of 1999)‑‑‑

‑‑‑‑S.9(b) [as amended]‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Post‑arrest bail, grant of‑‑‑Ouster of jurisdiction of High Court to grant bail in scheduled offences had been done away with by amendment in S.9(b) of National Accountability Bureau Ordinance, 1999, omitting the words "High Court"‑‑‑Even under unamended provisions of S. 9(b) of the Ordinance, High Court had jurisdiction under Art. 199 of the Constitution to grant bail in an offence under the Ordinance in appropriate case as the bar of jurisdiction thereunder being in the nature of legislative enactment could not take away its jurisdiction under Art. 199 of the Constitution.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Anwar Saifullah Khan v. State PLD 2000 Lah. 564; Syed Ghous Ali Shah's case C.P.No. 1312 of 2001 and Asif Baig's case C.P. No.D‑1283 of 2001 ref.

(e) Criminal trial‑‑‑

‑‑‑‑Object‑‑‑Object of criminal trial is to make the accused face the trial and not punish an undertrial prisoner for the offence alleged against him‑‑‑Basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars.

(f) Criminal trial‑‑‑

‑‑‑‑ Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay.

(g) Bail‑‑

‑‑‑‑ Bail cannot be withheld as punishment on accusation of non‑bailable offences against an accused.

(h) Maxim‑‑‑

Ubi jus ibi remedium (where there is a right there is a remedy)‑‑­Applicability‑‑‑Constitution of Pakistan (1973), Art. 199.

Wasim Sajjad, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.

Abdul Baseer Qureshi, Advocate Supreme Court/Dy. Prosecutor­ General, NAB for Respondent/NAB.

Date of hearing: 2nd October, 2001.

2002 S C M R 290

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Hamid Ali Mirza, JJ

SANA ULLAH BHUTTA‑‑‑Appellant

versus

DEPUTY SETTLEMENT COMMISSIONER and others‑‑‑Respondents

Civil Appeal No.715 of 1998, decided on 23rd October, 2001.

(On appeal from the judgment/order dated 2‑4‑1997 passed by Lahore High Court, Lahore in ICA No.67 of 1997).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-‑‑

‑‑‑‑Preamble‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Order passed by Authority notified under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was neither appealable nor revisable, thus, Intra‑Court appeal against such order pertaining to evacuee property would be competent particularly after repeal of evacuee laws.

Mst. Wazir Begum and others v. Member Board of Revenue/Chief Settlement Commissioner and others 2000 SCMR 989 ref.

A. R. Shaukat, Senior Advocate Supreme Court Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellant.

Sh. Anwarull Haque, Advocate Supreme Court and Muhammad Aslam Ch., Advocate‑on‑Record (absent) for Respondent No.3.

Date of hearing: 10th October, 2001.

2002 S C M R 293

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

Messrs UNITED INDUSTRIES LTD.‑‑‑Petitioner

versus

MARKET COMMITTEE, FAISALABAD‑‑‑Respondent

Civil Petition No.441‑L of 2000, decided on 17th July, 2001.

(On appeal from the judgment dated 12‑1‑2000 of the Lahore High Court, Lahore, passed in Writ Petition No.21231 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 185 (3)‑‑‑Petition for leave to appeal‑‑‑Factual controversy‑‑‑Supreme Court disposed of the petition with observations that it would be appropriate if in the first instance, controversy between the parties is decided by concerned Authority, and then the petitioner, if so advised, can avail of further remedy under relevant provisions of law.

Ashtar Ausaf Ali, Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioner.

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

Date of hearing 17th July, 2001.

2002 S C M R 294

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

IJAZ alias BILLA and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 377 of 2000, decided on 6th November, 2001.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 20‑3‑2000, passed in Criminal Appeals Nos.523 and 795 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/149 & 148‑‑‑Appraisal of evidence‑‑‑F.I.R. was promptly registered‑‑‑Crime empties secured from the place of occurrence had matched with the fire‑arm recovered at the pointation of accused‑‑‑Ocular account had been furnished by the brother of the deceased and another eye‑witness who was quite independent and natural witness having no ill‑will, malice or enmity against the accused‑‑‑Medical evidence was in consonance with ocular testimony‑‑‑Recovery of weapon of offence at the instance of accused which was in his exclusive knowledge had been proved through reliable evidence‑‑­Accused duly armed with lethal weapons had come in the shopping centre with the sole intention to kill the deceased‑‑‑Cold‑blooded, callous and premeditated murder had been proved by the prosecution with reliable and trustworthy ocular account which was corroborated by medical as well as circumstantial evidence‑‑‑Accused by causing the death of the deceased in a busy shopping centre had caused terror and insecurity in the minds of the people of the locality‑‑‑No strong mitigating circumstance for lesser sentence could be gathered from the evidence available on record‑‑‑Appeal was dismissed accordingly.

Allah Dad and another v. The State 1995 SCMR 142; Saeed and others v. The State 1984 SCMR 1069; Muhammad Khan v. The State 1996 PCr.LJ 1767; Riaz Masih v. State 1995 SCMR 1730; Ahmad Khan v. The State 1998 PCr.LJ 1192; State v. Salim Khan 1998 PCr.LJ 1636; Zafar and another v. The State 1999 SCMR 2028 and Muhammad Shafiq v. The State 2001 SCMR 1328 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Where a case is proved against the culprit beyond reasonable shadow of doubt and offence under S.302, P.P.C. is established, the normal penalty of death should be awarded and leniency in any case should not be shown, except where strong mitigating circumstances for lesser sentence could be gathered from the evidence available on record.

Mirza Masoodur Rehman, Advocate Supreme Court for Appellants Nos. 1 to 3.

Zahid Hussain, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellant No.4.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Ch. M. Akram, Advocate‑on‑Record (absent) for the Complainant.

Ch. Ghulam Ahmad, Advocate Supreme Court for the State.

Dates of hearing: 5th and 6th November, 2001

2002 S C M R 300

[Supreme Court of Pakistan]

.Present: Munir A. Sheikh and Hamid Ali Mirza, JJ

Mrs. IRENE WAHAB---Petitioner

versus

LAHORE DIOCESAN TRUST ASSOCIATION---Respondent

Civil Petition for Leave to Appeal No. 366-L of 2001, decided on 15th May, 2001.

(On appeal from judgment dated 24-1-2001 of the Lahore High Court, Multan Bench, Multan passed in R.F.A. No. 72 of 1992).

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

----S. 11, R.2---Bar of suit---Subsequent suit under O.II, R.2, C.P.C. would be barred only if in a previous suit, a relief which was available in relation to cause of action stated in said suit, but was not claimed.

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

----S. 11---Res judicata, principles of---Applicability---Dismissal of previous suit for non-prosecution---Question of res judicata would not arise in a case, where previous suit was dismissed for non-prosecution---Section 11, C.P.C. would be applicable only if previous suit had been decided on merits regarding same issues, which were directly and substantially in issue in the subsequent suit.

(c) Adverse possession---

---- Permissive possession would continue to be permissive and could not be treated as hostile merely by afflux of time to the knowledge of the owner.

(d) Adverse possession---

---- Proof of---To claim ownership on basis of adverse possession, one has to prove the point of time from which it had become adverse and as to how hostile title was claimed to the knowledge of the owner.

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

----S.11 & OII, R.2---Constitution of Pakistan (1973), Art.185(3)---Res judicata, principles of---Applicability---Scope---Plaintiff filed suit for possession of property, which was resisted by defendant on pleas of adverse possession, being barred by res judicata and OJI, R.2, C.P.C.---Defendant also claimed compensation for raising construction over the property and making improvements---Trial Court decreed the suit, which was upheld in appeal---Validity---Previous suit was not filed on the basis of same cause of action, which was dismissed for non-prosecution---As to amount spent on construction and improvements, except statement of defendant, no other evidence was led---Defendant could not prove plea of adverse possession as required under law---Findings of Courts below did not suffer from any illegality such as misreading or non-reading of any material piece of evidence and as regard res judicata and applicability of 0.11, R.2, C.P.C.---Supreme Court refused to grant leave to appeal.

Shahid Hussain Kadri, Advocate Supreme Court for Petitioner.

Date of hearing: 15th May, 2001.

2002 S C M R 303

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

Rana SHAHBAZ AHMED and 2 others‑‑-Appellants

versus

TESTATE‑‑‑Respondent

Criminal Appeal No. 122 of 2001, decided on 29th October, 2001.

(On appeal from the judgment of the High Court of Sindh, at Karachi, dated 27‑1‑2000, passed in Special A.T. Appeal No. 15 of 1998 and Confirmation Case No.3 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)‑‑‑Ocular testimony was natural, reliable, satisfactory and confidence inspiring‑‑‑Statement of the victim girl was supported by other three eye‑witnesses who were inmates of the house where the offence was committed as well as by the "Chaddar" secured by the Investigating Officer which was found to be stained with semen and blood by the Chemical Examiner‑‑‑No enmity, ill‑will or malice was alleged by the defence against the prosecution witnesses‑‑‑Courts below had properly analysed, assessed and examined the evidence without misreading or non‑reading the same‑‑­Accused on account of their brutal act did not deserve any leniency‑‑‑Appeal of accused was dismissed accordingly.

Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 ref.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Appreciation of evidence‑‑‑Statement of victim‑‑‑Sole testimony of the victim is enough for conviction if it is truthful and inspires confidence.

Mst. Nasreen v. Fayyaz Khan and another PLD 1991. SC 412 ref.

S. Rafaqat Hussain Shah, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record (absent) for Appellant No. 1.

Kh. Naveed Ahmed, Advocate Supreme Court for Appellants Nos.2 and 3.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 29th October, 2001.

2002 S C M R 307

[Supreme Court of Pakistan]

Present: Mamoon Kazi, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD HASHIM and others‑‑‑Petitioners

versus

GOVERNMENT OF SINDH through Secretary, Local Government and Rural Development, Karachi and others‑‑‑Respondents

Civil Petitions Nos.748 and 764 of 1998, decided on 8th June, 1999

(On appeal from the judgment of the High Court of Sindh, dated 28‑10‑1998 passed in Civil Petition No.523 of 1996).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Specific performance of contract‑‑‑Period of validity of the contract to collect the octroi having already expired, the. petitioner/ contractor was not entitled to specific performance of contract, though he had the right to seek any other appropriate remedy available to him under the law.

Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th June, 1999.

2002 S C M R 308

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

MUHAMMAD ASHFAQ and others‑‑‑Petitioners

versus

THE STATE and others‑‑‑Respondents

Criminal Petitions Nos.94‑L and 104‑L of 2001, decided on 1st November, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 22‑11‑2001, passed in Criminal Appeals Nos.951 and 919 of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.395/396/149/148‑‑‑Anti‑Terrorism Act (XXVIII of 1997), S.7‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Prosecution witnesses had the advantage of light emitting from the beams of two cars in which the accused could have been easily identified‑‑‑Identification parade had been properly held after taking all the necessary precautions and observing due formalities and the same did not suffer from any defect‑‑‑Prosecution version was supported by the positive reports of the Chemical Examiners, Serologist and Forensic Science Laboratory‑‑‑Ocular version was also corroborated by circumstantial evidence‑‑‑High Court after considering all aspects of the case and pleas raised by the defence had convicted the accused‑‑‑Impugned judgment was well‑reasoned and was based on the principles laid down by Supreme Court for safe administration of criminal justice‑‑‑Leave to appeal was refused in circumstances.

Rafique Ahmad Bajwa, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Petitioners (in Cr.P. 94‑L of 2001).

Syed Ehtasham Qadir Shah, Advocate Supreme Court and Mehmudul Islam, Advocate‑on‑Record (absent) for Petitioner (in Cr.P. No. 104‑L of 2001).

Date of hearing: 1st November 2001.

2002 S C M R 312

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

ZAMAN CEMENT COMPANY (PVT.) LTD. ---Appellant

versus

CENTRAL BOARD OF REVENUE and others---Respondents

Civil Appeal No.534 of 1998, decided on 26th September, 2001.

(On appeal from the judgment, dated 9-1-1997 passed by Lahore High Court, Lahore, in Writ Petition No. 16071 of 1996).

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

----S.31-A---Constitution of Pakistan (1973), Art.185(3)---Doctrine of legitimate expectation---Invocation---Leave to appeal was granted by Supreme Court to consider, whether the cases fell outside the scope of S.31-A of Customs Act, 1969 by invocation of doctrine of legitimate expectation.

Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan (Ministry of Finance), Islamabad 1994 SCMR 2123 ref.

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

----S.31-A---Constitution of Pakistan (1973), Arts.2A & 25---Section 31-A of the Customs Act is neither violative of Arts. 2A & 25 of the Constitution nor against the judicial pronouncements.

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

----31-A---S.R.0. No.484(1)/92, dated 14-5-1992---S.R.O. No.978(1)/95v dated 4-10-1995---Constitution of Pakistan (1973), Art.185(3)---Exemption---Doctrine of legitimate expectation ---Invocation--­Contract for import of machinery was executed when S.R.O. No.484(1)/92, dated 14-5-199,2 was in force, which was subsequently withdrawn by' virtue of S.R.O. No.978(1)/95, dated 4-10-1995---Petitioner claimed that notwithstanding the later notification, it was entitled to release of imported machinery under S.R.O. No.484(1) of 1992---High Court dismissed the Constitutional petition---Validity ---S.R.O:No.484(1)/92, dated 14-5-1992 was free from any ambiguity, absurdity or condition, wherein it was categorically specified that concessionary period would commence w.e.f. 1-2-1990 and expire on 30-6-1995---Bill of lading dated 29-8-1996 and opening of Letter of Credit on 13-9-1995 were indicative of the fact that at that time, S.R.O. No.484(1)/92 dated 14-5-1992 was not in force, thus, no exemption could be claimed thereunder after expiry of specified period nor did the question of legitimate expectancy arise in circumstances---Customs duty/sales tax under S.31-A of Customs Act, 1969, was to be deposited irrespective of date of execution of contract or opening of letter of credit--­Section 3l-A was given retrospective effect and made applicable to cases where exemption was withdrawn after its insertion---No vested right whatsoever having accrued to the petitioner, question of its infringement did not arise---Petitioner instead of availing 25% exemption on customs duty and sales tax available under subsequent S.R.O. No.978(1)/95. dated 4-10-1995 rushed towards Courts pressing into service the principles of legitimate expectation, promissory estoppel and locus poenitentiae which had no bearing on controversy involved and could not override the provisions of S.31-A of Customs Act, 1969---Impugned judgment was in accordance with settled norms of justice and being well reasoned did not call for any interference by Supreme Court---Appeal being devoid of merit was dismissed.

Gatron Industries Ltd., v. Government of. Pakistan 1999 SCMR 1072 and M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan .1998 SCMR 1404 ref.

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

----Art.25---Taxation---Validity---Legislature and other Taxing Authorities have power to classify persons or properties into categories and subject them to different rates of taxes, but there exists no power to target incidence of tax in such a way that similarly placed persons be dealt with not only dissimilarly, but discriminatingly.

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 ref.

(e) Vires of a statutes---

---- Challenge to---Function of judiciary is not to legislate or question the wisdom of Legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision, provided the law is competently made ---Vires of law can only be challenged being violative of any provision of the Constitution, but not on the ground that it nullifies the judgment of superior Court.

PLD 1989 Kar. 361 ref

(f) General Clauses Act (X of 1897)---

----S.21---Vested right---Such right cannot be taken away except by express words and necessary intendment ---Vested right, if conferred through statute, can be taken away only by legislative enactment and not by an executive authority through notification in exercise of either rule-making power or powers conferred under S.21 of General Clauses Act, 1897.

Collector of Customs v. Flying Kraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709; Collector of Central Excise and Land Customs v. Azizuddin Industries (Pvt.) PLD 1970 SC 439 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government _ of Pakistan 1998 SCMR 1404 and Gatron (Industries) Ltd. v. Government of Pakistan 1999 SCMR 1072 ref.

(g) Interpretation of statutes---

----Notification---Power of Government to grant by a notification exemption from provisions of an Act with retrospective effect has to be seen from the provisions of the Act itself and not of the notification---Recital of wrong source of power in opening part of notification would not affect validity of amendments made thereby---Expression or words in a notification must be read as such and not in any other way, unless the context requires that the latter course should be followed.

Understanding Statutes, Canons of Construction, 1st Edn. 1997, pp.786-787 by S.M. Zafar ref.

(h) Interpretation of statutes---

----Notification---Interpretation of notification when required

Interpretation of a notification is required when there is some ambiguity in the language employed therein or some ambiguity is apparent as certain words used therein are subject to different interpretation or where language is found contradictory with the statute or against the object and reasoning or logic or where it is violative or derogatory of any provision pf the statute or issue by some incompetent authority. "Canons of construction and rules of interpretation are directed to one and only one end, namely, towards finding out the intention of the Legislature".

Mozaffar Ahmad v. Anwar Ali PLD 1965 Dacca 296, PLR 1964 Dacca 906 and 16 DLR 336 ref.

(i) Interpretation of documents---

---- Mercantile contract---Interpretation---Principles---Technical artificial rule of law is seldom brought to bear on the construction of the mercantile contracts; the question really is the meaning of the language, and the grammatical meaning is the meaning to be adopted, unless there be reason to the contrary.

M'Connel v. Murphy (1873) LR 5 PC 203, 218 and Southwell v. Bowditch (1876) 1 CPD 374, 376 ref.

(j) Interpretation of statutes---

Object--Purpose of interpretation of statutory provision is to ascertain the true intention of the Legislature, which has to be gathered from the words used by the Legislature itself---Clear and unmistakable words cannot be given any meaning other than that which they carry in their ordinary grammatical sense---Courts are not concerned with the consequences of interpretation however drastic or inconvenient those may be, for the functions of the Court is interpretation and not legislation.

Muhammad Ismail v. State PLD 1969 SC 241 ref.

(k) Interpretation of statutes---

----Rules of interpretation and canons of construction do not create any new law, rather they provide the means to understand the law and give correct meaning to it.

Abdul Kader v. Election Tribunal PLD 1966 Dacca 277 ref.

(l) Interpretation of statutes---

---- Fiscal legislation---Guiding principle of interpretation stated.

(m) Vires of legislation---

---- Factors determining vires and purpose(s) of notification.

While interpreting a notification "the purpose or purposes for which a notification is issued would be relevant in determining the vires of a notification. One of the practical and effective ways of proliferating the purpose is to see how far the suggested meaning destroys and defeats or promotes the ultimate purpose. In this research the Court is not confined to the literal meaning of the words used in the notification but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the notification in question".

Bindra's Interpretation of Statutes, 7th Edn., p.833 ref.

(n) Vested right---

---- Such right is free from contingencies, but not in the sense that it can be exercised anywhere and at any moment, nor there is hardly any right which can be so exercised---Occasions and circumstances do not constitute contingencies but_are the peculiar characteristics of those rights.

Interpretation of Statutes by M. Faran, 1977 Edn., p.280 ref.

(o) Words and phrases---

---- Terms "vested right" and "assertion" are not interchangeable or synonymous.

Gatron industries Ltd. v. Government of Pakistan 1999 SCMR 1072 ref.

(p) Notification---

---- Lapse of wrong mentioning or non-quoting of notification can be cured and rectified by the Court.

Irfan Qadir, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

A. Karim Malik, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 26th September, 2001.

2002 S C M R 326

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Namid Ali Mirza, JJ

Mst. BASWAR SULTAN‑‑‑Appellant

versus

Mst. ADEEBA ALVI‑‑‑Respondent

Civil Appeal No. 584 of 2000, decided on 11th October, 2001.

(On appeal from the judgment dated 29‑3‑2000 passed by the Peshawar High Court, Peshawar in Civil Revision No. 23 of 1997).

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

‑‑‑‑S. 12‑‑‑Constitution of Pakistan (1973), Art.185Q)‑‑‑Suit for specific performance of agreement to sell‑‑‑Supreme Court, in view of respondent's admission made in her original written statement and statement in Court about execution of agreement to sell and signatures of marginal witnesses thereon, granted leave to appeal to consider, whether appellate and revisional Court were legally justified to hold that deed had not been proved because of non‑entry of number of Identity Cards of its executant and marginal witnesses; that whether respondent could be allowed to plead a case different from the one as stated in her original written statement; and that whether oral evidence could be led or could be considered as against the contents of deed.

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

‑‑‑‑S. 12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 103 & 113‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for specific performance of agreement to sell‑‑‑Respondent admitted the execution of agreements in her first written statement and in her cross‑examination; but she subsequently in amended written statement took the plea that agreements were fictitious, forged and fraudulent‑‑‑Trial Court decreed the suit, but was set aside by Appellate and Revisional Court‑‑‑Validity‑‑‑Admission made by respondent in her first written statement would be binding on her under Art.113 of Qanun‑e-­Shahadat, 1984‑‑‑Such admission stood corroborated by, her own further statement made in cross‑examination with regard to due execution of agreements and passing of consideration, besides overwhelming oral and documentary evidence of appellant and her marginal witnesses‑‑‑Subsequent denial of execution of agreements and receipt of amounts stated therein, and non‑mentioning of Identity Cards of respondent and marginal witnesses in the agreements would not make them doubtful‑‑‑Respondent could not be allowed to lead oral agreement or make statement to contradict, vary, add or subtract the terms of agreements, which were reduced into writing under Art.103 of Qanun‑e‑Shahadat 1984‑‑‑Inconsistent conduct and denial of admitted facts by respondent proved that she had not come to Court with clean hands‑‑‑Supreme Court allowed the appeal and set aside the impugned judgments and decrees and restored that passed by the Trial Court.

Muhammad Zahoor v. Lal Muhammad and others 1988 SCMR 322 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 103‑‑‑Exclusion of evidence of oral agreement‑‑‑Party cannot be permitted to adduce oral agreement or statement to contradict or vary the terms of proved agreement executed by him.

Sh. Wazir Muhammad, Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑on‑Record for Appellant.

M. Ismail Qureshi. Advocate‑on‑Record for Respondent.

Date of hearing: 11th October, 2001.

2002 S C M R 333

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Mst. FEHMIDA ALAM‑‑‑Petitioner

versus

Mst. ZAIBUN NISA SHAIKH and 6 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2‑K of 2000, decided on 8th March 2001.

(On appeal from the order of High Court of Sindh, Karachi, dated 23‑10‑2000 passed in F.R.A. No.279 of 1999).

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

‑‑‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlord‑‑‑Running of school in tenanted premises‑‑­Ejectment order passed by Rent Controller was upheld by Appellate Court‑‑­Findings of fact recorded by Courts below did not suffer from misreading of evidence or misconstruction of law justifying interference by Supreme Court‑‑‑Leave to appeal was refused in circumstances, however, time already allowed by Rent Controller for vacating premises was extended subject to payment of usual rent.

Shafat Hussain, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner.

Ali Akbar, Advocate‑on‑Record for Respondents.

Date of hearing: 8th March, 2001.

2002 S C M R 334

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMAMI) NAWAZ and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 156 of 1999, decided on 5th November, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 25‑2‑1998, passed in Criminal Appeal No.308 of 1995).

(a) Penal Code (XLV of 1860)‑‑‑

-‑‑‑Ss. 302/34, 324/34 & 337(a)(iii)/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused by Supreme Court to reappraise the prosecution evidence to ensure fair administration of criminal justice in the case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 324/34 & 337(a)(iii)/34‑‑‑Appraisal of evidence‑‑‑Occurrence was of day time‑‑‑F.I.R. was promptly lodged‑‑‑Eye‑witnesses were natural witnesses of the occurrence and their statements inspired confidence‑‑­Medical evidence was fully supported by ocular testimony which had established the presence of eye‑witnesses in the car at the time of incident‑‑­Non‑recovery of weapons of offence did not create any doubt in the prosecution version as the accused had remained at large for about one month and they could destroy the same‑‑‑High Court had rightly agreed with conclusion of the Trial Court‑‑‑Appeal was dismissed in circumstances.

Aftab Farrukh, Senior Advocate Supreme Court for Appellants.

2002 S C M R 338

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

S.M. SHAM AHMAD ZAIDI though Legal Heirs‑‑‑Petitioner

versus

Malik HASSAN ALI KHAN (MOIN) through Legal Heirs‑‑‑Respondent

Civil Petition No. 81‑K of 2001, decided on 4th October, 2001.

(On appeal from the judgment dated 22‑12‑2000 of High Court of Sindh, Karachi passed in H.C.A. No.238 of 1999).

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

‑‑‑‑O.VII, RAI ‑‑‑Rejection of plaint‑‑‑Material available on record‑‑­Intrinsic value of‑‑‑Scope‑‑‑Besides averments made in the plaint, other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff, could also be looked into for the purpose of rejection of the plaint‑‑‑Not necessary that other material would be taken as conclusive proof of the facts stated therein but it actually moderated that other material on its own intrinsic value to be considered alongwith the averments made in the plaint.

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

‑‑‑‑S.9‑‑‑Civil Procedure Code (V of 1908), O.VII,‑R.11 ‑‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for possession of immovable property‑‑­Rejection of plaint‑‑‑Title of plaintiff was not clear‑‑‑Government gave the suit land to cooperative society and the latter surrendered the same back to the former‑‑‑Predecessor‑in‑interest of the petitioners had no independent right and if he had any right, that was through the Society, and the title ceased to exist before it became perfect and enforceable in law‑‑‑Plaint was rejected by Single Judge of High Court on the ground that the title of the plaintiff was not clear and the order was maintained by Division Bench of High Court‑‑‑Validity‑‑‑Suit for possession could not be filed unless the plaintiff had a clear title‑‑‑Requirement of law was that incompetent suit should be buried at its inception‑‑‑Such practice was in the interest of litigating parties and judicial institutions itself‑‑‑Rejection of plaint would save the time and expenses of the parties and the Courts could get more time to devote if for the genuine causes‑‑‑Findings of Single Judge and of Division Bench were based upon material available on record and no legal infirmity had been pointed out‑‑‑Plaint was rightly rejected by both the Courts‑‑‑Leave to appeal was refused.

Syed Nasir Hussain Jafri, Advocate Supreme Court for Petitioners.

Muhammad Shafi, Advocate Supreme Court and M.S. Ghaury, Advocate‑on‑Record for Respondents.

Date of hearing: 4th January, 2001.

2002 S C M R 343

[Supreme Court of Pakistan]

Present: Ajmal Mian and Nasir Aslam Zahid, JJ

HAJI HUSSAIN HAJI DAWOOD through Legal Heirs and others‑‑‑Appellants

versus

M.Y. KHERATI‑‑‑Respondent

Civil Appeal No.394‑K of 1990, decided on 15th April, 1991.

(From the judgment of the Sindh High Court dated 28‑I1‑1989 passed in F.R.A. No.905 of 1987).

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5 & Art.164‑‑‑Condonation of delay‑‑‑Where aggrieved party was neither served nor was aware of institution of proceedings affecting his rights, period of limitation provided by law would commence from the date the aggrieved party became aware of such proceedings or adverse orders.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5 & Art. 164‑‑‑Delay in filing appeal ‑‑‑Condonation‑‑‑Order appealed against found to be a nullity, about which affected party had no earlier knowledge‑‑‑Plea of limitation that it started from the date of order could not be pressed against such party, as he would be entitled to challenge same within the prescribed time counting the period from date of his knowledge.

Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others PLD 1970 Lah. 6 rel.

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

‑‑‑‑S.21‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Section 5 of Limitation Act, 1908 is not applicable to appeals filed under Sindh Rented Premises Ordinance, 1979.

Abdul Ghafoor v. Mumtaz PLD 1982 SC 88 and Ali Muhammad v. Fazal Hussain 1983 SCMR 1239 ref.

(d) Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑S. 21‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Limitation‑‑‑Ex parte ejectment order passed on wrong assumption that tenant had been served, was in excess of jurisdiction, which resultantly became a nullity‑‑‑Bar of limitation in such circumstances could not stand in way of appellant‑‑‑Period of limitation would run from date on which appellant came to know of passing ex parte order.

Jamaluddin v. Ms:. Maryam 1988 MLD 1970 rel.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 21‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Limiation‑‑­Ejectment proceedings without impleading legal representatives of deceased tenant‑‑‑Effect‑‑‑Tenant died before service could be effected on him, and his legal representatives were not impleaded as parties‑‑‑Ex parte ejectment order was passed against tenant, and landlord got possession of the premises‑‑­Legal representatives of tenant on coming to know of passing of ejectment order filed appeal before High Court, which was dismissed having been filed beyond 30 days‑‑‑Validity‑‑‑Proceedings after death of tenant including ejectment order and execution proceedings were a nullity‑‑‑Aggrieved party i.e. legal representatives of deceased tenant, was neither served nor was aware of institution of ejectment petition, thus period of limitation provided by law would commence from the date the aggrieved party became aware of such proceedings or adverse orders‑‑‑Appeal before High Court was not liable to be dismissed as time‑Jarred‑‑‑Supreme Court set aside judgment of High Court and eiectment order passed b`, Rent Controller, and remanded the case to Rent Controller for its fresh decision after impleading aggrieved party as opponents‑‑‑Supreme Court further directed Rent Controller to restore possession of premises to aggrieved party, if its possession was still found with landlord.

Jan Muhammad Dawood, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Appellants.

Nemo for Respondent.

Dates of hearing: 7th and 8th April, 1991.

2002 S C M R 350

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

MUHAMMAD ILYAS and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.393 of 2000, decided on 13th September, 2001.

(On appeal from the judgment, dated 3‑5‑2000 of the Lahore High Court, Lahore, passed in Criminal Appeal No.514 of 1998 and Murder Reference No.207‑T of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to the accused by Supreme Court to reappraise the evidence so as to determine as to whether guilt of accused stood established beyond doubt in view of the contentions that both the eye‑witnesses were closely related to the deceased and were chance witnesses, ocular evidence was uncorroborated and the motive was false on account of composition between the parties.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑Occurrence had taken place in broad daylight and the accused had been squarely charged in the promptly lodged F.I.R. for killing the five deceased by effective firing made from Kalashnikovs‑‑‑Accused being known to the deceased possibility of mistaken identity stood ruled out‑‑‑Ocular testimony was amply corroborated by promptly lodged F.I.R., the motive and the medical evidence ‑‑‑Eye­witnesses had given a straightforward and consistent account of occurrence who were not prompted by any oblique motive to falsely implicate the accused in the case‑‑‑Close relationship of prosecution witnesses with the deceased and background of enmity between them did not justify rejection of their testimony which was corroborated by the abovementioned confirmatory pieces of evidence‑‑‑One eye‑witness was an independent witness as he was neither related to any deceased nor inimical towards and accused‑‑‑Promptitude with which the F I.R was lodged had established the presence of eye‑witnesses on the spot at the time of occurrence and they were, thus, natural and not chance witnesses‑‑‑No mitigating circumstance for awarding lesser penalty was present on record‑‑‑Appeal of accused was dismissed in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evince‑‑‑Related witness‑‑‑Relationship of an eye‑witness with the deceased is meaningless if his testimony is corroborated by independent evidence.

Zahid Hussain Bokhari, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Appellants.

Malik Ainul Haq, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for the State.

N.A. Butt, Advocate Supreme Court for the Complainant.

Date of hearing: 13th September, 2001. .

2002 S C M R 356

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddtqui, Javed Iqbal and Hamid Ali Mirza, JJ

STAR TEXTILE LTD. and 5 others‑‑‑Petitioners

versus

GOVERNMENT OF SINDH through Secretary Excise and Taxation Department, Sindh Secretariat, Karachi and 3 others‑‑‑Respondents

Civil Petitions Nos.499‑K to 504‑K of 2001, decided on 22nd October, (On appeal from the judgment dated 27‑6‑2001 of High Court of Sindh passed in Constitutional Petitions Nos. D‑1376, D‑1377, D‑1378, D‑1447, D‑1448, D‑1273 of 2000).

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑‑

‑‑‑‑Ss. 5 & 8‑A [as amended by Sindh Finance Act (VIII of 1987)]‑‑‑Levy of property tax‑‑‑Specification of rating area‑‑‑Provincial Government by virtue of S.8‑A of West Pakistan Urban Immovable Property Tax Act, 1958 [as amended on 10‑12‑1987], extended the limits of rating area to entire Karachi Division, whereas prior to such amendment, the properties of petitioners were not within the limits of Karachi Rating Area‑‑‑Contention was that such amendment was void and it could not be given retrospective effect by taking away vested rights of petitioners to be assessed in accordance with old valuation list‑‑‑Validity‑‑‑Retrospective operation could be given and would be valid, if Legislature so directed‑‑‑Legislature had given retrospective effect to S:8‑A of the Act, which could not be challenged on the ground ‑that party was burdened with certain liability because of retrospective operation‑‑­Provincial Government under provisions of West Pakistan Urban Immovable Property Tax Act, 1958, was competent to specify urban area where tax would be levied and to divide one urban area into two or more rating areas or several areas to group into one rating area.

New Electronics (Pvt.) Limited through Director v. The Collector of Customs (Appraisement), Karachi and 2 others PLD 1994.Kar. 286; Fecto Cement Ltd. v. The Collector of Customs Appraisement 1994 MLD 1136; Syed Wasey Zafar and 4 others v. Government of Pakistan through Secretary, Finance and others PLD 1994 SC 621; Ahmad Corporation v. Messrs The International Food Grain and Oil Seed, Karachi PLD 1973 Kar. 361; Government of Pakistan and another v. Messrs Mardan Industries Ltd and another 1988 SCMR 410; Major‑General (Retd.) Sher Ali Khan v. Commissioner of Income Tax and Gift Tax PLD 1991 SC 422; Annor Textile Mills Ltd. and another v. The Federation of Pakistan and another PLD 1994 SC 568 and Gatron (Industries) Ltd. v. Government of Pakistan and others 1999 SCMR 1072 ref.

(b) West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑-

‑‑‑‑Ss.5 & 8‑A [as amended by Sindh Finance Act (VIII of 1987)]‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Levy of property tax‑‑‑Constitutional petitions assailing vires of amendment of S.8‑A of West Pakistan Urban Immovable Property Tax Act, 1958, were disposed of by High Court by remanding cases to Secretary, Excise and Taxation Department with a direction to decide them in accordance with law after hearing all concerned parties‑‑‑Secretary, instead of deciding cases himself entrusted them to Director, Excise and Taxation, 'who after hearing the parties; passed the order holding that petitioners were liable to pay property tax in accordance with amended S.8‑A of the Act‑‑‑Contention was that the cases were remanded by High Court to Secretary and he having been authorised only to exercise delegated powers could not further delegate such power to Director‑‑‑High Court repelled the contention ‑‑‑Validity‑-­Petitioners had admitted before High Court that they had been given an opportunity of hearing before passing such order‑‑‑If Secretary would have decided such cases otherwise, still the decision of Supreme Court would have been the same as had‑ been recorded by' High Court‑‑‑Supreme Court dismissed the petitions in circumstances.

(c) Interpretation of statutes‑--

‑‑‑‑ Fiscahlaw‑‑‑While interpreting tax law, there is no scope of implication‑‑‑Where language of a fiscal law is unequivocal and unambiguous, then it has to be looked into what is clearly stated therein, and intendment and equity are not to be explored therefrom‑‑‑General rule is that "tax and equity" are strangers to each other.

(d) Interpretation of statutes‑--

‑‑‑‑Retrospective operation‑‑‑Legislature is competent to amend, vary or repeal the enactment‑‑‑No statute shall be construed so as to have retrospective operation, unless its language so directs ‑‑‑Restrospective operation is valid, if the Legislature so directs.

(e) Maxim‑--

‑‑‑‑"Tax" ‑‑‑‑"Tax" and "equity" are strangers to each other.

Kamal Azfar, Advocate Supreme Court and K.A. Wahab, Advocate­on‑Record (absent) for Petitioners.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents

Nos. 1 to 3. Sardar Muhammad Aslam, D.A.‑G for the State.

Date of hearing: 22nd October, 2001.

2002 S C M R 361

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Hamid Ali Mirza, JJ

M. HANNAN and 2‑others ‑‑‑Petitioners

versus

Dr. ANWARUL HASSAN and another‑‑‑Respondents

Civil Petition No.554‑K of 2000, decided on 22nd February, 2001

(On appeal from the judgment order dated 4,‑10‑2000 passed High Court of Sindh, Karachi, in H. C. A. No. 171 of 1998).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Civil Procedure Code of 1908), O. VII, R.11‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Specific performance of sale agreement‑‑‑Limitation‑‑‑Defendant, after having entered into an agreement of sale with plaintiff, inducted another person into the property in year 1993, against which plaintiff sought his remedy before almost every Court except the appropriate forum‑‑‑Plaintiff filed suit for specific performance of agreement in year 1997‑‑‑High Court rejected plaint being barred by time‑‑‑Validity‑‑‑Cause of action to get the agreement enforced had accrued to plaintiff when another person forcibly entered into the property‑‑‑Plaintiff filed suit in year 1997, which according to Art.113 of Limitation Act, 1908 had to be filed within three years‑‑‑No misapplication or non‑application of law was found in impugned judgments‑‑‑Supreme Court dismissed petition for leave to appeal in circumstances.

Faizanul Haq, Advocate Supreme Court for Petitioners. New for Respondents.

Date of hearing: 22nd February, 2001.

2002 S C M R 362

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Tanvir Ahmed Khan, JJ

GULZAR and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition No.29‑L of 2001, decided on 28th May, 2001.

(On appeal from the judgment/order, dated 29‑11‑2000 passed by Lahore High Court, Lahore in Criminal Appeal No.887 of 1995 and Murder Reference No.294 of 1995).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Complainant was neither an interested or inimical witness, nor he had any background of hostility‑‑‑Statement of the complainant was amply corroborated by the statement of the Tracker who had tracked the footprints of the accused‑‑­Accused had also been seen at the scene of occurrence by a prosecution witness‑‑‑High Court had given cogent reasons for dismissing the appeal of accused‑‑‑Leave to appeal was refused to accused by Supreme Court accordingly.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 28th May, 2001.

2002 S C M R 364

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

GOVERNMENT OF PAKISTAN and 2 others‑‑‑Petitioners

versus

Mst. SARTAJ BIBI and another‑‑‑Respondents

Civil Petition No.423‑K of 2000, decided on 5th December, 2000.

(On appeal from the judgment dated 15‑6‑2000 of the High Court of Sindh Bench at Sukkur passed in 1st Civil Appeal No. 8 of 1996)

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 54 & 18(3) [as amended by, S.2 of Land Acquisition (Sindh Amendment) Ordinance (IV of 1992)]‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Right of appeal‑‑‑Company or local authority‑‑‑Appeal against rejection of reference made to District Judge under S.18(3) of Land Acquisition Act, 1894, before High . Court was dismissed being incompetent‑‑‑Validity‑‑‑Appeal by a Company or local authority was competent‑‑‑In view of amendment made in S.18(3) of Land Acquisition Act, 1894 vide Land Acquisition (Sindh Amendment) Ordinance (IV of 1992)‑‑‑High Court while disposing of appeal had not dealt with the said amendment‑‑‑Supreme Court set aside the impugned order and remanded the case to High Court for its decision in accordance with law‑‑‑Petition was converted into appeal and was allowed in circumstances.

S." Zaki Muhammad, Dy.A.‑G. and Akhlaq Ahmed .Siddiqui, Advocate‑on‑Record for Petitioners.

Mushtaque Memon, Advocate Supreme Court and Mrs. Majida Razvi, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 5th December, 2000.

2002 S C M R 366

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

Messrs WAHEED BROTHERS (PAKISTAN) LTD., LAHORE through Chief Executive‑‑‑Appellant

versus

Messrs IZHAR (PVT.) LTD., LAHORE through Managing Director‑‑‑Respondent

Civil Appeal No. 1347 of 1995, decided on 19th September, 2001.

(On appeal from the judgment dated' 23‑2‑1994 of 'Lahore High Court, Lahore passed in F.A.O. No.214 of 1993).

(a) Arbitration Act (X of 1940)‑‑-

‑‑‑‑Ss. 15, 30 & 39(2)‑‑‑Civil Procedure Code (V of 1908), O. XX, R. 19‑‑‑Award‑‑‑Sole arbitrator appointed by parties gave his award‑‑‑Parties entered into compromise before Civil Court and with their consent award was modified, which was made rule of the Court‑‑‑Respondent filed application for execution of award as incorporated in the decree‑‑‑Appellant claiming set‑off from respondent filed application under O. XX, R.19, C.P.C.; which was dismissed and his appeal was also dismissed by High Court‑‑‑Contention was th4t modified award being a new agreement between the parties was not capable of execution‑‑‑Validity‑‑‑Importance of modified award could not be downplayed by calling same as a "new agreement", which was a consent document and reflected unanimous view of the parties expressed therein‑‑‑Award was made rule of the . Court after taking into consideration all the evidence brought on record by the parties‑‑­Courts below after discussing the factual aspect in detail had rendered concurrent findings, wherein neither any legal flaw nor misreading or non‑reading of evidence had been pointed out nor there was any justification for exercising jurisdiction under Ss.15 & 30 of Arbitration Act, 1940‑‑‑No legal point having been raised Supreme Court dismissed the appeal.

(b) Arbitration‑‑‑

‑‑‑‑Object of‑‑‑Object of getting the dispute settled through arbitration is to bypass lengthy procedure invoked in civil cases‑‑‑Arbitrator is a domestic Tribunal controlled by chosen representatives/arbitrators of the parties, who are imbibed with the spirit of doing complete justice between them as early as possible without getting themselves unnecessarily involved in technicalities embodied in procedural law.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 15 & 30‑‑‑Award‑‑‑Role of the Courts under Arbitration Act, 1940, principally is of supervisory nature and not that of appellate power under C.P.C.‑‑‑Award may be modified or corrected when it‑falls within the scope of S.15 of the Arbitration Act, 1940 and it can be set aside, if it is governed by S.30 of the said Act but there is no provision for review in the Act.

K.M.A. Samdani, Advocate Supreme Court and Muhamnlad Aslam Ch., Advocate‑on‑Record (absent) for Appellant.

Anwar Kamal, Advocate Supreme Court for Respondent.

Date of hearing: 19th September, 2001.

2002 S C M R 371

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

BADRUDDIN ROSHAN‑‑‑Petitioner

versus

Mst. RAZIA SULTANA and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.527‑K of 2000, decided on 21st November, 2000.

(On appeal from the order of the High Court of Sindh, Karachi, passed on 18‑10‑2000 in Constitutional Petition No.460 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Merely because a party was aggrieved by an impugned order, it could not be said to have been passed in excess of jurisdiction, was ultra vires or illegal‑‑‑Where impugned order was neither illegal nor perverse nor suffering from any jurisdictional, error, jurisdiction under Art. 199 of the Constitution could not be invoked.

(b) Guardians and Wards Act (VIII of 1890)‑‑-

‑‑‑‑Ss.12 & 25‑‑‑West Pakistan Family Courts Act (XXX of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Arts. 185(3)‑& 199‑‑‑Custody of minor child‑‑‑Father got from mother custody of minor child by force during pendency of case before Guardian Court‑‑‑Appellate Court directed the Guardian Court to restore the position with regard to custody of minor as it was at the time of filing of case and decide same on merits keeping in view welfare of the minor‑‑‑High Court in exercise of Constitutional jurisdiction refused to interfere with order of Appellate Court‑‑‑Validity‑‑‑ Father's apprehension that in the event of production of minor before Guardian Court for visitation of mother, she might kidnap minor, was unfounded and misconceived‑‑‑Supreme Court while declining to express any opinion on the merit of the case lest it should prejudice the interest of either of the parties, observed that custody of minor must be regulated by Guardian Court in accordance with consistent practice and law of the land having regard to the supreme interest of welfare and well‑being of the minor‑‑‑High Court had not committed any error of law by' refusing to interfere with discretionary order of Appellate Court‑‑‑Impugned order did not suffer from any legal infirmity or jurisdictional error warranting interference by Supreme Court‑‑‑Leave to appeal was refused in circumstances.

Akhlaque Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st November, 2000.

2002 S C M R 374

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 196 of 2000, decided on 15th October, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 30‑9‑1998, passed in Criminal Appeal No.81 of 1992 and M.R No. 151 of 1992).

(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 accused to consider whether death sentence in the circumstances could be awarded to him.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑Incident had taken place during day time‑‑‑F.I.R. was promptly lodged‑‑‑Specific role of causing "Chhuri" blows to the deceassed was attributed to the accused‑‑‑Chemical Examiner's report about the blood‑stained "Chhuri" recovered from the accused was positive and the blood on the "Chhuri" and secured from the "Wardat" was of human nature according to the report of the Serologist‑‑‑Ocular account was natural, convincing and trustworthy‑‑‑Prosecution witnesses, no doubt, were related to the deceased, but had no previous enmity or ill‑will against the accused, so that real culprits might be let off and in their place other persons might be substituted‑‑‑Courts below had very properly considered and appreciated the evidence‑‑‑Fatal injury having been attributed to accused, he had rightly been convicted and sentenced to death‑‑‑There being no misreading or non‑reading of evidence, impugned judgment was not open to exception‑‑‑Appeal was dismissed accordingly.

S.M. Nazim, Advocate Supreme Court and Mehmoodul Islam, Advocate‑on‑Record (absent) for Appellant.

Ehsanullah Lillah, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for the State.

Date of hearing: 15th October, 2001

2002 S C M R 378

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddigui, Actg. C.J. and Wajihuddin Ahmed, J

Messrs CHAPAL BUILDERS‑‑‑Petitioner

versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petition No.686‑K of 1998, decided on 2nd April, 1999

(a) Sindh Local Government Ordinance (XII of 1979)‑‑

‑‑‑‑Ss. 3(60)(77) & 7(1)(b)(d)‑‑‑Karachi Development Authority Order (5 of 1957), Art. 12‑‑‑Constitution of Pakistan (1973) Art. 185(3)‑‑‑Features and characteristics a town should possess‑‑‑Declaration of an area to be a town‑‑­Leave to appeal was granted by the Supreme Court to consider whether disputed area could not be relegated to the status of a town in contravention of S.7(1)(b)(d) of Sindh Local Government Ordinance, 1979, which was already a part of Urban Area of Karachi Development Authority and therefore, of the city of Karachi.

Baba Corporation (Pvt.) Ltd. v. Province of Sindh, Karachi PLD 1989 Kar. 136 and Union Council v. Baba Corporation (Pvt.) Ltd. 1993 SCMR 596 ref.

(b) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S.7‑‑‑Town‑‑‑Concept‑‑‑Essentials‑‑‑Features‑‑‑Town as far as possible shall be a compact and contiguous area with territorial unity having a population between five thousand to twenty five‑thousand.

Abrar Hassan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Munir‑ur‑Rehman, A.A.‑G on notice to A.‑G., Sindh for Respondents.

Date of hearing: 2nd April, 1999.

2002 S C M R380

[Supreme Court of Pakistan]

Present: Muhamrnad Bashir Jehangiri, Actg. CJ., Munir A. Sheikh and Rana Bhagwandas, JJ

AYYAZ BAIG alias BAU CHUHANWALA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Review Petition No.9 of 2000, decided on 2nd October, 2001.

(On review. from judgment of this Court, dated 19‑4‑2000 passed in Criminal Appeal No. 147(L) of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑‑Constitution of Pakistan (1973). Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI; R.1‑‑‑Review of Supreme Court judgment‑‑­Sentence‑‑‑Grounds urged in support of the review petition essentially sought re‑hearing of the petition for leave to appeal already dismissed, which could not be permitted under the law‑‑‑All grounds raised for the accused were duly considered and dealt with at length‑‑‑Impugned judgment did not suffer from any misreading of the material on record or any other legal infirmity, nor any error of law or jurisdiction apparent on the face of record was shown‑‑‑Contention that dispensation of law in the award of sentence of death was erroneous or that the Court had gone wrong in application of any principle of law to the facts of a particular case did not constitute a valid ground for review‑‑‑Supreme Court in criminal matters would not generally interfere in review with the quantum of sentence if legal sentence had been imposed or upheld after due consideration of all the relevant circumstances‑‑­Review petition was dismissed accordingly.

Muhammad Tufail v. Abdul Ghafoor PLD 1958 SC 201; Zulfiqar Ali Bhutto v. State PLD 1979 SC 741; Arif Shah v. Abdul Hakeem PLD 1991 SC 905 and Abdul Ghaffar‑Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.

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

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Scope of jurisdiction of review by Supreme Court is restricted‑‑‑Re‑hearing .of a case is not permissible in exercise of review jurisdiction within the contemplation of Art. 188 of the Constitution read with O. XXVI, R. 1 of Supreme Court Rules, 1980.

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

‑‑‑‑Art. 188‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Sentence‑‑‑Review‑‑­Supreme Court in criminal matters will not generally interfere in review with the quantum of sentence, if a legal sentence has been imposed or upheld after due consideration of all the relevant circumstances.

Muhammad Tufail v. Abdul Ghafoor PLD 1958 SC 201; Zulfiqar Ali Bhutto v. State PLD 1979 SC 741; Arif Shah v. Abdul Hakeem PLD 1991 SC 905 and Abdul Ghaffar‑Abdul Rahman v. Asghar Ali PLD 1998 SC 363 ref.

Syed Abul Asim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 2nd October, 2001.

2002 S C M R 383

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

ABDUL SATTAR. MEMON‑‑‑Appellant

versus

Khatri KARIM MUHAMMAD ‑‑‑Respondent

Civil Appeal No. 1360 of 1999, decided on 8th February, 2001.

(On appeal from the judgment and order of Sindh High Court, Karachi dated 4‑6‑1999 in FRA No. 254/96).

Sindh Rented Premises Ordinance (XVH of 1979)‑‑‑

‑‑‑‑S.15(2)(viii)‑‑‑Constitution of Pakistan (1973), Art.l85(3)‑‑‑Bona fide personal need of landlord‑‑‑Landlord did not object to tenant's request that in case he was provided one year time for vacating premises, he would not press his appeal‑‑‑Supreme Court allowed the tenant's request and dismissed his appeal as not pressed in circumstances.

Ali Akbar, Advocate‑on‑Record for Appellant. , Suleman Qasim, Advocate Supreme Court for Respondent

Dathe of hearing: 8th February, 2001.

2402 S C M R 384

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

ZAHIR SHAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.26 of 2001 in Jail Petition No. 129 of 2000, decided on 7th September, 2001.

(On appeal from the judgment, dated 30‑5‑2000 of High Court of Balochistan, Quetta passed in Criminal Appeal No.354 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Preamble‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Judicial confession made by accused was both true and voluntary and its truthfulness was established by ocular testimony, medical evidence and other corroborative pieces of evidence brought on record‑‑‑Prosecution witnesses had no motive whatsoever to falsely implicate the accused and they had been rightly believed by the Courts below‑‑‑Contention that the case was not covered by the provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, was not a pure question of law but it was a mixed question of law and fact‑‑‑Issue of jurisdiction of Court was, neither raised before the Trial Court nor before High Court and the said contention had no force‑‑‑Leave to appeal was refused to accused in circumstances.

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

‑‑‑‑Ss.164 & 364‑‑‑Constitution of Pakistan (1973), Art.13‑‑‑Provisions of Ss.164 & 364, Cr.P.C. are not violative of Art. (13(b) of the Constitution, rather they are in consonance with Art. 13 of the Constitution.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 7th September; 2001.

2002 S C M R 388

[Supreme Court of Pakistan]

Present: Wajihuddin Ahmed and Kamal Mansur Alam, JJ

MUHAMMAD JAVED and others‑‑‑Petitioners

versus

OFFICER INCHARGE, MARKET COMMITTEE, GOVERNMENT OF SINDH and another‑‑‑Respondents

Civil Petitions Nos.489‑K and 611 to 613‑K of 1999, heard on 6th January, 2000.

(On appeal from the judgment/order of the High Court of Sindh, Karachi, dated 13‑5‑1999 in C.P. No.466 of 1998, dated 14‑6‑1999 in C.P. No.B‑21 of 1998, dated 14‑6‑1999 in C.P. No. 1279 of 1998 dated 14‑6‑1999 in Constitutional Petition No. 1511 of 1998).

(a) Establishment of the Office of Ombudsman for the Province of Sindh Act (I of 1992)‑‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Ombudsman, functions of‑‑‑Neither Supreme Court nor High Court, in ordinary course of things, undertakes to supervise or control administrative matters, and for this purpose a substantially high level of the correcting machinery is that of the Ombudsman.

(b) Establishment of the Office of Ombudsman for the Province of Sindh Act (I of 1992)‑‑‑

‑‑‑‑S.9(1)‑‑‑Constitution of Pakistan (1973), . Art. 185(3)‑‑‑Agricultural Produce Markets Act (V of 1939), Ss. 7 && 14‑‑‑Petition for leave to appeal‑‑‑Reference by Supreme Court‑‑‑Maladmintstration of Market Committee‑‑‑Supreme Court, after hearing the marten at some length, formulated several questions and referred those to Provincial Ombudsman in terms of S.9 of the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1992, for sorting out and resolving the dispute on an early date‑‑‑Supreme Court observed that Ombudsman would be; free to exercise his general and suo motu powers in the matter under S. 9 and direct partial shifting of Sabzi Mandi/Vegetable Mandi for ensuring due workability of the scheme of Market Committee; and the parties would he free to place before Ombudsman copies of all the proceedings considered appropriate by them‑‑‑Petitions for leave to appeal were disposed of accordingly.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner (in all Petitions).

Muneer Rehman, Addl. A.G., Miss Wajahat Niaz, Advocate‑on­-Record and Giasuddin Mirza, Advocate‑on‑Record for Respondent No. 1.

A. Ghafoor Mangi, Advocate Supreme Court for the Market Committee.

Date of hearing: 6th January, 2000.

2002 S C M R 391

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

MUHAMMAD YASIN and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.576 and 577 of 2000 and Jail Petition No.128 of 1999, decided on 26th September, 2001.

(On appeal from the judgment/order, dated 20‑5‑1999 passed by Lahore High Court, Lahore in Criminal Appeal No. 708 of 1995)

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34 & 394‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether the Trial Court and High Court had correctly assessed the evidence on record and had rightly rendered finding of guilt in view of the principles enunciated by Supreme Court for appraisal of evidence, and whether the High Court in the impugned judgment was legally justified to convert the sentence of death of one accused into imprisonment for life.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34 & 394‑‑‑Appraisal of evidence‑‑‑Accused had committed robbery in the Bank in broad daylight in which one person lost his life and two persons received injuries‑‑‑Accused had been apprehended after a chase given by the Police and the Bank Staff and the fire‑arms as well as the robbed property were recovered from their possession‑‑‑Eye‑witness account furnished by the prosecution witnesses was natural and convincing and the defence was not able to prove any enmity, bias or ill‑will against them‑‑­Reports of the Chemical Examiner, Serologist and. Forensic Science Laboratory had corroborated the ocular testimony‑‑‑Well‑reasoned impugned judgment of High Court did not warrant any interference‑‑‑Appeals were dismissed accordingly.

Wallayat v. State 2002 SCMR 53 and Moazam Shah v. Mohsan Shah PLD 2001 SC 458 ref.

(c) Criminal trial‑‑‑

‑‑‑‑ Sentence‑‑‑Where prosecution is able to prove its case against an accused beyond reasonable doubt, the maximum punishment provided for an offence should be awarded.

Wallayat v. State 2002 SCMR 53 and Moazam Shah v. Mohsan Shah PLD 2001 SC 458 ref.

(d) Criminal trial‑‑‑

‑‑‑‑ Award of punishment‑‑‑Guidelines.

Leniency is being shown in matters of capital punishment by the Courts below even in those cases where act/crime involved was of heinous nature, which terrorized the society as a whole or a part thereof. No doubt, a Judge ought to be lenient and compassionate in awarding punishment in any offence but at the same time he should be more cautious in believing the prosecution story as it is narrated before him and efforts should not be trade to look for mitigating circumstances, creating doubt in the prosecution case and extend benefit of doubt to the accused so that the miscreants may not be set at free who are responsible for causing unrest in the society as a whole and the menace should be curbed. Therefore, when an offence is proved beyond reasonable doubt against an accused person a Judge should never hesitate to award punishment provided for that offence, even if that is a capital punishment, especially in offences of heinous nature causing terror in the society.

Najeeb Faisal Chaudhry, Advocate Supreme Court for Appellant (in Cr:P. No.576 of 2000).

Malik Jehanzab Taman, Advocate Supreme Court for Appellant (in Cr.P. No.577 of 2000).

M. Zaman Bhatti, Advocate Supreme Court for the State (in all Cases).

Date of hearing: 26th September, 2001.

2002 S C M R 398

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Qazi Muhammad Farooq and Javed Iqbal, JJ

ABBAS KHAN and another ‑‑‑Petitioners

versus

APPELLATE AUTHORITY, DISTRICT AND SESSIONS. JUDGE, ATTOCK and others‑‑‑Respondents

Civil Petition for Leave to Appeal,No.1678 of 2001, decided on 21st June, 2001.

(On appeal from the Order dated 24‑6‑2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 1997 of 2001). .

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(i)‑‑‑Punjab Local Government Elections Rules, 2000, R.16(4) & Form XIX‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Election‑‑­Declaration in Form XIX‑‑‑Concealing of certain assets‑‑‑Substantial amount of money was lying in deposit in account of candidate and was not disclosed by him in the declaration of assets tiled alongwith the nomination papers‑‑­Effect‑‑‑All assets were not declared in compliance with R.16(4) of Punjab Local Government Elections Rules, 2000, which the candidate was obliged to disclose in Form XIX‑‑‑Where actual assets of the candidate were at variance with his declared assets, the candidate was not qualified to be elected as a member of Local Government in view of S.14(i) of Punjab Local Government Elections Ordinance, 2000‑‑‑Leave to appeal was refused.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R.18(3)(i)‑‑‑Scrutiny of nomination papers‑‑‑Returning Officer, jurisdiction of‑‑‑Rejection of nomination papers‑‑‑Scope‑‑‑Returning Officer was fully empowered to reject nomination papers for want of qualification‑‑­When Returning Officer was satisfied that candidate was not qualified to be elected as member, under the provisions of R.18(3)(i) of Punjab Local Government Elections Rules, 2000, the Returning Officer might either suo motu or upon any objection reject nomination papers of such candidate.

Hafiz S.A. Rehman, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No.4.

Date of hearing: 21st June, 2001.

2002 S C M R 400

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

MUHAMMAD ALI PINHAM‑‑‑Appellant

versus

MUHAMMAD IDRIS‑‑‑Respondent

Civil Appeal No. 1881 of 1996, decided on 10th April, 2000

(On appeal from the judgment dated 26‑5‑1996 of High Court of Sindh passed in F.R.A. No.480 of 1992).

(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 to consider whether the evidence on record was sufficient to justify the plea of bona fide personal use.

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

‑‑‑‑S. 15‑‑‑Bona tide personal need of landlord‑‑‑Landlord was an old person of more than 70 years, having various ailments and was living in a rented house which was in dilapidated condition and owned no other property‑‑­Rent Controller allowed the eviction of tenant but High Court set aside the order of Rent Controller‑‑‑Validity‑‑‑Landlord was occupying other rented premises or was living with relatives was no ground to disentitle him from occupying his own premises‑‑‑Rent Controller had rightly passed order of eviction of the tenant from premises on the ground of personal bona fide need‑‑‑No mala fide on the part of landlord having been established-‑Supreme Court set aside the order passed by High Court.

Messrs Tiger Wire Product Ltd. v. S. Abrar Hussain 1983 SCMR 402 and Nighat Riaz v. Manzoor Hassan 1991 SCMR 1434 ref.

Imran Ahmed, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record (absent) for Appellant.

Ali Akbar, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 10th April, 2000.

2002 S C M R 403

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Rana Bhagwandas and Tanvir Ahmed Khan, JJ

AMIR KHAN and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.547 and 548 of 1995, decided on 22nd March, 2001.

(On appeal from the judgment dated 26‑6‑1995 of the Lahore High Court, Lahore, passed in Criminal Appeal No.372 of 1991 alongwith Murder Reference No. 130 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 in order to ensure safe administration of criminal Justice, reappraisal of prosecution evidence would be necessary.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Accused after serving out their entire period of sentences had since been released and the appeal filed by them was not pressed‑‑‑Appeal filed by the complainant for enhancement of sentence of the accused, in circumstances, had become infructuous as they could not be convicted again for the same offence‑‑‑Appeals were thus disposed of as having become infructuous.

M.A. Zafar, Advocate Supreme Court for Appellants (in Cr.A. No.547 of 1995).

Talat Farooq Sheikh, Advocate Supreme Court for Appellants (in Cr. A. No. 548 of 1995).

M.A. Zafar, Advocate Supreme Court for Respondents (in Cr.A No. 548 of 1995).

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 22nd March, 2001.

2002 S C M R 404

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

Peer WAQAR HUSSAIN SHAH and another‑‑‑Petitioners

versus

RETURNING OFFICER, UNION COUNCIL N0.31, TEHSIL AND DISTRICT CHAKWAL‑‑‑Respondent

Civil Petition. No. 1701 of 2001, decided on 26th June, 2001.

(On appeal from the judgment/order dated 15‑6‑2001 passed by Lahore High Court, Rawalpindi Bench in W.P. No.2064/2001).

Punjab Local Government Elections Ordinance (V of 2000)---

‑‑‑S.14(g)-‑‑Constitution of Pakistan, (1973), Art. 185(3)‑‑‑Qualification of candidates‑‑‑Employee of Water and Power Development Authority on contract basis‑‑‑Contention of the candidate was that as he was an employee on contract basis, therefore, provisions of S. 14(g) of Punjab Local Government Elections Ordinance, 2000, were not applicable to him‑‑­Validity‑‑‑Legislature in its own wisdom had not excluded employees on, contract basis from the purview of S. 14(g) of Punjab Local Government Elections Ordinance, 2000‑‑‑Calldidate even after filing of his nomination papers was still an employee of the ‑authority‑‑‑Returning Officer, in view of such disqualification had committed no illegality in rejecting nomination papers of the candidate and High Court had rightly approved the order passed by Returning Officer in exercise of Constitutional jurisdiction.

Raja Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

M. Bilal, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for the Caveator.

Nemo for Respondent.

Date of hearing: 26th June, 2001.

2002 S C M R 407

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

MUHAMMAD SAEED and others‑‑‑Appellants

versus

COLLECTOR, LAND ACQUISITION and others‑‑‑Respondents

Civil Appeals Nos. 811 and 1745 of 1996, decided on 8th June, 2001.

(On appeal from the judgment dated 13‑11‑1995 passed by the Peshawar High Court, Abbottabad Bench in R.F.A. No. 10/1994).

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S. 23‑‑‑Compensation‑‑‑Determination of‑‑‑While determining amount of compensation, Court is to consider evidence brought on record by the parties and the Land Acquisition Collector while determining compensation of acquired land in addition to one year average price, has also to consider the potentiality and future prospective of the land.

Land Acquisition Collector/Deputy Commissioner, Abbottabad and others v. Sardar Muhammad Safdar Khan and others 1998 SCMR 2142; Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Deputy Commissioner/Land Acquisition Collector and others v. Sardar Muhammad Shafqat and others PLD 2001 SC 405; Land Acquisition Collector and others v. Dina and others 1999 SCMR 1615 and Murad Khan and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 ref.

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

‑‑‑‑S. 23‑‑‑Compensation‑‑‑Matters to be considered at the time of awarding compensation‑‑‑Compensation fixed by Authorities was maintained by Trial Court‑‑‑While considering various factors including location of acquired land, sale price of adjoining land, its potentiality and likelihood of development and improvement, report of Local Commissioner, the unrebutted evidence on record produced by the landowner, general tendency of the vendees to show smaller amount as to price of land purchased by them than actual price in paid by them in order to avoid imposition of heavy gain tax and stamp duty etc., inflationary trends and depreciation in currency in between the date of acquisition and date of award, High Court enhanced the compensation from Rs.15,000 per Kanal to Rs.40,000 per Kanal‑‑­Validity‑‑‑High Court was justified in enhancing the compensation:‑‑­Judgment of the High Court being based on valid and cogent reasons, Supreme Court declined to interfere with the same.

Haji Abdul Basit, Advocate Supreme Court and Imtiaz Muhammad Khan; Advocate‑on‑Record (absent) (in C.A. No. 811 of 1996 and for Respondent (in C.A. No. 1745 of 1996).

Younis Tanoli, A.‑G., N.‑W.F.P. and Abdul Qayyum Mazhar, Advocate‑on‑Record (absent) for Appellants (in C.A. No. 1745 of 1996 and for Respondents (in C.A. No.811 of 1996).

Date of hearing: 11th May, 2001.

2002 S C M R 412

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

Mst. SAS BANO and 3 others‑‑‑Petitioners

versus

Mst. MAHMOODA SABIR‑‑‑Respondent

Civil Petitions for Leave‑ to Appeal Nos. K‑424, 425, 426 and 427 of 1999, decided on 16th March, 2000.

(On appeal from the Common judgment dated 10th May, 1999 of Sindh High Court, Karachi, passed in F.R.As. Nos. 485, 486, 487 and 494 of 1994).

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlady‑‑‑Demised shops were required by landlady for her sons who wanted to start their business there‑‑‑Rent Controller allowed the application and appeal against eviction order was dismissed by High Court‑‑‑Validity‑‑‑Landlady had produced enough evidence to establish her good faith about her personal need‑‑‑Where no concrete evidence was brought on record in rebuttal of the claim of landlady, bona fides on her part was established‑‑‑Findings, of Rent Controller and of High Court were correct and Supreme Court refused to take any exception to the same‑‑‑Leave to appeal was refused.

Ali Akbar, Advocate Supreme Court for Petitioners.

Raja Shamsuzaman, Advocate Supreme Court and Raja Sher Muhammad, Advocate‑on‑Record for Respondent.

Date of hearing: 16th May, 2000.

2002 S C M R 415

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN‑‑‑Petitioner

versus

Messrs VALIBHAI KAMARUDDIN and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 17‑K of 2000, decided on 24th February, 2000.

(On appeal from the judgment dated 14‑10‑1999 passed by High Court of Sindh in H. C. A. No. 138 of 1990).

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 10(1)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal‑‑Maintainability‑‑‑Winding‑up of company‑‑‑High Court dismissed appeal of petitioner being not competent‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to examine; whether appeal before Division Bench of High Court against order of Company Judge was competent or before Supreme Court.

Muhammad Bakhsh v. Pakistan Industrial Credit Investment Corporation Limited and others 1999 SCMR 25 ref.

A.I. Chundrigar, Advocate Supreme Court and Ali, Akbar, Advocate‑on‑Record (absent) for Petitioner.

Afsar Abidi, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 24th February, 2000.

2002 S C M R 416

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Javed Iqbal and Hamid Ali Mirza, JJ

ABDUL MAJEED and others‑‑‑Appellants

versus

HAMIDA BIBI and 4 others‑‑‑Respondents

Civil Appeal No. 1330 of 1996, decided on 22nd March, 2001.

(On appeal from the judgment dated 30‑3‑1996, of the Lahore High Court, Lahore passed in Civil Revision No. 1477‑D of 1998).

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Condonation of delay‑‑‑Leave to appeal was granted by Supreme Court to consider; whether respondents were under duty to have explained delay of each and every day in filing appeal before, the Appellate Court‑‑‑Respondent had filed their appeal before the Appellate Court after 29 days for which they could not offer any reasonable/plausible explanation , and there was no legal justification with High Court to condone the delay in institution of appeal.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Condonation of delay‑‑‑Expression "due diligence" and "good faith" as appearing in S.14 of Limitation Act, 1908‑‑‑Applicability‑‑­Beneft under S.5 of Limitation Act, 1908 can only be availed if a party has acted in good faith and with due diligence‑‑‑Each case proceeds on its own facts, therefore, diligence and good faith would be determined on the facts of each case and no formula of inflexible or universal application can be laid down in abstract form.

PLD 2000 SC 94 ref.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Limitation Act (IX of 1908), Ss.5 & 14‑‑‑Appeal in pre‑emption suit‑‑‑Forum of appeal, determination of‑‑‑Delay in filing appeal‑‑­Condonation of delay‑‑‑Extension of benefit under Ss.5 & 14 of Limitation Act, 1908‑‑‑Points for consideration‑‑‑Judgment and decree passed by Trial Court were earlier assailed in High Court and appeal was accepted‑‑‑Supreme Court set aside the judgment of High Court and returned the memo. of appeal for submitting the same before Lower Appellate Court as High Court was not the proper forum‑‑‑Lower Appellate Court refused to condone the delay caused due to proceedings before High Court and appeal was dismissed being time‑barred‑‑‑High Court in exercise of revisional jurisdiction set aside the judgment and decree passed by the Lower Appellate. Court and decreed the suit‑‑‑Validity‑‑‑Supreme Court formulated the points for extending benefit of Ss.5 & 14, Limitation Act, 1908.

In order to determine as to whether the plaintiff was entitled to condonation of delay under section 5 read with section 14 of the Limitation Act, 1908 the following points are to be noted:‑‑

(i) The law on the point as to how forum of appeal in pre‑emption cases was to be determined, had not been firmly settled till recently. As one view was that the appellate forum will be regulated by the sale price of the subject-­matter of the suit while the other was that it depends on the valuation of land as determinable under the Suits Valuation Act and the rules thereunder.

(ii) At the time of filing the appeal in the High. Court no objection was raised by the office to the maintainability of the appeal.

(iii) No objection was taken from the side of the respondent in the High Court on account of jurisdictional value.

(iv) The High Court heard and decided the appeal on merits without noting the factum of jurisdictional value and competency of the appeal on that count.

(v) This point for the first time was noted in the Supreme Court and the case was remanded to the District Court as it was held that the appeal before the High Court was not competent as in view of the jurisdictional value fixed in the plaint it was competent before the District Court.

High Court had rightly reached at the conclusion in its judgment passed in exercise of revisional jurisdiction. Supreme Court declined to interfere with the judgment passed by High Court and appeal was dismissed.

1975 SCMR 259; PLD 1977 SC 102; PLD 1993 SC 385; 1984 SCMR 890; 1994 SCMR 1068; 1985 SCMR.333; 1988 SCMR 2; PLD 1991 SC 102; PLD 1991 SC 957; PLD 1992 SC 424; 1995 SCMR 584; 1998 SCMR 2296; PLD 2000 SC 94; PLD 2000 SC 941 and 1999 SCMR 1049 ref.

Munir Ahmed Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant, Muhammad Yaqoob Sindhu, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 22nd March, 2001.

2002 S C M R 422

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

MUHAMMAD ANWAR and others ‑‑‑Petitioners

versus

DEPUTY COMMISSIONER, FAISALABAD and others‑‑‑Respondents

Civil Petition No. 1217 of 2000, decided on 1st January, 2001.

(On appeal from the judgment dated 15‑5‑2000 passed by Lahore High Court, Lahore, passed in Writ Petition No. 5300 of 1989).

Punjab Alienation of Land Act (XIII of 1900)‑‑‑

‑‑‑‑S. 3(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sanction for permanent alienation‑‑‑Question of fact‑‑‑Dispute was with regard to grant of sanction for permanent alienation to the predecessor‑in‑interest of respondents by the Commissioner‑‑‑Validity‑‑‑Such question could only be determined by a forum competent to decide the same‑‑‑Supreme Court advised the petitioners to avail remedy before the appropriate forum for redressal of their grievance in accordance with law‑‑‑Petition was disposed of accordingly.

Ch. Qadir Bakhsh, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

S.M. Tayyab, Advocate Supreme Court‑and S. Abul Aasim Jafri, Advocate‑on‑Record for Respondents.

Date of hearing: 1st January, 2001.

2002 S C M R 424

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

Sahibzada MUHAMMAD MAHMOOD‑‑‑Petitioner

versus

DISTRICT RETURNING OFFICER/APPELLATE AUTHORITY, DISTRICT ATTOCK and 4 others‑‑‑Respondents

Civil Petition No. 1705 of 2001, decided on 25th June, 2001.

(On appeal from the judgment/order dated 11‑6‑2001 passed by Lahore High Court, Rawalpindi Bench in W. P. No. 1910 of 2001).

Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr.18(3) & 20‑‑‑Punjab Local Government Elections Ordinance (V of 2000), S.14‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Election‑‑‑Withdrawal of candidature‑‑‑Rejection of nomination papers‑‑­Returning Officer rejected the nomination papers of the candidate as his proposer was himself a candidate for the seat of Nazim‑‑‑Before the scrutiny, the proposer filed application for withdrawal of his nomination papers‑‑­Returning Officer as well as the District Returning Officer did not allow the proposer to withdraw his papers before scrutiny and consequently nomination papers of the candidate were also rejected‑‑‑High Court, in exercise of Constitutional jurisdiction, allowed the petition and the orders passed by the Authorities were set aside‑‑‑Validity‑‑‑No restraint/embargo existed either under the law or in the Rules for a candidate to withdraw his nomination paper before, scrutiny‑‑‑Where the proposer had withdrawn his candidature prior to the scrutiny same would not come in his way in proposing the candidate‑‑‑Supreme Court declined to interfere with the order passed by High Court‑‑‑Leave to appeal was refused.

Sahibzada Ahmad Raza Khan Qasuri, Advocate Supreme Court and Ch. Karam Elahi Bhatti, Advocate‑on‑Record for Petitioner.

M. Bilal, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 25th June, 2001.

2002 S C M R 426

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Tanvir Ahmed Khan, JJ

MUHAMMAD ALI and others‑‑‑Petitioners

versus

MUHAMMAD RAMZAN and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 275‑L of 1999, decided on 10th August, 2001.

(On appeal from the order dated 23‑12‑1998 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Civil Revision No. 496‑D of 1998/BWP).

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Inheritance‑‑­Children of predeceased daughter‑‑‑Principle settled by Federal Shariat Court in case titled Allah Rakha and others v. Federation of Pakistan and others reported as PLD 2000 FSC 1‑‑‑Applicability‑‑‑Respondents were children of predeceased daughter of the deceased predecessor‑in‑interest of the parties‑‑­Petitioners excluded the respondents from the mutation of inheritance‑‑‑Such mutation was assailed in civil suit which was decreed in favour of the respondents‑‑‑Lower Appellate Court maintained the judgment passed by the Trial Court and revision before High Court was also dismissed‑‑­Petitioners played a fraud while getting the mutation sanctioned in their favour and they intentionally and deliberately excluded the respondents‑‑­Validity‑‑‑Where the provision of S.4 of Muslim Family Laws Ordinance, 1961, was very much in the field at the time of attestation of mutation, the principle laid down in the judgment of FSC would not be applicable to the instant case as the judgment had to take effect from 31‑3‑2000‑‑‑Petitioners deliberately and knowingly got the names of the respondents omitted from the aforesaid mutation, such act on the part of the petitioners was not appreciated by Supreme Court‑‑‑Held: Appeal against the ji4dgment passed by Federal Shariat Court was pending adjudication before Supreme Court, the decision of the Federal Shariat Court would not be attracted till the disposal of the appeal‑‑‑Leave to appeal was refused.

Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 ref.

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

‑‑‑‑Art 203‑D(2)‑‑‑Decision of the Federal Shariat Court‑‑‑Declaring any law as repugnant to the Injunction of Islam‑‑‑Scope‑‑‑Such decision of Federal Shariat Court would take effect, if any, after the appeal pending before Supreme Court is disposed of.

Muhammad Ismail Qureshi, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 10th August, 2001.

2002 S C M R 429

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

MUHAMMAD HANIF and another‑‑‑Petitioners

versus

MUHAMMAD JAMIL TURK and 5 others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 27‑K of 2000, decided on 20th November, 2000.

(On appeal from the judgment of High Court of Sindh, Karachi, passed in F. R. A. No. 357 of 1997 on 10‑11‑1999).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑New plea on factual controversy‑‑‑Where a plea founded on factual controversy was neither raised in evidence nor agitated before Trial Court or High Court same could not be advanced before Supreme Court for the first time.

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

‑‑‑‑S. 15‑‑‑Ejectment application by co‑sharer‑‑‑Validity‑‑‑ o‑sharer can file ejectment proceedings against a tenant without impleading other co‑sharers as one co‑sharer acts on behalf of all the co‑owners of the property and represents their interest.

(c) Practice and procedure‑‑‑

‑‑‑‑Conflict in finding of Trial Court and Appellate Court‑‑‑Effect‑‑‑Finding of Appellate Court can only be discarded if it is not based on correct appreciation and analysis of evidence; or is contrary to material on record or is arbitrary or perverse on the face of it.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348 ref, (d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlords‑‑‑Rent Controller dismissed the ejectment application but the same was allowed by High Court‑‑‑Validity‑‑‑Evasive replies of tenant's witness as regards the bona fide requirement of the premises by landlords were adequate enough to warrant an inference that they failed to refute the plea advanced by the landlords‑‑‑Desire and need of landlords for additional accommodation for self‑occupation was not tainted with malice or ulterior motive‑‑‑Order of eviction of tenants from the premises, passed by High Court was neither illegal nor called for interference by Supreme Court in its Constitutional jurisdiction‑‑‑Leave to appeal was refused.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348; Mulakh Bano v. Gohar Bano 1976 SCMR 314 and Muhammad Amir v. Khan Bahadur PLD 1996 SC 267 distinguished.

Ali Akbar, Advocate Supreme Court/Advocate‑on‑Record for Petitioner.

Respondent No. 1 in person.

Date of hearing: 20th November, 2000.

2002 S C M R 433

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

G. ASGHAR MALIK ‑‑‑Appellant

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Appeal No.38 of 2001, decided on 26th April, 2001

(On appeal troth the order dated 4‑8‑2000 of the Federal Service Tribunal, Islamabad).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by‑Supreme Court to consider, whether in the circumstances the inquiry proceedings and the order of removal of civil servant from service were legal and maintainable.

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

‑‑‑S. 4‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.6‑‑‑Removal from service‑‑‑Failure to comply with the mandatory requirements of the provisions of Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Effect‑‑‑Evidence of witnesses sought to be produced against the civil servant was not recorded by the Inquiry Officer in presence of the civil servant‑‑‑Charges of corruption and malpractices were not proved and the National Accountability Bureau had finally decided to close its case against the civil servant exonerating him from all the charges including those in the charge‑sheet‑‑‑Order of removal from service passed by the Authorities was maintained by Service Tribunal‑‑‑Validity‑‑­Proceedings against the civil servant were conducted in violation of the principles and procedure laid down to regulate the inquiry proceedings under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Civil servant was deprived of his lawful right to cross‑examine the witness‑‑‑Findings of the Service Tribunal were not warranted by law and the same could not be allowed to hold the field‑‑‑Notification of removal from service and judgment passed by the Service Tribunal were set aside‑‑­Supreme Court remanded the case to the Authorities for fresh inquiry.

Hafiz Tariq Nasim, Advocate Supreme Court for Appellant.

Tanvir Bashir Ansari, D.A.‑G. for Respondents.

Dates of hearing: 25th and 26th April, 2001.

2002 S C M R 438

[Supreme Court of Pakistan]

Present : Rashid Aziz Khan, Rana Bhagwandas and Tanvir Ahmed Khan, JJ

M.D. CHAUDHARY, ADVOCATE SUPREME COURT‑‑‑Petitioner

versus

SUPERINTENDENT OF RANGE CRIME, LAHORE and others‑‑‑Respondents

Civil Petition No. 1381‑L of 2001, decided on 18th May, 2001.

(On appeal from the judgment/order dated 9‑4‑2001 passed by Lahore High Court, Lahore in W.P. No.5590/2001).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Witness‑‑‑Petitioner being a practising Advocate was engaged to the case and he himself went to the office of S.P. (Crimes) to convey the direction of the Special Curt for producing the record in the bail matter fixed on the next date‑‑‑Special Court on knowing about the said fact through the Investigating Officer found that the petitioner by such act had become a witness and, therefore, he was not competent to represent the accused‑‑‑Constitutional petition tiled by the petitioner against the said order was dismissed by the High Court by means of the impugned order‑‑‑Validity‑‑‑Petitioner only having conveyed the order of Special Court to the police for production of the record, he by no stretch of imagination, could be held to have become a witness in the case‑‑­Impugned order being against the facts as well as law could not be sustained and the same was set aside by converting the petition for leave to appeal into appeal.

Muhammad Arif, Advocate Supreme Court and Ch., Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Respondents Nos. 1 and 2 in person.

Miss Yasim Sehgal, A.A.‑G. for the State.

Respondent No.3 in person.

Dates of hearing 7th and 18th May, 2001.

2002 S C M R 440

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ

MUHAMMAD ISHAQ‑‑‑Petitioner

versus

MUHAMMAD NADEEM and another‑‑‑Respondents

Criminal Petition No. 16‑K of 2001, decided on 9th August, 2001, (On appeal from the judgment dated 26‑3‑2001 passed by High Court of Sindh, Karachi in Criminal Transfer Application No.36 of 2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.526‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Case had been transferred to the Court of juvenile offenders on the basis of Birth Certificate, School Leaving Certificate and Domicile Certificate of the accused‑‑‑Complainant had not challenged the genuineness and validity of the said documents before the Trial Court‑‑‑Mere assertion of the complainant before Supreme Court that the date of birth of accused as mentioned in the Certificates was not correct had no force‑‑‑View taken by the High Court that unless the said documents were held to be fraudulent or bogus they were to be relied upon, was proper in circumstances‑‑‑Leave to appeal was refused to the complainant by Supreme Court accordingly.

Ameer Azam Rizvi, Senior Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record for Petitioner.

Shahadat Awan, Advocate Supreme Court, Suleman Habibullah, D.A.‑G. and Faizanul Haq, Advocate‑on‑Record for Respondents.

Date of hearing: 9th August, 2001.

2002 S C M R 441

[Supreme Court of Pakistan]

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

MEHRBAN‑‑‑Petitioner

versus

MUHAMMAD RAMZAN and another‑‑‑Respondents

Criminal Petition No. 161‑L of 2000, decided on 7th November, 2000.

(On appeal from the order, dated 8‑3‑2000 of the Lahore High Court, Lahore passed in Criminal Appeal No.860 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused was only alleged to have made an extra‑judicial confession which was denied by him‑‑‑No other material was available on record to connect the accused with the commission of the offence‑‑Reasons advanced for acquittal of accused were valid and cogent which required no interference by Supreme Court‑‑‑Leave to appeal was refused to complainant accordingly.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Seerat Hussain Haqvi, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate‑on‑Record for Respondent No. l

Date of hearing: 7th November, 2000.

2002 S C M R 442

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

MUHAMMAD SIDDIQUE‑‑‑Petitioner

versus

IMTIAZ BEGUM and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.133 of 2001 in Criminal Review Petition No.Nil of 2001 in Criminal Petition for Leave to Appeal No.232 of 2000, decided on 6th June, 2001.

(On review from the judgment of this Court dated 26‑2‑2001 passed in Criminal Petition No.232 of 2000).

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

‑‑‑‑Ss. 497 & 498‑‑‑Bail in non‑bailable offences‑‑‑None can claim bail as of right in non‑bailable offences even though the same do not fall under the prohibitory clause of S.497, Cr.P.C.

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

‑‑‑‑S.497(5)‑‑‑Cancellation of bail‑‑‑Jurisdiction of Supreme Court ‑‑‑Scope‑‑­Supreme Court has ample powers to pass any appropriate order on bail cancellation application after taking into account the relevant material on record and need not remit the case to the Court whose order is impugned before it.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Divergent opinion of Investigating Officers ‑‑‑Effect‑‑­Where the report of second Investigating Officer connected the accused with the crime-- question of doubt could not be entertained at bail stage.

(d) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XXVI, R.1‑‑‑Constitution of Pakistan (1973), Art.188‑‑‑Review of Supreme Court judgment‑‑‑Discussing merits of the case‑‑‑Effect‑‑‑Neither the merits of the case could be agitated nor re‑argued in review‑‑‑Where the petitioner failed to refer any error apparent on the face of the, record, but rather discussed the merits of the case, the same was .not permissible‑‑­Review petition was dismissed.

Sh. Zamir Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing. 6th June, 2001.

2002 S C M R 445

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ

KHALID MAHMOOD and others‑‑‑Petitioners

versus

AHMAD NAWAZ and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.357‑L of 1998, decided on 23rd October, 2000.

(On appeal from the judgment, dated 16‑2‑1998 of the Lahore High Court, Lahore passed in R. S. A, No. 190 of 1985).

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

‑‑‑‑S.39‑‑Khasra Girdawari, entries in‑‑‑Rebuttal‑‑‑Where strong evidence of unimpeachable character to rebut is available, such entries are liable to be rebutted.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.13‑‑‑Constitution of Pakistan (1973) Art. 185(3)‑‑‑Pre‑emption suit‑‑­Plea of tenancy ‑‑‑Khasra Girdawari‑‑‑Proof of tenancy‑‑‑Failure to raise the plea of tenancy in written statement or during evidence ‑‑‑Effect‑‑‑Vendees did not state that they were holding the suit land as tenants or any portion thereof‑‑‑High Court did not err by holding that the plea of tenancy raised by the vendees through Khasra Girdawari could not be given effect to, since same had neither been raised in written statement nor in their evidence when they appeared as their own witnesses‑‑‑Suit was rightly decreed in favour of the pre‑emptors on the ground of superior right of pre‑emption‑‑‑Findings of facts recorded by High Court did not suffer from any illegality such as misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was refused.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioners.

Ch. Ghulam Hussain, Advocate Supreme Court and S.M. Tayyab, Advocate Supreme Court for Respondents.

Date of hearing: 23rd October, 2000.

2002 S C M R 447

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

GOVERNMENT OF SINDH‑‑‑Petitioner

versus

ZAFARUL ISLAM and others‑‑‑Respondents

Civil Petition No. 106‑K of 1995, decided on 2nd May, 1997.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.164(2)‑‑‑Evacuee Property and Displaced Persons‑ Laws (Repeal) Act (XIV of 1975), S.2 (2)‑‑Constitution of Pakistan (1973), Art.l85(3)‑‑ Allotment, cancellation of‑‑‑Past and closed transaction‑‑‑Revenue Authorities passed ex parte order under S.164(2) of West Pakistan Land Revenue Act, 1967, and cancelled the allotment made in favour of the predecessor‑in‑interest of the respondents‑‑‑High Court,, in exercise of Constitutional jurisdiction set aside the order passed by the Revenue Authorities‑‑‑Validity‑‑‑Where the entries in the Record‑of‑Rights had been made on the basis of allotment made under the Rehabilitation and Settlement Laws and the orders were past and closed transactions, no action could be taken under the purported exercise of jurisdiction tinder West Pakistan Land Revenue Act, 1967 which was prohibited by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Leave to appeal was refused.

Abdul Rahim Kazi, Advocate Supreme Court and M.S. Ghaury, Advocate‑on‑Record for Petitioners.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, A. Qadir Khan, Advocate and A. Aziz Khan, Advocate‑on‑Record for Respondents Nos. 1 to 6.

Ghiasuddin Mirza, Advocate‑on‑Record for the Interveners.

Date of hearing: 2nd May, 1997.

2002 S C M R 450

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Qazi Muhammad Farooq, JJ

HALA SPINNING MILLS LTD. ‑‑‑Appellant

versus

INTERNATIONAL FINANCE CORPORATION

and another‑‑‑Respondents

Civil Appeal No. 1528 of 1999, decided on 6th June, 2001.

(On appeal from the order, dated 23‑12‑1999 passed by Lahore High Court, Lahore in Civil Original No.26 of 1996).

(a) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 305 & 306‑‑‑Winding‑up of company while in running condition‑‑­Duty of Company Judge‑‑‑Whenever case of a running company is placed before Company Judge or Appellate Court, they should examine such matter differently from a company which is not in a running condition‑‑‑Supreme Court observed that in such a case efforts should be made by judicial forums to adopt such a device so that the project may continue running commercially and its financial liabilities start reducing gradually; business trend in the market being that if running concern is put to sale, it fetches high price of its assets which can substantially clear proportionate liability of the creditors.

(b) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 451, 452 & 456‑‑‑Foreign company‑‑‑Institution of legal proceedings‑‑‑ Conditions‑‑‑Foreign company cannot institute legal proceedings without fulfilling requirements of Ss.451 & 452 of Companies Ordinance, 1984.

(c) Companies Ordnance (XLVII of 1984)---­

-----‑S. 306(1)(a)‑‑‑International Finance Corporation Act (XXVII of 1956), S.5 & Sched., Art.VI‑‑‑Winding‑up proceedings‑‑‑Statutory Corporation recognized in Pakistan by International Finance Corporation Act, 1956‑‑­Initiation of winding‑up proceedings by such Corporation‑‑‑Validity‑‑‑Such Corporation enjoyed the status of Corporation possessing full juridical personality particularly empowered to contract; to acquire and dispose of immovable property and to institute legal proceedings‑‑‑Legal proceedings for winding‑up of a company registered under Companies Ordinance, 1984, could be initiated by a creditor by assignment or otherwise to whom the company was indebted in a sum exceeding one per cent. of its paid‑up capital or fifty thousand rupees whichever was less than due, under the provisions of S.306(1)(a) of Companies Ordinance, 1984‑‑‑Where the foreign Corporation was the creditor of the company to be wound up and it had extended credit to the company which was more than Rs.50,000, therefore, after completion of the formalities, the foreign Corporation had a right to pray for the winding‑up of the company in circumstances.

(d) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 305‑‑‑Winding‑up proceedings‑‑‑Defence‑‑‑Where such proceedings are instituted against a company, same are defended on the pretext that there is a bona fide dispute with regard to debts outstanding against it, therefore, winding‑up order cannot he passed against it.

Messrs Sindh Glass. Industries Ltd. Karachi v. National Development Finance Corporation and 2 others PLD 1996 SC 601 ref.

(e) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S.305‑‑‑West Pakistan Usurious Loans Ordinance (XVIII of 1959), Preamble ‑‑‑Widing7up proceedings‑‑‑Provisions of West Pakistan Usurious Loans Ordinance, 1959‑‑‑Applicability‑‑‑Provisions of the West Pakistan Usurious Loans Ordinance, 1959 cannot be pressed into service in the proceedings relating to winding‑up of a company.

(f) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss.10(1), 230, 233 & 305‑‑‑Appeal‑‑‑Winding‑up‑ petition‑‑‑Exercise of discretion by Company Judge‑‑‑Material to be considered‑‑‑Scope‑‑‑Properly maintained accounts and statement of accounts as well as balance‑sheet duly audited by the auditors of company in terms of Ss.230 & 233 of Companies Ordinance, 1984, could be considered material documents to exercise discretion either to allow petition for winding‑up or to reject the same subject to true depiction of financial condition of the company‑‑‑On the basis of statement of accounts and balance‑sheet duly audited by the auditor of the company opinion could be formed that the company was financially solvent to clear its liability or otherwise‑‑‑Company was not commercially solvent concern, notwithstanding the fact that presently it was in a running condition but as per up‑to‑date reports of auditor, the company was running in a loss and its liabilities were increasing day by day, therefore, the company was not in a position to clear its liabilities which it owed towards the institutions which had provided financial accommodation to it from time to time‑‑‑Opinion formed by Company Judge in his judgment that it was just and equitable to wind up the company was not interfered with by the Supreme Court.

Messrs Sindh Glass Industries Ltd., Karachi v. National Development Finance Corporation and 2 others PLD 1996 SC 601; Messrs Ali Woollen Mills Ltd. v. Industrial Development Bank of Pakistan PLD 1990 SC 763: Trade and Industry Publications Limited v. Industrial Development Bank of Pakistan PLD 1990 SC 768 and Messrs Sindh Technical Industries Limited v. Messrs Investment Corporation of Pakistan 1998 SCMR 1533 ref.

(g) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 305‑‑Winding‑up of company‑‑‑Pre‑conditions‑‑‑Where it is impossible to carry on business of company except at loss and there is no reasonable hope that the object of trading at profit can be achieved and probable assets are insufficient to meet the existing liability, then winding‑up of company becomes inevitable.

(h) Companies Ordinance (XLVII of 1984)----

‑‑‑‑S. 305‑‑‑Winding‑up proceedings‑‑‑Honest and bona fide dispute‑‑­Scope‑‑‑Where the company under the winding‑up proceedings failed to establish the honest and bona fide dispute, it was in the interest of the creditors that the company should be wound up.

Messrs Sindh Glass Industries Ltd., Karachi v. National Development Finance Corporation and 2 others PLD 1996 SC 601 fol.

(i) Companies Ordinance (XLVII of 1984)‑‑‑

-----Ss. 305 & 306(1)(a)‑‑‑Winding‑up application‑‑‑Failure to join hands by all creditors‑‑‑Effect‑‑‑Where the applicant‑creditor had its debts more than fifty thousand rupees, such creditor did not require other creditors to join hands with the applicant.

(j) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑S.305‑‑‑State Bank of Pakistan Circular No.19 (Banking Policy and Regulation Department)‑‑‑Winding‑up proceedings‑‑‑State Bank of Pakistan‑‑‑Circular No.19 (Banking Policy and Regulation. Department)‑‑­ Effect‑‑‑Circular cannot be considered a document to override provisions of S.305 of Companies Ordinance, 1984, and on account of issuance of scheme under the circular the winding‑up proceedings are not liable to be postponed.

Umar Atta Bandial, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellant.

Dr. Pervez Haasan, Senior Advocate Supreme Court, M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on-­Record for Respondents.

Dates of hearing: 2nd to 4th May, 2001.

2002 S C M R 468

[Supreme of Pakistan]

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

ABDUL HAMID MIAN‑‑‑Petitioner

versus

MUHAMMAD NAWAZ KASURI‑‑‑Respondent's

Criminal Petition for Leave to Appeal No.186‑L of 1999, decided on 26th, May, 2000.

(On appeal from the judgment, dated 15‑3‑1999 of the Lahore High Court, Lahore passed in Criminal Revision Petition No.228 of 1998).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540, 241‑A & 94‑‑‑Penal Code (XLV of 1860), Ss. 497 & 498 [since repealed]‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Production of documents‑‑‑Complainant while making his statement in his private complaint wanted to bring on record a number of documents, but the Trial Court returned the documents by observing that the same were not relevant----Complainant then filed an application in which 22 documents were listed which he wanted to be received in evidence‑‑‑Trial Court dismissed the said application against which a revision petition filed by the complainant had also been dismissed by the High Court through the impugned judgment‑‑­View taken by Trial Court that the only provision in the Criminal Procedure Code as regards production of additional evidence was S. 540, Cr.P.C. as such the documents could not be allowed to be produced, amounted to refusal to exercise jurisdiction otherwise vested in the Court‑‑‑Provisions of the Criminal Procedure Code such as S.241‑A, Cr.P.C. under which the complainant could rely on documents, had been added through amendment in the year 1972 after the tiling of the complaint, therefore it was unjust to hold that the complainant was debarred from producing documents at a subsequent stage, because when the complaint was filed the complainant was not required to attach all the documents alongwith it, therefore, his omission to file the same at that point of time could not by itself be used against him to hold him responsible for not producing the documents at the relevant time as required by law‑‑‑Insertion of S.241‑A, Cr.P.C. enabled the complainant to file documentary evidence with complaint with the only requirement that he would supply the copies of the same to the accused‑‑‑Chapter VII of the Code of Criminal Procedure, particularly its S.94 had revealed that the Court was vested with the power to entertain and allow production of documentary evidence during the trial, inquiry etc., therefore it was not correct that the only provision in the Criminal Procedure Code empowering the Court to record additional evidence by recalling witness was S.540, Cr.P.C., which had resulted in failure of the Court to exercise jurisdiction vested in it under the law‑‑‑Recording of objection of the defence counsel in the proceedings that documents sought to be produced were inadmissible did not amount to an order passed by the Court as it did not record its findings holding the said documents to be inadmissible or irrelevant‑‑‑Assumption by High Court that the same was an order which had attained finality, therefore, was not tenable‑‑‑Case of the complainant regarding production of the documents in question in evidence had not received proper adjudication about their admissibility and relevancy by the Courts below‑‑‑Petition for leave to appeal was converted into appeal in circumstances by the Supreme Court and the aforesaid observation of the Trial Court and the impugned judgment of the High Court were set aside with the direction to the Trial Court to decide afresh the request of the complainant as regards production in evidence of the documents in the light of the observations made by Supreme Court and thereafter to proceed with the case.

Birjees Nagi, Advocate Supreme Court for Petitioner.

S.M. Nazim, Advocate Supreme Court for Respondent.

Date of hearing: 26th May, 2000.

2002 S C M R 473

[Supreme Court of Pakistan]

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

MUHAMMAD ITTAYYAT KHAN---Petitioner

versus

Mst. REHMAT KHATOON and others---Respondents

Civil Petition for Leave to Appeal No.307-K of 2001, decided on 22nd June, 2001.

(On appeal from the judgment/order, dated 22-2-2001, of the High Court of Sindh, at Sukkur, passed in Civil Revision No. 15 of 1991).

(a) Arbitration Act (X of 1940)---

----Ss. 21 & 30---Constitution of Pakistan (1973), Art. 185(3)---Arbitration--­Award, making same rule of Court---Sole arbitrator was appointed with consent of the parties---Arbitrator, after making necessary inquiries and hearing the parties gave his award and the same was made rule of the Court---No allegations of misconduct or that the award was improperly procured were on the record---Notices were duly issued to the parties and counsel of both the parties appeared in the Trial Court---Arbitrator heard the parties and their elders so that there should be permanent settlement of the dispute between the parties, who were related inter se---Both the Courts below and High Court as well had considered the evidence in its proper perspective---Effect---No misreading or non-reading of evidence, or misconstruction of law having been found and there being concurrent findings of Courts below, Supreme Court declined to interfere with such judgments---Leave to appeal was refused.

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

----Art.185(3)---Petition for leave to appeal---No question of public importance was involved in the case---Supreme Court declined to exercise its jurisdiction under Art. 185(3) of the Constitution.

Rao Shakir H. Naqshbandi, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Date of hearing: 22nd June, 2001.

2002 S C M R 476

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ

Messrs SIMNWA POLYPROPYLENE (PVT.) LTD. and others---Petitioners

versus

Messrs NATIONAL BANK OF PAKISTAN---Respondent

Civil Petition for Leave to Appeal No.2590-L of 2000, decided on 23rd November, 2000.

(On appeal from the judgment dated 19-9-2000 of the Lahore High Court passed in R. F. A. No. 172 of 2000).

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

--S.9---Constitution of Pakistan (1973), Art. 185(3)---Suit for recovery of loan---Application for leave to defend---Limitation---Computation---Service to defendant was made through three modes viz. through publication in newspaper on 2-6-2000; through registered post acknowledgement due on 1-6-2000 and through bailiff of the Court on 15-6-2000---Banning Court computed period of limitation from publication in newspaper and dismissed application for leave to defend being time-barred---Appeal before High Court was also dismissed---Contention of the defendant was that for purpose of computing the period of limitation, the service effected through bailiff of the Court should be taken into consideration and not the other modes as the former was comparatively more valid having been made in the prescribed manner---Validity---Service in any of the modes prescribed in S.9(3) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was deemed to be valid for the purpose---Contention of the defendant that the latest mode should be taken into consideration for computing the period of limitation and not the other, had no force--­Judgments passed by both the Courts below not suffering from any illegality, leave to appeal was refused.

Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353 and Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 ref.

M. Abbas Mirza, Advocate Supreme Court for Petitioners.

Ali Ahmad Awan, Advocate Supreme Court for Respondent.

Date of hearing: 23rd November, 2000.

2002 S C M R 479

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Tanvir Ahmed Khan, JJ

Hafiz MAHBOOB ELAHI---Petitioner

versus

AHMAD KHAN alias KHANU and another---Respondents

Criminal Petition for Leave to Appeal No.692-L of 2000, decided on 2nd April, 2001.

(On appeal from the judgment, dated 27-11-2000 of the Lahore High Court, Lahore, passed in Criminal Appeal No.251 of 1995 with Murder Reference No. 107 of 1995).

Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Sentence, alteration of---Death sentence awarded to the accused by the Trial Court was altered into imprisonment for life by the High Court in appeal---Complainant had filed petition for leave to appeal against the judgment of the High Court on the ground that it was a cold-blooded murder which warranted maximum penalty---Lesser sentence was awarded by the High Court on the ground that occurrence had taken place in a district where people normally carried guns and such-like' instances did take place there---Leave to appeal was granted by Supreme Court to consider as to whether the observations of the High Court could be treated as a mitigating circumstance for awarding lesser sentence.

Yousuf Kazmi with Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2001.

2002SCMR480

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Javed Iqbal, JJ

MUHAMMAD SHAM‑‑‑Appellant

versus

Haji SHAISTA KHAN‑‑‑Respondent

Civil Appeals Nos. 1500 and 1501 of 1996, decided on 8th June, 2001.

(On appeal from the judgment, dated 27‑2‑1996 of the High Court of Balochistan, Quetta passed in F. A. O. Nos. 16 and 17 of 1993).

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

‑‑‑‑Ss. 13 & 14‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the subsequent application for eviction filed by the landlord before Rent Controller on the ground of personal and bona fide requirement of the premises was barred on the principle of res judicata contained in S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959, as the previous application filed by the landlord for eviction of tenant from the premises on the ground of personal and bona fide requirement was dismissed on merits which attained finality.

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

‑‑‑‑S.14‑‑‑Second eviction application‑‑‑Bar contained in S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Applicability‑‑‑Previous order of Rent Controller that the premises was not required for personal‑bona fide use would not constitute a bar as contained in S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959, for filing of fresh eviction application which would be examined in the light of changed scenario and decided on its own merits as the circumstances cannot remain static and unchanged for an indefinite period which cannot be ignored and thus the repeated and successive eviction applications can be filed subject to the availability of changed situation.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.14‑‑‑Subsequent eviction application‑‑‑Maintainability‑‑‑Where first application was filed on personal bona fide use regarding the premises but subsequently‑ another eviction application was moved on the main ground of reconstruction coupled with personal bona fide use of the premises, subsequent eviction application was maintainable in circumstances.

Dost Muhammad v. Muhammad Shabbir Hussain 1981 SCMR 528 and Malal Khan v. Mir Hassan 1980 CLC 1422 ref.

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

‑‑‑‑Ss. 13 & 14‑‑‑Subsequent eviction application ‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Rejection of an earlier application did not always act as bar under S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959, even in cases where eviction was sought for reconstruction as every fresh need or desire to reconstruct would give a fresh cause of action‑‑‑Law of constructive res judicata as enunciated by S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959, would only apply when on identical reasons and in identical circumstances, after the earlier unsuccessful attempt, the ejectment of tenant was subsequently, once again sought.

Bashirud Din v. Additional District Judge PLD 1985 SC 220 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13-‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord and reconstruction of .premises are the grounds which are ever recurring.

Muhammad Rafiq v. Khalid Rauf 1984 CLC 2135 ref.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑S.13(2)(vi)‑‑‑Reconstruction of premises‑‑‑Proof‑‑‑Not obligatory for landlord to prove that the premises were in dilapidated condition and no such embargo had been laid down in S,13(2)(vi) of West Pakistan Urban Rent Restriction Ordinance, 1959, to prove the dilapidated condition of the premises‑‑‑Desire of the landlord to reconstruct and trot the condition of the building is relevant for the decision when the vacation of property is sought by the landlord, for reconstruction of the same.

(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(2)(vi & 14‑‑‑Subsequent eviction application‑‑‑Principle of res judicata‑‑‑Applicability‑‑‑Reconstruction of premises, plea of ‑‑‑Earlier eviction application of landlord was dismissed by Rent Controller and subsequently another application was filed on the ground of personal need and reconstruction of premises‑‑‑Rent Controller allowed the application and the order of eviction was maintained by the High Court‑‑‑Contention of the tenant was that the principle of constructive res judicata was applicable‑---Validity‑‑‑Where it was established that intention behind the institution of later application was bona fide, bar of S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959, would not come into play as the landlord who failed to establish good faith on his part of genuine need to reconstruct in moving the earlier application could not be said not to have bona fide need to do the same after efflux of time in case he successfully established his bona tide intention‑‑‑Landlord having established his bona fide need of the premises for reconstruction order of ejectment was maintained.

Maula Bakhsh v. Fazal Din PLD 1982 SC 201; Rehmat Shah v. Amir Gul 1995 SCMR 139; Altaf Hussain v. Nuzhat‑un‑Nisa PLD 2000 SC 67; Malal Khan v. Mir Hassan 1980 CLC 1422 and Muhammad Rafiq v. Khalid Rauf 1984 CLC 2135 ref.

Tahir Muhammad Khan, Advocate Supreme Court for Appellant.

M. K. N., Kohli, Advocate‑on‑Record for Respondent

Date of hearing: 8th June, 2001.

2002 S C M R 492

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

Mehr GHULAM DASTGIR LAK‑‑‑Appellant

versus

MUREED SULTAN and another‑‑‑Respondents

Criminal Appeal No. 575 of 2001, decided on 30th October, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 9‑5‑2000, passed in Criminal Appeal No. 777 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324 & 337‑F(v)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to the complainant to reappraise the entire evidence in the interest of safe dispensation of criminal justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324 & 337‑F(v)‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal against acquittal‑‑‑Appraisal of evidence ‑‑‑F.I.R. was lodged very promptly in which the role attributed to accused and the presence of the prosecution witnesses, who had apprehended the accused at the spot, was mentioned‑‑­Site plan prepared by the police had supported the prosecution case‑‑­Accused having been annoyed with the complainant who had inquired from him regarding the account of expenditure of Rs.25,000, had fired at the complainant with Kalashnikov‑‑‑Eye‑witnesses who were quite independent and natural witnesses and had no bias, grudge or enmity against the accused, had given cogent reasons for their presence at the place of occurrence and made statements in conformity with the circumstances of the prosecution case which was supported also by medical evidence‑‑‑High Court had acquitted the accused on conjectures and surmises‑‑‑Impugned judgment of High Court was set aside in circumstances and the accused was convicted under Ss.324 & 337‑F(v), P.P.C. and sentenced to 7 years' R.I. with fine‑‑‑Benefit of S.382‑B, Cr.P.C. was extended to the accused.

Ahmad Awais, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellant.

Mian Abdul Qayyum, Advocate Supreme Court for Respondent No. 1.

Arshad Ali, Advocate Supreme Court for Respondent No.2.

Date of hearing: 30th October, 2001.

2002 S C M R 496

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

PAKISTAN INDUSTRIAL CREDIT AND

INVESTMENT CORPORATION LIMITED, PESHAWAR CANTT and others‑‑‑Appellants

versus

GOVERNMENT OF PAKISTAN through Collector

Customs, Customs House, Jamrud Road, Peshawar and others‑‑‑Respondents

arid 898 of 1999, decided on 29th May, 2001.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 10‑9‑1998 passed in Civil Revisions Nos.207 and 208 of 1998).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Where question of general importance was raised by the petitioner‑‑‑Leave to appeal was granted by Supreme Court to consider the same.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

------S.5.---Judge of High Court acting as Banking Court‑‑‑Effect‑‑‑When a Judge of High Court is nominated by Chief Justice for expeditious disposal of the cases under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, such Judge acts as Banking Court and any order passed by him as such Court is in the capacity of a Banking Court and not the High Court in its ordinary jurisdiction.

Pakistan Fisheries Limited v. United Bank Limited PLD 1993 SC 109; Messrs Tank Steel and Re‑Rolling Mills (Pvt.) Limited, Dera Ismail Khan and others v. Federation of Pakistan PLD 1996 SC 77 and Messrs Tri-­Star Polyester Limited and another v. Citibank 2001 SCMR 410 ref.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑‑

‑‑‑‑S.18(6)(a)‑‑‑Civil Procedure, Code (V of 1908), Preamble‑‑‑Investigation of claims‑‑‑Provisions of Civil Procedure Code, 1908‑‑‑Applicability‑‑­Objections in respect of attachment of any property whether mortgaged, pledged or not, could be filed under the provisions of S.18(6)(a) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and not under the C.P.C. as the provisions of the C.P.C. have been excluded by the non obstante clause of its subsection.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑S.18(5)(6)‑‑‑Execution of decree‑‑‑Objection petition filing of‑‑­Investigation of claim regarding attached property‑‑‑Remedy against‑‑­Where objection petitions are filed under S.18(6) of the Banking Companies (Recovery of Loans. Advances. Credits and Finances) Act, 1997, orders passed thereon would be appealable under S.18(5) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

(e) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S.18(6)‑‑‑Civil Procedure Code (V of 1908), S.73‑‑‑Proceeds of execution‑sale‑‑; Ratable distribution‑‑‑Principles‑‑‑For ratable distribution, it is necessary that the assets must be held by the Court, there should be more than one person who have money decrees in their favour against the same judgment‑debtor and application should be made before the receipt of assets by the executing Court.

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

‑‑‑‑S.18(6)‑-‑Civil Procedure Code (V of 1908), Ss.2(2)(3) & 73‑‑‑Payment of Wages Act (IV of 1936), S.15‑‑‑Proceeds of execution‑sale‑‑‑Ratable distribution‑‑‑Suit for recovery of Bank loan was decreed in favour of the financial institution‑‑‑Banking Court, at the time of execution of the decree entertained two applications for ratable distribution of the proceeds of execution‑sale‑‑‑One application was filed by a labour leader who was a decree‑holder from Authority under the Payment of Wages Act, 1936, and the second application was filed by Customs Authorities on the basis of protection provided under S.73(3), C.P.C.‑‑‑Revision against the order passed by Judge of High Court as Banking Court was dismissed by Division Bench of High Court‑‑‑Plea raised by the decree‑holder was that the objectors were not decree‑holders within the meaning of S.2(3), C.P.C., therefore, they could not invoke provisions of S.73, C.P.C.‑‑‑Validity‑‑­Division Bench of High Court, in the present case, did not ascertain as to whether the application qualified the requirements of S.73, C.P.C.‑‑­Objectors were not decree‑holders as no decree had been passed by any Court in their favour‑‑‑Direction/order issued by the Authority under the Payment of Wags Act, 1936, for the recovery of wages was not a decree within the meaning of S.2(2), C.P.C. and as such, application could not be treated to be an application under S.73, C.P.C.‑‑‑Such objectors could only resort to execute the order of the Authority in the manner prescribed in the Payment of Wages Act, 1936 itself‑‑‑Order passed by the Division Bench of High Court was set aside and the case was remanded to the Division Bench of High Court for decision afresh.

Raja Muhammad Akram, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant (in both Appeals).

Muhammad Nawaz Bhatti, D.A.‑G. (on Notice).

K.G Saber, Advocate‑on‑Record for Respondents Nos.1 and 2 (in C.A. No.897 of 1999).

Respondent No.3: Ex pane (in CA. No. 897 of 1999). .

Jehanzeb Rahim, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents Nos. l and 2 (in C. A. No. 898 of 1999).

Respondent No. 3: Ex parte (in C. A. No. 898 of 1999).

Date of hearing: 29th May, 2001.

2002 S C M R 504

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ

ABDUL HAKIM HASHMI‑‑‑Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION

through Chairman and 8 others‑‑‑Respondents

Civil Petition No. 3137 of 2001, decided on 29th November, 2001.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 26‑9‑2001 passed in Writ Petition No.869/2001).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Subsequent Constitutional petition on same subject‑‑‑Decision thereof by a different Bench‑‑‑Validity‑‑‑Facts relating to earlier Constitutional petition as given in impugned judgment were indicative of the fact that later Bench of High Court was conscious of the fact of earlier Constitutional petition and the judgment given therein‑‑­Later Bench after considering all such facts had decided subsequent Constitutional petition, and thus, no prejudice had been caused to petitioner by decision of subsequent Constitutional petition by a different Bench.

(b) Rules of Competitive Examination, 1999‑‑‑

‑‑‑‑R. 7(viii)‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑­Constitutional petition‑‑‑Re‑checking/re‑evaluation of answer book‑‑‑Answer books are secret documents, which cannot be seen by the candidates or their representatives nor re‑examination thereof can be allowed in any circumstance‑‑‑Marking of numbers on the answer book was a technical job which High Court was not expected to undertake in exercise of its powers of judicial review under Art. 199 of the Constitution‑‑‑High Court in Constitutional jurisdiction, cannot go beyond the scope of prescribed Rules regarding re‑examination/re‑evaluation of answer books‑‑‑Supreme Court has disapproved the practice of summoning answer books by High Court in its Constitutional jurisdiction.

Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education, Sargodha and others 1996 SCMR 1872 ref.

Syed Naeem Bokhari, Advocate Supreme Court and Mehr Khan Malik, Advocate‑ on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 29th November, 2001.

2002 S C .M R 510

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and

Hamid Ali Mirza, JJ

FEDERATION OF PAKISTAN and others‑‑‑Appellants

versus

AMMAR TEXTILE MILLS (PVT.) LIMITED and others‑‑‑Respondents

Civil Appeals Nos.44 to 46 of 2001 and 1205 of 1997, decided on 29th August, 2001.

(On appeal from the judgment dated 2‑10‑2000 and 17‑12‑1996 in I. C. As. Nos. 758, 759, 760 of 1999 and C. P. No. 1384 of 1994).

(a) Textile Export Quota‑‑‑

‑‑‑‑ Textile Export Quota for the year 1994‑‑‑Notification S.R.O. No.166(1)/92, dated 7‑3‑1992‑‑‑Notification S.R.O. No.228(I)/94, dated 8‑3‑1994‑‑‑Procedure for allocation of Textile Export Quota‑‑‑Two Notifications in field‑‑‑Notification S.R.O. No.228(1)/94, dated 8‑3‑1994, was issued in supersession of the earlier Notification S.R.O. No.166(I)/92, dated 7‑3‑1992, for determining entitlement for allocation of Textile Export Quota for the y1994, the Notification dated 7‑3‑1992 was not in existence with effect from 8‑3‑1994, thus the procedure for the allocation of the quota for the year 1994 had to be followed as per later Notification dated 8‑3‑1994.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Words employed in a statute‑‑‑Interpretation of such words‑‑‑Each word employed in a statute has to be read and understood in its ordinary meaning without assigning special meaning to any part thereof to avoid inconsistency in its different parts and also to ensure harmony therein.

(c) Notification‑‑‑

‑‑‑‑ Time‑bound Notification‑‑‑Rescinding of such Notification by Competent Authority‑‑‑Time‑bound Notification, no doubt, at times becomes difficult for the Competent Authority to rescind before the expiry of such period particularly when claim of vested right is pleaded but the Government can overcome such hurdle by exercising authority of review of the Policy if the same has been retained by it in the same Notification simultaneously caring for the rights of the beneficiaries.

(d) Textile Export Quota‑‑‑

-‑‑‑Textile Export Quota for the year 1994‑‑‑Notification S.R.O. No.166(I)/92, dated 7‑3‑1992‑‑‑Notification S.R.O. No.228(I)/94, dated 8‑3‑1994‑‑‑Procedure for allocation of Textile Export Quota‑‑‑Changing the procedure on the recommendation of Pakistan Readymade Garments Manufacturers and Exporters Association‑‑‑Plea raised by the appellants was that the policy was against the doctrine of Promissory Estoppel ‑‑‑Validity‑‑­Where in changing the procedure for allocating Textile Quota, Federal Government exercised jurisdiction under S.13 of Notification S.R.O. No.166(I)/92, dated 7‑3‑1992, such action of the Government could not be annulled by invoking doctrine of Promissory Estoppel ‑‑‑Change in the procedure for allocating Textile Quota could not be questioned by individuals because they had no right to direct the Government to adopt a procedure which suited them‑‑‑Appellants, in the present case, had not challenged the vires of the subsequent Notification S.R.O. No.228(I)/94, dated 8‑3‑1994, which had been issued in supersession of the earlier Notification S.R.O. No.166(I)/92, dated 7‑3‑1992, therefore, Supreme Court declined to declare the subsequent Notification as illegal or without lawful authority and the individual exporters could not attach legitimate expectancy that Textile Quota for the year 1994 must be allocated to them in view of the formula envisaged in Notification dated 7‑3‑1992.

Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546; Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan 1992 SCMR 1652; Messrs Gadoon Textile Mills Limited and 814 others v. WAPDA and others 1997 SCMR 641; Messrs M.Y. Electronics Industries (Pvt.) Limited through Manager v. Government of Pakistan through Secretary Finance and 2 others 1998 SCMR 1404; Collector of Customs and others v. Ravi Shipping Limited and others 1999 SCMR 412; Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Fecto Belarus Tractors Limited 2000 SCMR 112; 2001 PTD 1829; PLD 1965 (W.P. Pesh. 47 and PLD 1970 SC 439 ref.

(e) Notification‑‑‑

‑‑‑‑ Retrospective operation of notification‑‑‑Notification altering procedure of doing certain thing would operate retrospectively.

Malik 'Gul Hassan Khan v. Allied Bank of Pakistan 1996 SCMR 237 ref.

(f) General Clauses Act (X of 1897)‑‑

‑‑‑‑S. 21‑‑‑Authority of Government to amend, vary or rescind a ‑‑Validity‑‑‑Such authority of Government regarding a Notification cannot be denied in view of S.21 of General Clauses Act, 1897.

(g) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 160(1)(b)‑‑‑Notification S.R.O. No.166(I)/92, dated 7‑3‑1992—­Notification S.R.O. No. 228(1)/94, dated 8‑3‑1994‑‑‑Textile Export Quota for the year 1994‑‑‑Special meeting‑‑‑Failure to convene such meeting to discuss New Textile Quota Management Policy‑‑‑Notice for convening special meeting to discuss the details of the Policy and two other items was duly received by the appellants‑‑‑Meeting so held was attended by the appellants and the other members and through balloting procedure for allocation of the quota was adopted‑‑‑Validity‑‑‑Provisions of S.160(1)(b) of the Companies Ordinance, 1984, were not contravened in circumstances.

(h) Estoppel‑‑‑

‑‑‑‑Promissory estoppel, doctrine of‑‑‑Invoking of the doctrine‑‑­Conditions necessary for invocation of doctrine of promissory estoppel stated.

Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546 rel.

Khalid Anwar, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants.

Sheikh Abdul Manan, Advocate Supreme Court and Mehr Khan Malik, Advocate‑ on‑Record for Respondents.

Haider Ali Pirzada, Senior Advocate Supreme Court and Abdul Aziz Khan, Advocate‑ on‑Record (absent) for Appellants (in C.A. No.1205 of 1997).

M. Nawaz Bhatti, Deputy A.‑G,, Ch. Akhtar Ali, Advocate‑on­-Record and Ahmed Ullah Farooqi, Advocate‑on‑Record (absent) for Respondents (in C. A. No. 1205 of 1997).

Date of hearing: 14th June, 2001.

2002 S C M R 526

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and

Qazi Muhammad Farooq, JJ

MUHAMMAD AKRAM and others‑‑‑Petitioners

versus

SARDAR MUHAMMAD and another‑‑‑Respondents

Civil Review Petitions Nos. 12 and 13 of 2000 in Civil Petitions for Leave to Appeal Nos. 130 and 131‑L of 2000, decided on 16th November, 2001.

(On review of the judgment dated 25‑1‑2000, passed by this Court).

Adjournment‑‑‑

‑‑‑‑ Counsel seeking adjournment on the ground of his personal engagement‑‑‑Validity‑‑‑Personal engagement of a counsel could not be given preference to his professional duties towards the Court.

Petitioner No.2 in person.

N .A. Butt, Advocate Supreme Court for Respondent No. 1.

Date of hearing 16th November, 2001.

2002 S C M R 527

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Javed Iqbal and

Hamid Ali Mirza, JJ

COMMISSIONER OF INCOME‑TAX, COMPANIES ZONE‑II, KARACHI‑‑‑Appellant

versus

Messrs SINDH ENGINEERING (PVT.) LIMITED, KARACHI‑‑‑Respondent

Civil Appeals Nos.984 to 990 of 1999, decided on 4th October, 2001.

(On appeal from the judgment dated 23‑10‑1998 passed by the High Court of Sindh, Karachi in I.T.Cs. Nos.298 to 301, 325, 327 and 329 of 1990).

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

‑‑‑‑S. 65 read with First Sched., Part IV, Para. B(1) & S.136(2)‑‑‑Income­tax Act (XI of 1922), S.23(3)‑‑‑Re‑opening of assessment ‑‑‑Assessee was initially assessed as public company entitled to 5 % rebate of super‑tax‑‑­Subsequently, it transpired, that assessee was not a public company as majority of its shares were not held by Government and tax charged from the assessee was too low comparing to the private limited companies, thus, additional assessment notices were issued calling upon the assessee to make payment of difference of the tax‑‑‑Commissioner of Income‑tax concurred with the conclusion of successor Assessing Officer that assessee was not a public company, while Income‑tax Appellate Tribunal had found otherwise by relying on its earlier judgments‑‑‑ Commissioner filed appeal before High Court, which was dismissed‑‑‑ Validity‑‑‑Tribunal had presumed the assessee to be a public company without assigning any reason therefor in absence of which benefit of doubt could not be extended to consider the same to be a ‑public company‑‑‑Tribunal was bound either to disclose facts and reasons of earlier judgments on which it had placed reliance or examine the case of assessee independently‑‑‑Question of non‑exercise of jurisdiction by Tribunal being a question of law was liable to be answered by High Court but the High Court had failed to do so‑‑‑While making original assessment, assessee had consciously neither disclosed nor brought on record any material entitling it to claim additional relief of rebate‑‑‑Correct position of shares of Government could be ascertained by producing authenticated documents or sending for it from office of Joint Stock Companies, but Tribunal neither cared to call for such record or get the same placed on record nor High Court examined such aspect of the case by remanding the case to Tribunal for its decision in accordance with law‑‑‑In absence of any such material, reversal of decision of successor Assessing Officer was neither legal nor just nor proper‑‑‑Tribunal had not exercised its jurisdiction in accordance with law‑‑­Supreme Court allowed the appeals and remanded the case to Tribunal for decision of question, whether assessee organization was a public company in terms of Para. B(1), Part IV of First Sched. to the Ordinance.

I.T.As. Nos.1872 to 1875/KB of 1987‑88; Oriental Investment Co. Ltd. v. Commissioner of Income Tax, Bombay PLD 1958 SC (Ind.) 151 and North‑West Frontier Province Government, Peshawar and another v. Abdul Ghafoor Khan and others PLD 1993 SC 418 ref.

Assistant Commissioner and Chairman, Panel 20 Companies and another v. Pakistan Herald Ltd. 1997 SCMR 1256 distinguished.

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

‑‑‑‑S. 65(1)(a)(b)‑‑‑Re‑opening of assessment‑‑‑Scope‑‑‑Where assessment had been consciously completed after having disclosed all facts by assessee and considered by Assessing Officer, then except on discovery of new fact of definite nature, but not gossip or surmises, there would be no scope to interfere with such concluded transaction on the ground that income chargeable to tax had either escaped assessment or had been underassessed within the meaning of S.65(1)(a)(b) of the Income Tax Ordinance, 1979.

1990 SCMR 697; PLD 1990 SC 399 and Messrs E.F.U. General Insurance Co. Limited v. The Federation of Pakistani and others PLD 1997 SC 700 ref.

(c) Income Tax Ordinance (XXXI of 1979)‑‑‑‑

‑‑‑‑S. 136‑‑‑Reference to High Court‑‑‑Question of law ‑‑‑Jurisdiction‑‑­Forum/Tribunal seized with a proposition is free to form its independent opinion by exercising jurisdiction in a prescribed or settled manner ‑‑‑Non­-exercise or mis-exercise of such jurisdiction is relatable to question of law‑‑­Where .a Tribunal declines to exercise jurisdiction on one or the other pretext, then basic question of law emerges for consideration, whether the decision under challenge is legally justified or not.

Akhtar Ali Mehmood, Advocate Supreme Court and S.M. Abbas, Advocate‑on‑Record (absent) for Appellants (in all Cases).

Iqbal Naeem Pasha, Advocate Supreme Court and M.S. Ghauhry, Advocate‑on‑Record (absent) for Respondents (in all Cases).

Date of hearing: 4th October, 2001.

2002 S C M R 538

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Munir A. Sheikh, Syed Deedar Hussain Shah and Maulana Muhammad Taqi Usmani, JJ

GHULAM QAMAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 3(S) of 1999, decided on 10th April, 2001.

(On appeal from the order dated 11‑11‑1997 of the Federal Sharait Court, Lahore passed in Cr. A. No. 330‑L of 1996).

(a) Offence of Zina (Enforcement of Hudbod) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(3)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to the accused to examine the evidence in the case in its true perspective.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(3)‑‑‑Appraisal of evidence‑‑‑Entire evidence present on record had been thoroughly scanned and the prosecution case had been considered from all angles‑‑‑Conviction of accused was upheld, but his sentence of seven years' R.I. was reduced to the imprisonment already undergone by him which was deemed sufficient to meet the ends of justice‑‑‑Appeal was disposed of accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 10th April, 2001.

2002 S C M R 540

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and

Rana Rhagwandas, JJ

Messrs PRIME DAIRIES ICE CREAM LTD., LAHORE‑‑‑Appellant

versus

COMMISSIONER OF INCOME‑TAX, COMPANIES ZONE‑‑‑Respondent

Civil Appeals Nos:1936 to 1943 of 2000, decided on 7th November, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 23‑9‑1999 passed in I.T.As. Nos. 174 to 181 of 1997).

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

‑‑‑‑O.XLV, Rr.2, 3 & 8‑‑‑Petition to High. Court for declaring the case fit for appeal to Supreme Court‑‑‑Essentials‑‑‑Such petition must contain all the grounds on which such certificate is sought‑‑‑Being an important document, which has to be ultimately treated as memo. of appeal containing grounds challenging the judgment of High Court same has to be transmitted to Supreme Court after completion of all formalities as provided in O.XLV of C.P.C.

(b) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XII, R.2‑‑‑Constitution of Pakistan (1973), Art.185(2)(d)(e)(f)‑‑­Application of procedure‑‑‑Order XII, Supreme Court Rules, 1980, applies to appeals preferred to Supreme Court under provisions of the Constitution itself and not to appeals filed under ordinary law and other statutes providing a right of appeal against judgment of High Court passed under such statute‑‑­Where such statute provides the mechanism or procedure for filing such appeal before Supreme Court, then it would have to be followed.

(c) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XII, R.2‑‑‑Civil Procedure Code (V of 1908), Ss.109 to 112 & O.XLV‑‑‑Certificated appeals under ordinary law‑‑‑Application of procedure before Supreme Court‑‑‑Where in respect of such appeals, the procedure provided under Supreme Court Rules, 1980, is different from that provided by C . P. C . , then Supreme Court Rules would have overriding effect qua the provisions of C.P.C.‑‑‑No provision contrary to the provisions of Ss.109 to 112 & OALV of C.P.C. had been trade in the Supreme Court, Rules, 1980 in respect of such appeals‑‑‑Where statute did not provide any procedure for filing such appeals, then Supreme Court could invoke the provisions of Supreme Court Rules, 1980, governing similar certificated appeals under the Constitution on ground of similarity.

(d) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss.137 & 136‑‑‑Constitution of Pakistan (1973), Art. 185(2)(d)(e)(f)‑‑­Supreme Court Rules, 1980, O.XII, R.2‑‑‑Civil Procedure Code (V of 1908), Ss.109 to 112 & O.XLV‑‑‑Direct appeal to Supreme Court against judgment of High Court passed under 5.136 of Income Tax Ordinance, 1979‑‑‑Maintainability‑‑‑Provisions of C.P.C., relating to appeals to Supreme Court had been made part of Income Tax Ordinance, 1979 through legislation by making reference under S.137(2) thereof‑‑‑Impugned judgment by fiction of law would be deemed to be a decree of High Court passed in a regular civil matter and question of entertaining of appeal had to be resolved under such provisions of C.P.C.‑‑‑High Court had passed impugned order on petition of appellants for declaring the case fit for appeal to Supreme Court‑‑‑Such petition must contain the grounds on which such certificate was sought-‑‑Such petition in view of provisions of O.XLV, C.P.C., as a whole and, in particular R .8 thereof, was an important document, which had to be ultimately treated as memo. of appeal containing grounds challenging the judgment of High Court and had to be transmitted to Supreme Court after completion of other formalities as provided in such order‑‑‑Such provisions of C.P.C., would hold the field and could not be said to have been overriden by provisions of Supreme Court Rules, 1980‑‑‑Appeals filed by appellants were neither maintainable nor entertainable directly, which were returned to them by Supreme Court with observations that they, if so desired, might approach High Court for proceeding further according to the provisions of Ss.109 to 112 and O.XLV of C.P.C.

Abrar Hussain Naqvi, Advocate Supreme Court for Appellant.

M. Ilyas Khan, Senior Advocate Supreme Court and M, Aslam Chattha, Advocate‑ on‑Record for Respondent.

Date of hearing: 22nd October, 2001.

2002 S C M R 545

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, Mian Muhammad Ajmal and

Syed Deedar Hussain Shah, JJ

MUHAMMAD AJMAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No‑ 102 of 2001, decided on 20th November, 2001.

(On appeal from the judgment dated 10‑7‑2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeal No. 62/2000 and M. R. No.11/2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Active part of tiring at the deceased had been attributed to the accused‑‑‑Both the crime empties, one taken from the spot and the other found in the Chamber of the pistol were fired from the pistol recovered from the accused according to Forensic Expert‑‑‑Plea taken by accused in his defence was an afterthought and had been disbelieved by the Courts below for sound and convincing reasons‑‑‑Prosecution witnesses had no enmity, malice or ill‑will against they accused‑‑‑Accused had admitted his presence and apprehension at the spot‑­Accused had caused brutal death of an innocent person without any reason‑­Impugned judgment was based on the principles laid down by Supreme Court for safe administration of criminal justice and did not suffer from any misconstruction of law, misreading or non‑reading of evidence‑‑‑Leave to appeal was declined to accused in circumstances.

Malik M. Jehanzaib Tamman, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 20th November, 2001.

2002 SC M R 549

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

PUNJAB SMALL INDUSTRIES CORPORATION---Appellant

versus

AHMAD AKHTAR CHEEMA---Respondent

Civil Appeal No. 1220 of 1997, decided on 16th October, 2001.

(On appeal from the judgment dated 22-4-1997 passed by Lahore High Court, Lahore, in Writ Petition No. 19573 of 1996).

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Decision of Constitutional petition without its admission for regular hearing was, to be in haste without affording proper opportunity of hearing to the respondent.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Complicated/disputed questions of fact---Superior Courts should not undertake to investigate disputed questions of fact necessitating taking of evidence, which can more appropriately be done in a suit--­Constitutional jurisdiction is intended primarily for providing an expeditious remedy, where illegality of action of executive or other authority can be established without elaborate inquiry into the complicated or disputed fact.

1971 SCMR 110; 1970 SCMR 853; PLD 1964 SC 636; PLD 1983 SC/ 280; Arshad & Company v. Capital Development Authority 2000 SCMR 1557 and Mian Muhammad v. Government of West Pakistan 1968 SCMR 1935 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court would be declined, where petitioner had not exhausted all remedies available to him---Where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by High Court is bound to produce a sense of distrust in statutory Tribunals.

1989 CLC 1938; PLD 1989 Kar. 157; PLD 1990 Quetta 41; 1987 CLC 1229; PLD 1988 Pesh. 9; PLD 1967 Dacca 6; PLD 1967 Dacca 708 and Zafar-ul-Ahsan v. Republic of Pakistan PLD 1960 SC 113 ref.

(d) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr.10, & 4(1)(b)(ii)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Civil service---Non-filing of departmental appeal--­Effect---Without filing departmental appeal, civil servant challenged penalty of his retirement from service through Constitutional petition, which was accepted by High Court without deciding the objection raised with regard to its maintainability---Validity---Constitutional jurisdiction could not be invoked without availing remedy available under the statute---Civil servant had violated prescribed procedure by not filing departmental appeal---High Court had ignored such objection without any lawful justification resulting in serious miscarriage of justice---Impugned judgment was set aside by Supreme Court in circumstances.

(e) Mala fides---

---- Allegation of mala fides can be asserted easily, but difficult to prove.

M.N. Beg, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellant.

Ahmad Awais, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record (absent) for Respondent.

Date of hearing: 16th October, 2001.

2002 S C M R 557

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

JAVED IQBAL KHAN‑‑‑Petitioner

versus

FEDERAL EMPLOYEES BENEVOLENT AND GROUP

INSURANCE FUNDS and 2 others‑‑‑Respondents

Civil Petition No. 1976 of 2000, decided on 8th October, 2001.

(On appeal from the judgment, dated 26‑10‑2000 of Federal Service Tribunal, Islamabad passed in Appeal No.88 (R)/C.E./2000).

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.8(4)‑‑‑Civil Servants (Seniority) Rules, 1993, R.3(c)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority list‑‑‑Expression 'beyond control' as mentioned in R.3(c) of the Civil Servants (Seniority) Rules, 1993‑‑­Applicability‑‑‑Civil servant conveyed willingness to forego his promotion in the existing appointment and opted for his promotion in another post‑‑­Grievance of the civil servant was that he was to be declared senior to the respondent civil servant‑‑‑Departmental appeal as well as the appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑General rule was that a civil servant promoted to higher post on an earlier date would be senior to those who were promoted later on‑‑‑Exception to the rule was provided in R.3(b) & (c) of the Civil Servants (Seniority) Rules, 1993, and R.3(b)(c) was not attracted to the facts of the case‑‑‑Where the civil servant, on his own opted for his promotion in another post, such fact took away his case from the ambit of R.3(b)(c) of the Civil Servants (Seniority) Rules, 1993‑‑‑Neither his case was governed by the expression "beyond control" nor it was a case of deferment‑‑‑Striking down Government letters dated 30‑11‑1999 and 6‑12‑1999 on the subject would mean to declare the civil servant senior to the respondent civil servant, which the former was not entitled‑‑‑Judgment of Service Tribunal was in accordance with the rules and was not open to any criticism, nor any interference was warranted‑‑‑Leave to appeal was refused.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑ on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th October, 2001.

2002 S C M R 560

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

AHMAD NAWAZ SHAH, SENIOR INTELLIGENCE OFFICER, DIRECTOR GENERAL, INTELLIGENCE AND INVESTIGATION

(CUSTOMS AND EXCISE), ISLAMABAD‑‑‑Appellant

versus

CHAIRMAN, CENTRAL BOARD OF REVENUE

Islamabad and 10 others‑‑‑Respondents

Civil Appeal No.972 of 1996, decided on 4th June, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 24‑7‑1995 passed in Appeal No.207(R) of 1995).

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑

‑‑‑‑R.3(2)‑‑‑S.R.0 No.249(1)/79, dated 15‑3‑1979‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the civil servant was entitled to ante‑dated promotion from the date he was recommended and became eligible for the appointment as Deputy Superintendent in the light of S.R.O. No.249(1)/79, dated 15‑3‑1979 and promotion of other persons in pursuance of subsequent instructions issued by the Central Board of Revenue were wholly without jurisdiction as the same could not amend the S.R.O. No.249(1)/79, dated 15‑3‑1979.

(b) Rules of Business, 1973‑‑‑

‑‑‑‑R.11(d)(e)&(i)‑‑‑Amendment in Rules‑‑‑Failure to consult with Establishment Division‑‑‑Effect‑‑‑Mandatory provision of consultation with the Establishment Division was not complied with for the issuance of telexes/letters whereby amendment in the Rules was made‑‑‑Such documents, having been issued without consultation of the Establishment Division, were of no legal effect.

(c) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑

‑‑‑‑R.3(2)‑‑‑Amendment in Rules‑‑‑Failure to consult with Establishment Division‑‑‑ Effect‑‑‑Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, envisages concurrence and in absence of such consultation with the Establishment Division no amendment in the Rules can be made.

(d) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑

‑‑‑‑R.3(2)‑‑‑Notification S.R.O. No.249(1)/79, dated 5‑3‑1979‑‑‑S.R.O. No.409(1)/86, dated 23‑4‑1986‑‑‑Amendment in Rules‑‑‑Failure to consult with Establishment Division‑‑‑Effect‑‑‑Notification S.R.O. No.249(1)/79, dated 15‑3‑1979 as amended by S.R.O. 409(1)/86, dated 23‑4‑1986 provided that against 5 % ‑quota for ministerial staff, Stenotypists; Office Superintendents and Head Clerks with 5 years' continuous service, were eligible for promotion and that the incumbents of the eligible senior posts were not available‑‑‑Civil servant was Office Superintendent (B‑13) and Departmental Promotion Committee on the basis of seniority‑cum‑fitness placed him at Serial Nb.5 on the list of selectees for the post of Deputy Superintendent (B‑14)‑‑‑Incumbents of the junior posts were promoted in preference to the incumbents of the senior posts and provisions of the Notifications were not adhered to‑‑‑Civil servant was denied promotion by the Authorities and Service Tribunal dismissed the appeal filed by the civil servant for the reason that the rules were amended by telex arid letters issued by Central Board of Revenue‑‑‑Contention of the civil servant was that the amendment in the Rules was made without consultation with the Establishment Division and the same had no legal effect ‑‑‑Validity‑‑‑Although 20% posts of Stenotypists were granted selection grade in the year 1988 but the determining factor for inter se seniority of the ministerial staff was their regular appointment to a respective post‑‑‑Post of Office Superintendent (B‑13) was senior to that of the Stenotypist (B‑1.2) and Head Clerk (B‑10), therefore, the civil servant had a prior right to be promoted first in preference to the incumbents holding junior post‑‑‑Telex and letters amending the Rules for promotion were without any lawful authority and of no legal effect, thus order passed by Service Tribunal was set aside‑‑­Supreme Court directed the Authorities to promote the civil servant against first vacancy which would‑become available after promotion of first four recommendees, as the civil servant was senior and was recommended earlier by the Departmental Promotion Committee‑‑‑Appeal was allowed.

Prof. Dr. Badshah Gul and others v. Prof. Dr. Shafiq Ahmad and others 1995 SCMR 1859 ref.

(e) Words and phrases‑‑‑

------“ Post and grade" ‑‑‑Meaning elaborated.

Shah Abdul Rashid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos. 1 to 4.

Dates of hearing: 30th May and 4th June, 2001.

2002 S C M R 570

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

HAJI KHAN LASHARI and others ‑‑‑Petitioners

versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Civil Petitions Nos. 575 to 685 and 697 to 701‑K of 2000, decided on 26th December, 2000.

Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art: 212(3)‑‑‑Payment of ad hoc salary‑‑‑Service Tribunal admitted appeal of civil servants for regular hearing, but declined them interim relief‑‑‑Civil servants filed petitions before Supreme Court against said order claiming that similar interim relief with regard to payment of ad hoc salary had been granted by it to another civil servant while disposing of his petition with consent of parties‑‑‑Held, that was a consent order, and since Authority was not willing to consent in the present proceedings, the relief given to another civil servant could not be given to petitioners‑‑‑Court further observed that petitioners were entitled to receive their final dues lying with the Authority on completion of legal formalities‑‑‑Supreme Court directed Service Tribunal to dispose of the appeals of civil servants on the date fixed or on subsequent date not later than three weeks thereafter‑‑‑Petitions for leave to appeal were disposed of accordingly.

Petitioners in person.

A.A. Siddiqui, Advocate‑on‑Record and Shah Nawaz, Incharge Law, Pakistan Steel Mills for Respondents.

Date of hearing: 26th December, 2000.

2002 S CM R 572

[Supreme Court of Pakistan]

Before Rana Bhagwandas and Javed Iqbal, JJ`

Dr. REHMAT IBAD KHAN‑‑‑Petitioner

versus

EMPLOYEES OLD‑AGE BENEFITS INSTITUTION (EOBI)

through its Chairman and 3 others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 128‑K of 2000, decided on 24th July, 2000.

(On appeal from the order, dated 10‑12‑1999 of the High Court of Sindh, Karachi, passed in Constitutional Petition No.D‑1593 of 1999).

Sindh Service Tribunals Act (XV of 1974)‑‑‑

‑‑‑‑Ss. 4 & 2‑A‑‑‑Constitution of Pakistan (1973), Arts.212, 185(3) & 199‑‑‑Constitutional petition‑‑‑Seniority‑‑‑Civil servant impugned order of Authority through Constitutional petition before High Court, which directed him to approach Service Tribunal as dispute related to enforcement of terms and conditions of his .service observing that the Service Tribunal will consider the question of delay and benefits of S.14 of the Limitation Act sympathetically‑‑‑Validity‑‑Supreme Court upheld the view of High Court that all related questions could only be gone into by Service Tribunal by virtue of Art.212 of the Constitution‑‑‑Leave to appeal was refused with observations that civil servant might seek his remedy before Service Tribunal, if so advised.

Aish Muhammad v. Pakistan 1985 SCMR 774; Aqeela Asghar Ali v'. Knalida Khatoon PLD 1991 SC 1118; Muhammad Karim v. Director, Health Services 1987 SCMR 295 and Agricultural Development Bank of Pakistan v. Irntiaz Ahmed Gill 1999 SCMR 650 rel.

Petitioner in person.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Respondent.

M. Sarwar Khan, Addl.A.‑G. Sh. Barkatullah, Chairman, EOBI (on Court's. Notice).

Date of hearing: 24th July, 2000.

2002 S C M R 574

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh

and Rana Bhagwandas, JJ

ABDUL GHAFOOR, SUPERVISOR/INSPECTOR, N.H. A.‑‑‑Appellant

versus

NATIONAL HIGHWAY AUTHORITY and 12 others‑‑‑Respondents

Civil Appeal No. 1464 of 1997, decided on 22nd October, 2001.

(On appeal from judgment of Federal Service Tribunal, dated 11‑7‑1996 passed in Service Appeal No. 138(R) of 1996).

(a) National Highway Authority (Appointment and Promotion) Rules, 1995‑‑‑

‑‑‑‑R.20(2)‑‑‑Seniority‑‑‑Service' of work‑charge employees, after their induction in regular service, would be counted towards qualifying service only for consideration of promotion, pay and pension, but riot for purposes of seniority.

(b) National Highway Authority (Appointment and Promotion) Rules, 1995‑‑‑

-----‑Rr. 8, 9, 10, .11 & Third Sched‑‑‑Eligibility for promotion‑‑‑Respondent though not possessing prescribed qualification, was promoted as Assistant Director (BS‑17) on work‑charge basis by Departmental Selection Committee, whereas appellant possessing such qualification was not even considered for such promotion‑‑‑Appellant's appeals against his supersession filed before Department and Service Tribunal were dismissed‑‑‑Validity‑‑­Prescribed qualification for eligibility to such promotion was Diploma in Civil Engineering from a recognised .Institute with 10 years' service experience‑‑‑Departmental Selection Committee was vested with discretion and Authority might be competent to promote an employee on acting charge basis by relaxing the prescribed length of service, but there was no such discretion with the Authority to dispense with or relax the prescribed academic qualifications‑‑‑Respondent did not possess such qualifications, whereas appellant was eligible for consideration for promotion‑‑­Supreme Court accepted the appeal and declared the promotion of respondent as illegal and directed the Authority to process the promotion cases of Diploma‑Holders against available vacancies on an early date.

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

‑‑‑‑S. 4(1)(b)‑‑‑Promotion‑‑‑Appeal‑‑‑Maintainability‑‑‑Appeal to Service Tribunal would not be competent against an order of departmental Authority determining fitness of a civil servant to be promoted to a higher post or grad or to be appointed to or hold a particular post‑‑‑Where, however, a civil servant although eligible for consideration for promotion was ignored and other ineligible were promoted, then his appeal to Service Tribunal asking for enforcement of his such legal right would be competent.

Civil Appeals Nos. 1237 to 1253, 1255 to 1257, 1333 and 1338 of 1999; Abdul Malik v. Sabir Zameer Siddiqui 1991 SCMR 1129; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Z.A. Javed Raja, Administrative Officer v. Secretary, Establishment Division 1996 SCMR 329 and Government of N.‑W.F.P., Health and Social Welfare Department v. Muzaffar Iqbal 1990 SCMR 1321 ref.

(d) Civil service‑‑‑

‑‑‑‑ Promotion on acting charge basis‑‑‑Authority may be competent to promote a civil servant on acting charge basis by relaxing the prescribed length of service, but no such discretion vests in the Authority to dispense with or relax the prescribed academic qualifications.

Habibul Wahab Al‑Khairi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

K.M.A. Samdani, Advocate Supreme Court and Mehi Khan, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos. 2 to 13: Ex parte. Respondent No .13 (present in person).

Date of hearing; 22nd October, 2001.

2002 S C M R 581

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

BABER GUL and another‑‑‑Petitioners

versus

SOHAIL AHMAD SHEIKH and others‑‑‑Respondents

Civil Petition No. 2610 of 2001, decided on 19th October, 2001.

(On appeal from the judgment dated 9‑8‑2001 passed by the Balochistan Service Tribunal, Quetta, in S.A. No. 17/1998).

(a) Balochistan Service Tribunals Act (V of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Tribunal‑‑‑Limitation‑‑‑Delay condoned by Service Tribunal‑‑‑Validity‑‑‑Sufficiency of cause for condonation of delay being a question of fact was within the exclusive jurisdiction of Service Tribunal‑‑­Discretion in condoning the delay once exercised by Service Tribunal could neither be interfered with nor disturbed by Supreme Court subject to certain exceptions.

Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Services Tribunal, Islamabad 1976 SCMR 262; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.‑W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 ref.

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

‑‑‑‑Art. 212(3)‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑­Appeal to Supreme Court would be competent, when case involved a substantial question of law of public importance‑‑‑Service Tribunal had dilated upon all controversial questions in a comprehensive manner after having scrutinized entire record and relevant laws‑‑‑Service Tribunal had exercised its discretion judiciously, which was neither arbitrary nor capricious‑‑‑Conclusion drawn by Service Tribunal was in accordance with law and settled norms of justice‑‑‑Judgment of Service Tribunal was not suffering from any ambiguity or illegality warranting interference by Supreme Court‑‑‑Petition for leave to appeal was dismissed being devoid of merits.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑­Petition for leave to appeal to Supreme Court from order of Service Tribunal is competent where the case involves a substantial question of law of public importance and in absence whereof, leave to appeal may not be granted.

1986 SCMR 1; 1982 SCMR 897; 1981 SCMR 715; PLD 1980 SC 22; 1980 SCMR 722; 1980 SCMR 148; 1976 SCMR 268; 1976 SCMR 262; 1976 SCMR 311; 1990 SCMR 1446; 1990 SCMR 560; 1989 SCMR 330; 1989 SCMR 1677; 1989 SCMR 748; 1980 SCMR 876 and 1987 SCMR 1354 ref.

Ibadur Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioners.

Respondent No.5 in person.

Date of hearing: 19th October, 2001.

2002 S C M R 584

[Supreme Court of Pakistan]

Before Nazim Hussain Siddiqui and Javed Iqbal, JJ

AUDITOR‑GENERAL OF PAKISTAN and another‑‑‑Petitioners

versus

IKRAMULLAH KHAN‑‑‑Respondent

Civil' Petition No.2182 of 2001, decided on 12th October, 2001.

(On appeal from the judgement dated 25‑4‑2001/28‑4‑2001 of Federal Service Tribunal, Islamabad, passed in Appeal No.243(P) C.S. of 2000).

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑RA(a)(ii) & (b)(ii)‑‑‑Federal Treasury Rules, Vol. 1, 8.546‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Compulsory retirement‑‑‑Civil Servant was compulsorily retired from service on charge of inefficiency as he being Divisional Accounts Officer had failed to detect and point out irregularity in issuance and drawing of cheques without approval of Cheque Drawing Authority‑‑‑Service Tribunal partially allowed appeal by reinstating civil servant modifying the penalty to the extent of withholding his promotion for 3 years ‑‑‑Validity‑‑­Findings of Inquiry Officer, showed that several functionaries had failed to discharge their duties efficiently, whereas major responsibility devolved upon District Accounts Officer and his staff, but except the civil servant, no disciplinary action had been taken against any other' incumbent‑‑‑During tenure of civil servant's service, it was the first charge of inefficiency, for which he was tot primarily responsible‑‑‑Punishment should always be commensurate to the guilt proved‑‑‑Case was not that of fraud, forgery or embezzlement, but on the contrary, it was that of inefficiency and that too of lower category emanating from the instinctive possibility of human error and definitely nor. prompted by any motive‑‑‑Penalty imposed upon civil servant was definitely excessive, which had rightly been modified by Tribunal‑‑­Supreme Court refused to grant leave to appeal and dismissed the petition in circumstance.

M, Yawar Ali, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent

Date of hearing: 12th October, 2001.

2002 S C M R 588

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

WAHID IQBAL and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 327 to 330‑ of 2001, decided on 8th November, 2001.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 20‑3‑2001, passed in Criminal Appeals Nos. 124 and 131 of 1998 and Murder Reference No.39‑T of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34 & 392/412/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Leave to appeal was granted to accused by Supreme Court to consider whether the High Court had kept in view the rules laid down by Supreme Court off and on in relation to appreciation of evidence in criminal cases keeping in view the safe administration of justice between the parties.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 392/412/34‑‑‑Appraisal of evidence‑‑‑Occurrence had t, place in broad daylight ‑‑‑F.I.R. was lodged very promptly without any of time‑‑‑Medical evidence was in consonance with ocular evidence‑­Complainant in the F.I.R. and the witnesses in their statements had given necessary physiques and complexion of the assailants and the witnesses had in unequivocal terms stated the role of each of the accused during trial and also identified them in identification parade‑‑‑Magistrate had not put any question regarding non‑mentioning of role of each of the accused which was a mistake and lethargy on his part for which the prosecution should not suffer‑ Eve‑witnesses had no previous enmity or malice against the accused to involve them in such a heinous offence and they had fully supported the prosecution case‑‑‑Courts below had properly examined and analysed the evidence keeping in view the principles laid down by Supreme Court for safe administration of criminal justice‑‑‑Impugned judgment did not suffer from any misreading or illegality‑‑‑Appeals were dismissed accordingly.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; State/Government of Sindh v. Sobharo 1993 SCMR 585; Lal Pasand v. The State PLD 1981 SC 142: Ghulam Rasul v. The State 1988 SCMR 557: Khadim Hussain v. The State 1985 SCMR 721; Alim v The State PLD 1967 SC 307; Ali Muhammad v. The State 1985 SCMR 1834; Muhammad Afzal v. The State 1982 SCMR 129; Muhammad Bashir Alam v. The State PLD 1958 SC (Pak.) 1; The State through the Advocate‑General, Sindh, Karachi v. Farman Hussain and another PLD 1995 SC 1 and Muhammad Yousaf Zai v. The State PLD 1988 Kar. 539 ref.

Ratique Ahmad Bajwa, Advocate Supreme Court and Tanvir Ahmed' A care‑on‑Record (absent) for Appellant (in Cr.A.No.327 of 2001).

Nazir Amad Ghazi, Advocate Supreme Court for the Complainant Muhammad Ramzan Ch. Advocate Supreme Court and M.A. Qureshi, Advocate‑ mecord for Appellant (absent) (in Cr.A.No.328 of 2001).

Nazir Ahmad Ghaz . dvocate Supreme Court and S.Abul Aasim Jafri, Advocate‑on‑Record for Appellant (absent) (in Cr.A.No.329 of 2001)

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellant (absent) (in Cr.A.No.330 of 2001).

Ch. Ghulam Ahmad, Advocate Supreme. Court for the State (in all Cases).

Date of hearing: 8th November, 2001.

2002 S C M R 596

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhantmad Ajmal and Syed Deedar Hussain Shah, JJ

GULZAR AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.323 of 2001, decided on 22nd November, 2001.

(On appeal from the judgment, dated 16‑3‑1999, of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No. 14 of 1998 and Jail‑Appeal No. 15 of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302, 364‑A, 377 & 201‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6 & 7(1)‑‑‑Appraisal of evidence‑‑‑Prosecution had collected trustworthy and reliable evidence, and all its witnesses had fully supported the case‑‑­Evidence of prosecution witness (taxi driver, whose taxi had been hired by the accused) was of unimpeachable character, who had given all necessary details showing the manner of occurrence and taking of deceased in his taxi‑‑‑No previous enmity or ill‑will existed between prosecution witnesses and accued to falsely implicate him in the case ‑‑‑Accuased had subjected male child to sodomy before murder‑‑‑Evidence of prosecution witnesses, recovery of dead bodies at pointation of accused and his extra judicial confession coupled with medical evidence had established his guilt‑‑‑High Court had dismissed appeal of accused with sound and cogent reasons‑‑‑Accused had committed brutal and cruel murders of two innocent minor children, he did not deserve any leniency‑‑‑Capital punishment had rightly been awarded by Trial Court and confirmed by High Court‑‑‑Convictions and sentences of accused were upheld in circumstances.

Ch. Ghulam Ahmad, Advocate Supreme Court for appellant.

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

Date of hearing: 22nd November, 2001.

2002 S C M R 601

[Supreme Court of Pakistan]

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

SYED JUNAID alias K2‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.52 of 2000, decided on 28th September 2001.

(On appeal from the judgment and order of the High Court of Sindh at Karachi, dated 8‑9‑1999 passed in Special Anti‑Terrorism Appeal No.21 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Anti‑Terrorism Act‑ (XXVII of 1997), S.7‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to the accused to consider whether in the circumstances of the case the accused could have been identified and what was the worth of the identification parade held in the case where only one person was identified, and whether the mode and manner of attack and the participation of the accused therein stood proved according to the principles laid down to govern the appreciation of evidence in criminal cases.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appraisal of evidence‑‑‑Complainant from the very start had named the accused in the F.I.R., who was already known to him‑‑‑Delay in lodging the F.I.R., if any, did not in any manner adversely affect the credibility of the prosecution case as other evidence was sufficient to convict the accused‑‑‑Prosecution evidence did not suffer from any material contradiction‑‑‑Since the complainant already knew the accused and had nominated him in the F.I.R., there was no question of putting him to identification test‑‑‑Evidence of the complainant and the version given by him in the F.I.R. inspired confidence‑‑‑Mode and manner of attack as mentioned in the F.I.R. had been fully proved alongwith the participation of accused therein without any doubt‑‑‑Accused had already been given lesser sentence of imprisonment for life on cogent reasons according to the principles laid down for safe administration of criminal justice‑‑‑Appeal of accused was dismissed in circumstances.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Azizullah K. Sheikh, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Appellant.

Raja Abdul Ghafoor, Advocate Supreme Court for Advocate­-General, Sindh for the State.

Date of hearing: 28th September, 2001.

2002 S C M R 606

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J., Munir A. Sheikh Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

MUHAMMAD KHAN‑‑‑Petitioner

versus

SHER JANG and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.181 of 1999, decided on 3rd January, 2002.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 4‑6‑1999, passed in Criminal Appeal No. 174 of 1993 and Criminal Revision No. 92 of 1993).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.308/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑No previous enmity existed between the parties‑‑‑Injuries on the legs of the complainant attributed to the acquitted accused were not supported by medical evidence and the same appeared to have been caused by the other accused with blunt weapons‑‑‑Acquittal of said accused, therefore, was not open to any exception‑‑‑Incident had occurred at the spur of the moment when the accused were passing their tractor through the land of the complainant‑‑­Injuries had been caused by "Lathis" and the circumstances showing intention to kill the complainant were not spelt out‑‑‑Motive in the case was not proved‑‑‑High Court had rightly altered the conviction of the accused from S.307 P.P.C. to S.308. P.P.C. enhancing the amount of compensation to be paid by the accused to the complainant‑‑‑Leave to appeal was declined by Supreme Court to the complainant in circumstances.

Malik Muhammad Nawaz Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Sardar M. Ishaque Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 3rd January, 2002.

2002 S C M R 609

[Supreme Court of Pakistan]

Present: Nazim Hussain Si4dlqui and Abdul Hameed Dogar, JJ

STATE OF THE ISLAI1qIC REPUBLIC OF PAKISTAN through Deputy Attorney‑General for Pakistan, Karachi‑‑‑ Petitioner

versus

ZULFIQAR AHMED‑‑‑Respondent

Criminal Petition No.35‑K of 2001), decided on 3rd October, 2001.

(On appeal from the judgment, dated 17‑4‑2001 of High Court of Sindh, Karachi passed in Criminal Miscellaneous Appeal No. 532 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 409/109/34‑‑‑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 State to consider, inter alia, whether under the circumstances, High Court vas justified to exercise jurisdiction under S.561‑A, Cr.P.C. and quash the proceedings against the accused when the matter was fixed for recording his statement, whether the partial quashment was justified and whether High Court had totally ignored the evidence brought on record against the accused.

S. Zaki Muhammad, Deputy Attorney‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

M. Ilyas Khan, Advocate Supreme Court for Respondent.

Date of hearing: 3rd. October, 2001

2002 S C M R 611

[Supreme Covet of Pakistan]

Present: Sh. Riaz Ahmad, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Mst. SADAF and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nds.61 and 296 of 2001, decided on 16th November, 2001.

(On appeal from the judgment, dated 17‑8‑1999, of the High Court of Sindh, Karachi, passed in Special Anti‑Terrorism Appeal No. 19 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.365‑A/34‑‑‑Appraisal of evidence‑‑‑Lady accused had admittedly gone to the school and took away the child with her and confined him in the house of her mother (co‑accused)‑‑‑Police had arrested the accused from the telephone booth from where they were making call to the complainant for ransom amount for the release of the said abducted child and subsequently on their pointation the child was recovered .from their house‑‑‑High Court had considered the case in its proper perspective which was based on the principles laid down by the superior Courts‑‑‑No misreading or non‑reading of evidence or misconstruction of law was found‑‑‑Appeal was dismissed in circumstances.

Ch. Muhammad Akram; Advocate Supreme Court for Appellants.

Suleman Habibulllah, Additional Advocate‑General, Sindh for the State

Date of hearing: 16th November, 2001.

2002 S C M R 614

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

JAVED AHMAD (JAWAD) and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No:392 of 2000, decided on 14th November, 2001

(On appeal from the judgment, dated 29‑3‑2000, of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.265 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 364 & 380‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the submissions made on behalf of accused and to examine in detail the evidence on record and the plea of self‑defence raised by one accused so as to decide the case in the light of the relevant law.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 364 & 380‑‑‑‑Appraisal of evidence‑‑‑Accused as well as prosecution witnesses and the deceased were closely related to each other and there was a dispute over a land between the parties ‑‑‑F.I.R. had been lodged without any loss of time wherein the names of eye‑witnesses and role of accused of causing fire‑arm injuries on the person of deceased were mentioned which was supported by medical evidence‑‑‑Eye‑witnesses had given correct, trustworthy and reliable evidence‑‑‑Time of death of the deceased, the weapon used in the crime as well as the seat of the injuries attributed to the accused were also established‑‑‑Crime empties secured from the spot were found to have been fired from the fire‑arm recovered from the accused‑‑‑Accused had remained absconded for more than two months after the commission of the crime‑‑‑Complainant party had no reasons to let off the real culprits and involve the accused in their place, because such substitution was very rare which was even not borne out from the record‑‑­Courts below had rightly examined and analysed the prosecution evidence and rightly rejected the plea of self‑defence raised by the accused‑‑­Impugned judgment did not suffer from any legal flaw which was based on the principles laid down by Supreme Court‑‑‑Appeal was dismissed accordingly.

Muhammad Latif and another v. The State NLR 1983 Criminal 651 distinguished.

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants.

M. lqbal Bhatti, Advocate Supreme Court for the Complainant.

Nazir Ahmad Lughmani, Advocate Supreme Court for the State.

Date of hearing: 14th November, 2001.

2002 S C M R 620

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

STATE through Advocate‑General, Sindh‑‑‑Petitioner

versus

MUHAMMAD SHAFIQUE alias PAPPU and another‑‑‑Respondents

Criminal Petitions for Leave to Appeal Nos, 84‑K and 85‑K of 2001, decided on 15th November, 2001.

(On appeal from the judgment, dated 31‑8‑2001 passed by High Court of Sindh at Karachi in Anti‑Terrorism Appeals Nos. 10 and 11 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185‑‑‑Appeal against acquittal‑‑‑Principle‑‑‑Where the conclusion arrived at by the Court is such that no reasonable person would conceivably reach the same, Supreme Court would interfere in exceptional cases on overwhelming proof and that too with a view only to avoid grave miscarriage of justice and for no other purpose‑‑‑Important test is that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 39‑‑‑Confession‑‑‑Evidentiary value‑-‑Principle‑‑‑Any delay in recording a confession may not be fatal if the Court is satisfied that the retracted confession is not tutored and was, in fact, made voluntarily.

Muhammad Yaqoob v. State 1992 SCMR 1983 and Muhammad Gul v. The State 1991 SCMR 942 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 121, 121‑A, 122 & 123‑‑‑Explosive Substances Act (XI of 1908), SsA, 5 & 6‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑­Constitutioit of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑­Leave to appeal was granted by Supreme .Court to the State to consider whether the High Court had misread the prosecution evidence resulting into grave miscarriage of justice and whether High Court while acquitting the accused had kept in view the provisions of S.5 of the Explosive Substances Act, 1908.

LN Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11; Muhammad Yaqoob v. State 1992 SCMR 1983 and Muhammad Gul v. The State 1991 SCMR 942 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 121, 121‑A, 122 & 123‑‑‑Explosive Substances Act (XI of 1908), Ss.4, 5 & 6‑‑‑Terrorism acts amounting to anti‑national activity‑‑­Technicalities to be avoided‑‑‑In terrorism cases where any accused person is prima facie employed by, or works for, or acts on instructions received from the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or attempts to commit any act which amounts to an anti‑national activity as defined in a Federal Law, then in such cases it is the duty of the Court to avoid hypertehnicalities.

Muhammad Gul v. The State 1991 SCMR 942 ref.

Raja Qureshi, Advocate‑Genernal, Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for the State.

Nemo for Respondent.

Date of hearing; 15th November, 2001.

2002 S C M R 626

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Mulla RIAZ AHMAD ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition'No.2‑Q of 2001, decided on 19th November, 2001.

(On appeal from the judgment, dated 13‑8‑2001, of the High Court of Balochistan, Bench at Sibi, passed in Criminal Appeal No.(S)50 of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 1,85(3)‑‑‑Ocular testimony was unimpeachable and trustworthy and was supported by medical evidence‑‑‑Occurrence was in consonance with prosecution evidence ‑‑‑Eye­witnesses were also related to the accused ‑‑‑Abscondence of accused for eight months after commission of the crime had further reflected on his guilt‑‑­Accused had caused fatal injuries to the deceased‑‑‑Impugned judgment did not suffer from misreading of evidence or any material illegality and was based on cogent and sound reasons‑‑‑Leave to appeal was refused to accused in circumstances.

Sharafat Ali v. The State 1999 SCMR 329 and Niaz v. The State PLD 196.0 SC 38 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Related witness ‑‑‑Credibility‑‑­Principle‑‑‑‑Statement of a witness cannot be disbelieved solely on the plea that he is relatbd to the deceased.

Sharafat Ali v. The State 1999 SCMR 329 and Niaz v. The State PLD 1960 SC 38 ref.

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

Date of hearing: 19th November, 2001.

2002 S C M R 629

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

UMAR HAYAT‑‑‑Appellant

versus

JAHANGIR and another‑‑‑Respondents Criminal Appeal No. 120 of 1999, decided on 11th October, 2001.

(On appeal from the judgment, dated 2‑12‑1998 of the Lahore High Court, Lahore, passed in Criminal Appeal No.180 and M.R. No.85 of 1993).

(a) Penal Code (XLV of 1860)‑‑-

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to the complainant for reappraisal of evidence and for determining whether principles relating to fair administration of justice were followed by the High Court.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 299 & 306‑‑‑Constitution of Pakistan (1973), Art.185‑‑­Appeal against acquittal of accused by High Court‑‑‑Incident had taken place in broad daylight‑‑‑Prosecution evidence was natural, convincing, trustworthy and of unimpeachable character and was not shaken in cross­examination‑‑‑Trial Court while convicting the accused had appreciated the evidence in its proper perspective‑‑‑High Court by ignoring natural and reliable evidence coupled with the motive and recoveries had acquitted the accused on surmises and conjectures which had resulted in miscarriage of justice‑‑‑Impugned judgment of High Court was consequently set aside‑‑­Accused being not adult at the time of occurrence, death sentence awarded to him by Trial Court was not legal and proper in view of the provisions of S.299, P.P.C. read with S.306, P.P.C.‑‑‑Accused was convicted under S.302(b), P.P.C. and sentenced to undergo imprisonment for life in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 299 & 306‑‑‑Appreciation of evidence‑‑‑Age of accused‑‑­Where two views are possible, the view in favour of the accused is normally to be accepted.

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

Sh. Khizar Hayat, .Advocate Supreme Court and S. Abul Aasirn Jafri., Advocate‑on‑Record (absent) for Respondent No. 1.

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

Date of hearing: 11th October, 2001.

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2002 S C M R 642

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

THE STATE through Advocate‑General, Sindh‑‑‑Petitioner

versus

MUHAMMAD AMIRULLAH and others‑‑‑Respondents

Criminal Petitions Nos. 92‑K to 94‑K of 2001, heard on 1st November, 2001.

(On appeal from the order/judgment dated 31‑5‑2001/18‑8‑2001 passed by High Court of Sindh, Karachi in Special Appeals Nos.34, 35 and 37 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contentions were that the prosecution case against the accused stood proved beyond any reasonable doubt in view of the confidence‑inspiring ocular evidence furnished by natural as well as injured witnesses, confessional statements of the accused, recovery of weapons of offence at the pointation of same of the accused, identification parade having been held in accordance with the legal procedure, absence of motive for false implication of accused by the stranger eye‑witnesses, medical evidence being in line with ocular evidence and the recoveries of incriminating articles including the van used in the commission of the crime and the crime empties which did not suffer from any defect or legal infirmity‑‑‑ Leave to appeal was granted by the Supreme Court to the State to reappraise the evidence on record with a view to examine the said contentions.

Sheikh Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Yaqoob v. State 19992 SCMR 1983 and Khurshid v. State PLD 1996 SC 305 ref.

Raja Qureshi, Advocate‑General, Sindh with Sarwar Khan, Additional Advocate‑General, Sindh for Petitioner.

Nemo for Respondents.

Date of hearing: 1st November, 2001.

2002 S C M R 648

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rana Bhagwandas, JJ

FAZAL HUSSAIN ‑‑‑Appellant

versus

KARIM through Legal Heirs and others‑‑‑Respondents

Civil Appeal No. 1311 of 2000, decided onE3rd January, 2002.

(On appeal from the judgment dated 4‑2‑1999 of the Lahore High Court passed in R.S.A.W No.82 of 1995).

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑A‑‑‑Superior right of pre‑emption ‑‑‑Improvement of status by vendee during pendency of appeal‑‑‑Effect‑‑‑Question regarding superior right of pre‑emption was adjudicated upon on merits in favour of the pre­emptors by the Trial Court ‑‑‑Vendees had improved their status on the basis of mutation of inheritance during the pendency of appeal before Appellate Court‑‑‑Judgment and decree passed by the Trial Court was maintained by Appellate Court as well as High Court‑‑‑Plea raised by the vendees was that since appeal was continuation of the suit, therefore, improvement of status during pendency of the appeal had to be considered by the Courts below‑‑­Validity‑‑‑High Court had rightly found improvement in the status by the vendees must have been made before the final judgment in the case on merits was passed, might be against improvement of status through succession made during the pendency of appeal was of no avail and such finding was perfectly in accordance with the law laid down in this behalf by the superior Courts‑‑­Supreme Court declined to interfere with the findings of the Courts below‑‑­Appeal was dismissed.

Said Kamal Shah's case PLD 1986 SC 360; Muhammad Akram and 3 others v. Muhammad Rashid and 2 others PLD 1994 SC 848; Thakur Madho Singh and another v. Lt. James R.B. Shinner and another AIR 1941 Lah. 433; Zahur Din and another v. JaW Din and others AIR 1944 Lah. 319 and Madho Singh and another v. Lieut. James R.R. Skinner and others ILR 1942 Lah. X155 ref

S.M. Zafar, Senior Advocate Supreme Court and Mian Saeed‑ur­Rehman Farrukh, Advocate Supreme Court for Appellant

Respondent: Ex parte.

Date, of hearing: 1st November, 2001.

2002 SCMR 653

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Rana Bhagwandas and Abdul Hameed Dogar, JJ

Messrs S.S. ENTERPRISES, KARACHI‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad

and 3 others‑‑‑Respondents

Civil Petitions Nos. 185‑K and 186‑K of 2001, heard on 7th December, 2001.

(On appeal from the judgment dated 19‑3‑2001 of High Court of Balochistan, Quetta passed in C.Ps. Nos. 60 and 600 of 2000).

Per Nazim Hussain Siddiqui, J.; Abdul Hameed Dogar, J. agreeing‑‑

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18 & 19‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Levy of customs duty‑‑‑Purchase of vessels in auction conducted on the direction of High Court in Admiralty jurisdiction‑‑‑Petitioner being auction‑purchaser assailed levy of customs duty on the ground that the vessels were neither imported by the petitioner nor the duty was payable as at the time of purchase, the vessels were Pakistani goods under the control of High Court‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the petitioner having purchased two vessels through auction proceedings was liable to pay customs duty as demanded by the Authorities; whether having purchased the ships through auction conducted on the basis of directions issued by High Court, the proceedings in rem operated to extinguish all claim attached to the res and conveyed a valid title to the purchaser free from all encumbrances; whether the notices published in the newspapers regarding auction of those vessels mentioned that they were subject to encumbrances or not, if not then what was its effect on the purchases made by the petitioner; and whether the vessels were purchased by the petitioner as Pakistani goods under the control of High Court.

Per Rana Bhagwandas, J.‑‑[Minority view]‑‑‑

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18 & 19‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Levy of customs duty‑‑‑Purchase of vessels in auction conducted on the direction of High Court in Admiralty jurisdiction on 'as is where is' basis‑‑‑Petitioner being auction‑purchaser assailed levy of customs duty on the ground that the vessels were neither imported by the petitioner nor the duty was payable as at the time of purchase, the vessels were Pakistani goods under the control of High Court‑‑‑Validity‑‑‑After the vessels had been taken over by the High Court in the exercise of its admiralty jurisdiction, the goods had not become Pakistani goods, therefore, the demand for payment of duty by Customs Authority was legal and justified‑‑‑Vessels registered in foreign countries come to Pakistani ports for discharge' of goods and/or passengers and the very moment they sail away from the territorial waters of Pakistan, for some other destination, no duty is payable on such vessels‑‑‑Vessel falls within the purview of expression 'goods' and the same is not imported for home consumption or for warehousing‑‑‑Arrival of vessel at a seaport may not be taken as 'import' in the strict sense of the expression 'goods'‑‑‑Vessel arrives in a foreign territory for the approved purpose of carrying goods and persons from one port to another but if the vessel after discharging the goods does not leave for any other port or it is disposed of by way of sale or breakage, such vessel may be treated as goods imported from foreign country‑‑?Incidence of duty is always attached to such vessels and after transfer of their ownership, the purchaser can hardly be permitted to say that he is not liable to pay any duty‑‑‑In the absence of any notification exempting the vessels from the payment of duty in terms of S.19 of the Customs Act; 1969, the owner of the vessels is not entitled to seek a writ against the Customs Authorities denying his liability to pay the duty payable thereon‑‑‑Reference to the terms of sale by public auction on 'as is where is' basis only reflected the condition and nature of the goods and not the rights, liabilities and encumbrance attached thereto‑‑‑Customs Authorities, in the present case, could not be prevented from discharging their statutory function of collection of duty on such goods under the provisions of the Customs Act, 1969, or any other law‑‑‑Leave to appeal was refused.

East & West Steamship Co. v. The Collector of Customs PLD 1976 SC 618; Tufail Muhammad v. Deputy Collector of Customs 1980 PCr.LJ 721; East & West Steamship Co. v. Collector of Customs, Karachi PLD 1971 Kar. 14; Chowgule & Co. (Pvt.) Ltd. v. Union of India and others PTCL 1988 FC 232; Vulcan Company Ltd. v. Government of Pakistan 1983 SCMR 522 and Amir Ali Automobiles Ltd. v. Assistant Collector of Customs PTCL 1983(CL) 141 ref.

Akhtar Ali Mahmood, Advocate Supreme Court anti K.A. Wahab, Advocate‑on‑Record for Petitioner. ???????

M.N. Kohli, Deputy Attorney‑General for Respondents.

Date of hearing: 7th December; 2001.

2002 SCMR 658

[Supreme Court of Pakistan]

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

CALTEX OIL (PAKISTAN) LIMITED, KARACHI‑Petitioner

Versus

Mrs. YASMIN ‑‑‑ Respondent

Civil Petition for Leave to Appeal No.285‑K of 2001, decided on 14th December.

(On appeal from the order of the High Court of Sindh, Karachi, dated 16‑4‑2001, passed in C.M.As. Nos.720 and 721 of 2001 in F.R.A. No. 168 of 1991).

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

‑‑‑‑S. 15‑‑‑Civil Procedure (V of 1908), S.12(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ejectment of tenant‑‑‑Compromise before Supreme Court‑‑‑Rent Controller decided the matter in favour of landlady and appeal before the High Court was dismissed‑‑‑Parties entered into a compromise during the pendency of appeal before the Supreme Court and date for. vacation of the premises was mutually decided,‑‑Tenant instead of vacating the premises on the agreed date assailed the compromise before High Court in application under S.12(2), C.P.C. and the application was dismissed‑‑­Validity‑‑‑No misreading or non‑reading of material on record having been pointed out there was no misapplication of law warranting interference by Supreme Court‑‑‑Leave to appeal was refused.

Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 and Mubarak Ali v. Fazai Muhammad and another PLD 1995 SC 564 distinguished.

Nazir Ahmed v. Muhammad Sharif arid others 2001 SCMR 46 ref.

Mumtaz Ahmad Shaikh, Advocate Supreme Court and Faizan‑ul­-Haq, Advocate‑on‑Record for Petitioner.

Qazi Faez Issa, Advocate Supreme Court and M.S. Ghauri, Advocate‑on‑Record for Respondent.

Date of hearing: 14th December, 2001.

2002 S C M R 663

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUAHAMMAD YOUSAF‑‑‑Petitioner

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and another‑‑‑Respondents

Civil Petition No. 288 of 2001, decided on 10th January, 2002.

(On appeal from the judgment/order dated 25‑11‑2000 passed by Federal Service Tribunal, Islamabad in Service Appeal No. 726(R)CS/2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973). Art.212(3)‑‑‑Implementation of order passed by Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Leave to appeal was granted by Supreme Court to consider; whether Federal Service Tribunal had no authority to issue direction/orders for implementation of its own judgment.

Peer in person Nemo for Respondents.

Date of hearing: 10th January, 2002,

2002 S C M R 664

[Supreme Court of Pakistan]

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

AHMED KHAN‑‑‑Petitioner

Versus

Haji MUHAMMAD QASSIM and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 918‑K of 2001, decided on 12th December, 2001.

(On appeal from the order of the High Court of Sindh, Karachi, dated 25‑10‑2001, passed in C.P. No. D‑2002 of 1995).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. IX, R.13‑---Constitution of Pakistan (1973), Art.185(3)‑‑‑Ex parte decree, setting aside of‑‑‑Remanding of case to Trial Court for decision afresh on merits‑‑‑Defendant did not reside at the address given in the plaint when the summons were issued and that there was no proof of the fact that the Trial Court took serious steps to effect personal service of the defendant before order for publication of notice in press was passed‑‑‑High Court set aside the ex parte decree in exercise of revisional jurisdiction under S.115, C.P.C. and the case ‑was, remanded to Trial Court for decision afresh on merits‑‑‑Validity‑‑‑High Court had rightly found that the defendant was non-­suited and ‑ex parte decree was passed against him without proper service, therefore, the defendant was condemned unheard‑‑‑Order passed by High Court was based on the principle laid down by Supreme Court and did not call for interference by Supreme Court‑‑‑No question of public importance, as contemplated under Art.185(3) of the Constitution being involved in the petition‑‑‑Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 12th December, 2001.

2002 S C M R 667

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

Mst. HUSNA BANO alias Mst./BIBI HUSSAN BANG and others‑‑‑Petitioners

Versus

FAIZ MUHAMMAD through Legal Heirs

and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos. 728‑K and 729‑K of 1999, decided on 24th April, 2000.

(On appeal from the judgments dated 4‑11‑1999 of the High Court of Sindh Hyderabad Circuit, passed in F.R.A. No. 105 of 1987 and R.A. No. 51 of 1992 respectively).

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

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S.11.5 & O.XX, R.5‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Specific performance of agreement to sell ‑‑Suit dismissed by Trial Court‑‑‑Appeal filed by petitioner met the same fate as well as the revision before High Court‑‑­Contention of petitioner was that Trial Court by deciding issues together had flagrantly violated the provisions of O.XX, R.5, C.P.C.‑‑‑Validity‑‑‑Trial Court though had discussed inter‑connected issues arising in the suit from same set of evidence jointly, but had recorded valid and cogent reasons for findings on each issue without causing any prejudice to petitioner‑‑‑Joint discussion of interconnected issues had not occasioned any miscarriage of justice vitiating the ultimate decision‑‑‑First Appellate Court had dealt with all the issues of fact as well as law and arrived at a correct conclusion that respondent having acquired right, interest and title to suit property through a valid and lawful registered conveyance deed,, there was hardly any occasion for execution of any agreement of sale, which had not been proved at the trial‑‑‑High Court in revision concurred with such findings of fact and did not disturb the verdict and rightly so since the findings arrived at did not suffer from perverse reading of evidence or fallacious interpretation of the points involved‑‑‑High Court had dealt with the points involved in revision petition in a well‑reasoned and elaborate judgment‑‑‑Supreme Court did not find any merit in the petition for leave to appeal and dismissed the same.

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

‑‑‑‑S.15(2)(ii)(vii)‑‑‑‑Specific Relic" Act (1 of 1877), S.12‑‑‑Default in payment of rent and bona fide personal need of landlord‑‑‑Tenant resisted the ejectment petition and pleaded execution of agreement of sale for transfer of suit property in her favour and institution of suit for specific performance of contract‑‑‑Rent Controller on consideration of evidence on record directed ejectment of tenant and her appeal filed before High Court was dismissed‑‑­Tenant could not succeed in her suit for specific performance of agreement to sell up to the Supreme Court‑‑‑Since tenant had not been found to be the owner of suit property, her ejectment therefrom was perfectly justified.

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

Nemo for Respondents.

Date of hearing: 24th April, 2000.

2002 SCMR 671

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Syed Deedar Hussain Shah, JJ

AZHAR‑UD‑DIN‑‑‑Petitioner

Versus

AQEEL AHMAD KHAN and others‑‑‑Respondents

Civil Petition No. 517 of 2000, decided on 19th March, 2001.

(On appeal from the judgment dated 14‑1‑2000 of the Peshawar High Court, Bench Abbottabad, Abbottabad in Civil Revision No. 77 of 1999).

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Limitation‑‑‑Outer limit for a challenge under S.115, C.P.C. is 90 days.

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

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision‑‑­Jurisdictional value of suit was Rs.50 lacs‑‑‑Proper forum‑‑‑Revision petition filed before District Judge had originated from order disallowing amendment of pleadings passed in suit having jurisdictional value of Rs.50 lacs‑‑­Respondent through an application pointed out that District Judge lacked jurisdiction, but instead of conceding to the objection petitioner contested application, but after lapse of 4 months, he withdrew the revision petition with permission to file before High Court subject to all the same valid and legal objections available to respondent‑‑‑Petitioner then filed revision petition before High Court, which was dismissed being barred by time‑‑­Contention of petitioner was that as order declining amendment in pleadings was void ab initio, therefore, no period of limitation stood in his way to challenge same revisional jurisdiction of High Court‑‑‑Validity‑‑‑Order of Trial Court disallowing amendment of pleadings did not suffer from any such defect, which could be challenged at any point of time‑‑‑Outer limit for a challenge under S.115, C.P.C. was 90 days‑‑‑High Court had rightly observed against petitioner that he was himself to blame for predicament in which he found himself‑‑‑Petition for leave to appeal was dismissed in circumstances.

Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039; Syed Muhammad Alain v. Syed Mehdi Hussain and 2 others PLD 1970 Lah. 6 and Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434 ref.

Malik Fazal‑e‑Hussain, Advocate Supreme Court and Imtiaz M Khan, Advocate‑on‑Record for Petitioner.

M. Hussain Lughmani, Advocate Supreme Court for Respondents.

Date of hearing: 19th March, 2001

2002 S C M R 675

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Munir A. Sheikh, JJ

SALIM PERVAIZ‑‑‑Petitioner

Versus

HUSSAIN BANG‑‑‑Respondent

Civil Petition for Leave to Appeal No. 115‑K of 2001, decided on 30th July, 2001.

(On appeal from the judgment dated 18‑1‑2001 of the High Court of Sindh, Karachi passed in F.R.A. No.805/2000).

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

‑‑‑S. 15(2)(ii)(iv)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 163‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Default in payment of rent‑‑‑Impairing value and utility of rented premises and creating nuisance‑‑‑Rent Controller on the basis of evidence on record found all the issues in negative and dismissed the rent application filed by petitioner‑‑‑First appeal filed against such judgment was also dismissed by High Court‑‑‑Contention of petitioner was that special oath, on the basis of which Rent Controller had decided the issue of default, was not accepted by him, thus, provisions of Art. 163 of Qanune‑e‑Shahadat, 1984 had been violated‑‑­Validity‑‑‑No serious misreading and/or disregard of any material piece of evidence on word was found‑‑‑High Court had rightly found that Runt Controller had not solely relied on special oath, but had also relied upon other evidence brought on record‑‑‑Impugned judgment was based on proper appraisal of evidence on record‑‑‑Supreme Court declined to grant leave to appeal.

M. Muzaffarul Haq, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 30th July, 2001.

2002 S C M R 677

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Syed Deedar Hussain Shah, JJ

COLLECTOR, LAND ACQUISITION, CHASHMA RIGHT BANK CANAL

PROJECT, WAPDA, D.I. KHAN and others‑‑‑Appellants

Versus

GHULAM SADIQ and others‑‑‑Respondents

Civil Appeal No. 1479 of 1999, decided on 19th March, 2001.

(On appeal from the judgment/order of the Peshawar High Court, Branch Registry, D.I. Khan, dated 24‑9‑1999, passed in R.F.A. No.5 of 1998).

(a) Precedent‑--

‑‑‑‑ Peculiarities of each case have their own repercussion on all questions of law and facts involved therein.

(b) Limitation Act (IX of 1908)‑

‑‑‑‑S.5‑‑‑Delay in-filing-appeal‑‑‑Condonation‑‑‑Sufficient-cause‑‑ Government cannot be treated differently than an ordinary litigant while considering the question as to whether sufficient cause has been shown for condonation of delay in an application under S. 5 of the Limitation Act, 1908.

Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376 fol.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑S.3‑‑‑Duty of Court‑‑‑Time‑barred claim‑‑‑Plea that decision on merits suffered from any illegal infirmity, loses all its significance when considered in juxtaposition with letter and spirit of the law requiring Court/forum concerned to dismiss application/petition/appeal, if it is beyond time within the contemplation of S. 3 of Limitation Act, 1908.

(d) Land Acquisition Act (I of 1894)

‑‑‑‑S.54‑‑‑Limitation Act (IX of 1908), Ss. 3 & 5‑‑‑Appeal-‑‑Delay of 7 days‑‑‑Effect‑‑‑Government filed regular first appeal with delay of 7 days, which was not, sufficiently explained in application for condonation of delay‑‑‑High Court dismissed the appeal‑‑‑Validity‑‑‑Government and/or any specific Department of Federal or Provincial Government, in relation to condonation of delay, were to be treated alike an ordinary litigant‑‑‑No case for interference with impugned judgment was made out, Supreme Court dismissed the appeal.

Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059; Commissioner of Income‑tax v. Rais Pir Ahmad Khan 1981 SCMR 27; Government of Balochistan through Secretary/Member, Board of Revenue and another v. Ghulam Muhammad and 4 others 2001 SCMR 19 ref.

Sadat Hussain, Advocate Supreme Court for Appellants.

Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 19th March, 2001.

2002 S C M R 680

[Supreme Court of Pakistan]

Present: Seed Deedar Hussain Shah and Hamid Ali Mirza, JJ

KARACHI TANNERY (PVT.) LTD ‑‑‑‑Petitioner

Versus

MUHAMMAD YOUSAF through Legal Heirs‑‑‑Respondent

Civil Petition No. 805‑K of 2001, decided on 7th December, 2001.

(On appeal from the judgment dated 12‑7‑2001 passed by the High Court of Sindh at Karachi in F. R. A. No. 183 of 1994).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Concurrent findings of fact by Courts below‑‑‑No misreading or non‑reading had been pointed out affecting the decision and conclusion reached by two Courts below‑‑‑Supreme Court declined leave to appeal.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of shop for son of landlord‑‑‑Concurrent findings of fact affirming such need‑‑‑Validity‑‑‑Landlord's son had been carrying on business in a rented shop, which fact was fully established by evidence‑‑­'Landlord thus could not be deprived of his property for personal use of his own son in order to accommodate the tenant.

Abdul Rauf and others v. Mrs. Shereen Hassan PLD 2001 SC 31 ref.

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

‑‑‑‑Ss. 15(2)(vii), 19 & 20‑‑‑Constitution of Pakistan (1973), Art.185(3 ‑‑­Bona fide personal need of landlord‑‑‑Concurrent findings of fact with regard to such need‑‑‑Refusal of Rent Controller to summon witnesses requested by tenant‑‑‑Effect‑‑‑Such refusal would be no ground for' reversing such concurrent findings of fact‑‑‑Application for summoning witnesses did not give brief statement as to what evidence was required to be given by witnesses, so as to come to the conclusion that if such witnesses would have been summoned and examined, they would have supported the case of tenant‑‑‑Assuming that it was not necessary to give such brief statement in application, tenant could have produced those witnesses before Rent Controller‑‑‑Application for summoning witnesses could not be granted as a matter of course in absence of cogent reasons‑‑‑Tenant could have filed affidavits of witnesses before Rent Controller‑‑‑Tenant contended that such witnesses could have supported his case on the point that landlord had demanded from him money in their presence‑‑‑Such assertion being oral would not adversely affect the merits of case, because no such plea had been raised in written statement or evidence‑‑‑No substance having been found in the contentions of tenant, Supreme Court declined leave to appeal and dismissed the petition.

Messrs. Fakhri Traders, Karachi v. Mst. Batool Fida Hussain and others 1985 CLC 283 ref.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlord‑‑‑Requirement of shop in good faith for son of landlord ‑‑‑Ejectment sought on such ground was ordered by Rent Controller and upheld by High Court‑‑‑Validity‑‑‑No material misreading or non­-reading of evidence was found‑‑‑Mere fact that landlord had stated that he would carry on same business, which he was carrying on in rented premises, while his' son in cross‑examination had stated that he would run garments business in the shop, would not adversely affect the personal requirement of the landlord in good faith.

Muhammad Iqbal v. Mst. Saeeda Bano 1993 SCMR 1559; Messrs Fakhri Traders v. Mst. Batool Fida Hussain Sheikh and others 1985 CLC 283; Mst. Bashir Bibi v. Aminuddin and others 1972 SCMR 534 and 1973 Law Notes 1 ref.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15(2)(vii)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bona fide personal need of landlord‑‑‑Bona fide requirement of shop for son of landlord‑‑‑Rent Controller and High Court recognised such ground‑‑­Contention of tenant was that two shops were in his possession arid alleged personal need of landlord could be satisfied, if one shop was ordered to be given to landlord and the other was allowed to be retained by him‑‑­Validity‑‑‑No such plea had been raised by tenant in written statement or evidence, thus, such plea could not be permitted to be raised before Supreme Court.

Mushtaq Ahmed Memon, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioner.

Iqbal Kazi, Senior Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Respondents.

Date of hearing: 7th December; 2001.

2002 S C M R 684

[Supreme Court of Pakistan]

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

AKBAR KHAN‑‑‑Appellant

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Appeal No. 282 of 1995, decided on 12th March, 1999.

(On appeal from the judgment dated 22‑6‑1994 passed by the Federal Service Tribunal, Islamabad in Appeal No. 389(R) of 1993).

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

‑‑S. 4 Government, Servants (Efficiency and Discipline) Rules, 1973, R.6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider, as to whether after remand, civil servant was entitled to opportunity of hearing; whether by not giving civil servant opportunity of personal hearing reasonable opportunity to defend himself had not been denied to him; and whether Service Tribunal was legally justified in deciding the appeal without first disposing of application for amendment of memorandum of appeal filed by civil servant.

(b) Government Servants (Efficiency and Discipline) Rules, 1973‑

‑‑‑‑Rr. 3(b)(c) & 6‑‑‑Allegations of corruption and misconduct ‑‑‑Enquiry‑‑­Admission of guilt by civil servant‑‑‑Holding of any formal enquiry against him was not necessary.

(c) Government Servants (Efficiency and Discipline) Rules, 1973--

‑‑‑‑Rr. 3(b)(c), 4(1)(b)(iv) & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan, (1973), Art.212(3)‑‑‑Dismissal from service‑‑‑Allegations of misconduct and corruption‑‑‑Civil servant was charge‑sheeted and after enquiry was dismissed from service‑‑‑Departmental appeal having not been responded, he tiled appeal before Service Tribunal, which was dismissed‑‑‑Validity‑‑.Civil servant, during the enquiry against him did not cross‑examine witnesses, though he was provided opportunity by the Enquiry Officer‑‑‑Civil servant had voluntarily admitted the receipt of illegal ,gratification and that the audio cassette containing talk between complainant and civil servant about receipt of money by the latter from the former as illegal gratification was correct‑‑In presence of admission of his guilt by civil servant, there was no‑ need of holding any formal enquiry against him.

PLD 1985 SC 134; 1987 ‑SCMR 829; 1990 SCMR 447; 1993 SCMR 603; 1993 SCMR 956 and 1991 SCMR 140 ref.

Sheikh Riazul Haque, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Maulvi Anwarul Haq, Deputy Attorney‑General with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 12th March, 1999.

2002 S C M R 690

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C. J. and Faqir Muhammad Khokhar. J

KHALID SIDDIQUE‑‑‑Petitioner

Versus

SECRETARY, EXCISE AND TAXATION DEPARTMENT, PUNJAB and

others‑‑‑Respondents

Civil Petition No. 136‑L of 2002, decided on 14th February, 2002.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 6‑11‑2001 passed in Appeal No.348 of 1991).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑

‑‑‑‑Rr. 3(a) & 4(b)(i)‑‑‑Constitution of Pakistan (1973), Art 212(3)‑‑­Penalty‑‑‑Negligence on the part of civil servant, who during whole period of his service, had earned no adverse remarks except the one on account of negligence‑‑‑Imposition of major penalty did not commensurate with the kind of the act of negligence committed by the civil servant and his case was that of imposition of minor penalty which was modified by the Supreme Court accordingly.

Petitioner in person.

Syed Riaz Hussain, Officer Incharge Legal Cell, Excise and Taxation Department for Respondent No. 1.

Ch. Shaukat Ali, Director, Excise and Taxation (HQ) for Respondent No.2.

Date of hearing: 14th February, 2002.

2002 S C M R 692

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Tanvir Ahmed

Khan, JJ

CHAIRMAN, WAPDA and others‑‑‑Petitioners

Versus

Dr. TABASSUM ZEB‑‑‑Respondent

Civil Petition No.2471 of 2001, decided on 17th January, 2002.

(On appeal from the judgment/order dated 19‑7‑2001 passed by the Federal Service Tribunal, Islamabad in Appeal No.353(P) of 1999).

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

‑‑‑‑S. 5(1)‑‑‑Powers of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal while exercising powers under S.5(1), Service Tribunals. Act, 1973 is also required to keep before it the gravity of the charge qua the punishment which has been awarded to an employee by the Department and if proportionally both are not reconcilable, then, in the interest of justice punishment so awarded to an employee should be varied or modified on furnishing strong/convincing reasons akin to judicial norms.

(b) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr.3(b) & 4(b)(ii)(iii)‑‑‑Service Tribunals Act (LXX of 1973), S. 5(1)‑‑­Constitution of Pakistan (1973), Art.212‑‑‑Misconduct‑‑‑Employee's prolonged absence from duty after availing sanctioned leave for advance study‑‑‑Removal from service‑‑‑Conversion of punishment by Service Tribunal‑‑‑Service Tribunal, without assigning justifiable reasons reduced employee's sentence of removal from service into compulsory retirement‑‑­Service Tribunal gave the reason that higher education received by the employee and the experience which she had on her credit would be beneficial for employer Department in future‑‑‑Validity‑‑‑Such reason itself could not be considered to be justifiable in any manner because the employee after availing long leave, had not opted to join service and even without caring to make arrangements for extension of leave, remained absent from duty and on account of her such conduct the Department decided to remove her from service on account of misconduct and once she was removed from service or was not allowed to join duty on account of compulsory retirement, in both cases, she would not serve the Department, as such for such reason alone conversion of punishment of removal from service into compulsory retirement was not sustainable and judgment of Service Tribunal warranted interference and was set aside.

Water and Power Development Authority v. Sh. Zulfiqar Ali and others PLD 1988 SC 693 and General Manager (Operation) WAPDA v. Javaid Aziz Qureshi and others 1998 SCMR 2553 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioners.

Zafar Abbas Zaidi, Advocate Supreme Court for Respondent.

Date of hearing: 17th January, 2002.

2002 S C M R 695

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Faqir Muhammad Khokhar, JJ

Messrs SUI NORTHERN GAS PIPLELINES LTD. Through Managing Director

and 2 others‑‑‑Petitioners

Versus

AFTAB ALI KHAN‑‑‑Respondent

Civil Petition No. 1837 of 2001, decided on 17th January, 2002.

(On appeal. from judgment dated 17‑5‑2001 of the Federal Service Tribunal, Islamabad passed in Appeal No.159(R)/1999).

Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑S. 3‑A‑‑‑Import of S.3‑A, Services Tribunals Act, 1973‑‑‑Benches of the Tribunal‑‑‑Where the Chairman and the Member of the Service Tribunal differed and there was no third Member in the Bench, Chairman, in such circumstances, was not competent to overrule the findings recorded by the Member‑‑‑Principles.

The import of section 3‑A, Service Tribunals Act, 1973 is that as a rule, the matter shall be decided according to the opinion of the majority. In the present case, the matter was heard by a Member and Chairman, who differed. Clause (c) of section 3‑A(2) is attracted only if there are more than one Member and they are equally divided and the Chairman is also a Member of said Bench. In such eventuality, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman. In the present case, the Chairman and the Member differed and there was no third Member in the Bench. In such circumstances, the Chairman was not competent to overrule the findings recorded by the Member.

The judgments of the Chairman and the Member were set aside and the matter was remanded to Chairman for constituting a fresh Bench, excluding himself and said Member, to hear the matter again for deciding the same on merits, as early as possible, preferably within four months from receipt of the Supreme Court order.

Salim Baig, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioners.

S.M. Abdul Wahab, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 17th January, 2002.

2002 S C M R 698

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Sardar Muhammad Raza Khan, JJ

MUHAMMAD SAMI ULLAH GHAURI, RESEARCH OFFICER, ISLAMABAD

‑‑ Petitioner

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN

and others‑‑‑Respondents

Civil Petition No.507 of 2001, decided on 30th January, 2002.

(On appeal from judgment/order dated 23‑12‑2000 passed by the Federal Service Tribunal, Islamabad in Appeal No.2095‑R of 1999).

Constitution of Pakistan (1973)‑‑‑

---‑Art. 212(3)‑‑Civil service‑‑‑Seniority‑‑‑Ad hoc post, appointment' against‑‑‑Notwithstanding the fact that a person was holding the charge of ad hoc post, but if he had been appointed as regular employee by the Federal Public Service Commission, he would be deemed to be in the permanent service of the Government and would be treated for the purpose of reckoning his seniority in the service on the date when he was recommended by the Public Service Commission‑‑‑Employee after his selection, though worked against ad hoc post, but his length of service for determining seniority would be counted from the date of recommendation made in his favour by the Public Service Commission and the person who was admittedly promoted after the recruitment of said employee through Public Service Commission, would be junior to him in rank‑‑‑Principles.

ESTACODE, 1989 Edn. p.227 ref.

Rana Muhammad Asghar Khan, Advocate Supreme Court and Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th January, 2002.

2002 S C M R 701

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal Syed Deedar Hussain Shah, JJ

MUHAMMAD IQBAL and another‑‑‑Petitioners

versus

Mst. NASIM AKHTAR‑‑‑Respondent

Civil Miscellaneous Application No.4233 and Civil Petition No.3164 of 2001, decided on 14th February, 2002.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 27‑8‑2001 passed in Writ Petition No.281 of 2001).

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 &. Sched.‑‑‑Constitution of Pakistan (1973), Arts. 199 & 185(3)‑‑­Suit for return of dowery articles‑‑‑District Judge had refused to allow return of the other articles which in the light of evidence on record stood admittedly given by way of dowery in the absence of any rebuttal or evidence that the goods mentioned in the list were not given as such‑‑‑District Judge, thus failed to read evidence on record and this was a case of gross misreading of record‑‑‑Judgment and decree of the District, Judge were held to be without lawful authority by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution‑‑‑Validity‑‑No misreading or non‑reading of evidence by the High Court was found‑‑‑High Court in its Constitutional jurisdiction rightly exercised its powers, wherein .the order of the District Judge was found contrary to the evidence recorded by the parties and his findings were perverse which resulted in miscarriage of justice‑‑‑Supreme Court declined interference in the findings of the High Court in circumstances.

Malik Qamar Afzal, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 14th February, 2002.

2002 S C M R 765

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

N.‑W.F.P. EMPLOYEES SOCIAL SECURITY INSTITUTION through D.G., Rehman Baba Colony, Peshawar‑‑‑Appellant

versus

Messrs RISING SUN KNIT WEAR LTD. Through Official Liquidator ‑‑‑Respondent

Civil Appeal No. 1251 of 1995, decided on 7th February, 2002.

(On appeal from the orders of Company Judge, Peshawar High Court, Peshawar, dated 21‑9‑1995 and 28‑9‑1995 passed in C. M. No. l of 1995 in C.C. 2 of 1994 ).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.17‑‑‑Constitution of Pakistan (1973), Art.185(2)‑‑‑Appeal dismissed for non‑prosecution‑‑‑Restoration‑‑‑Fixation of appeal without notice‑‑‑Validity‑‑‑Supreme Court considered the explanation offered on behalf of the appellant for non‑appearance on 21‑9‑1995, when appeal was dismissed for non‑prosecution‑‑‑Explanation of the appellant being bona fide, not intentional and appearing to be reasonable and correct, order passed by the High Court for dismissal of the appeal for non‑prosecution was

set aside and the case was remanded to, High Court for decision on merits.

M. Zahoor Qureshi Azad, Advocate‑on‑Record for Appellant.

Respondent: Ex parse.

Date of hearing: 7th February, 2002.

2002 S C M R 709

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Abdul Hameed Dogar, JJ

AMIR ALTAS KHAN and another ‑‑‑Petitioners

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Petitions No.72‑P and 73‑P of 2001, decided on 11th February, 2002.

(On appeal from order dated 24‑9‑2001 passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous/TA Nos.42 and 44 of 2001).

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

‑‑‑‑S. 526‑‑‑Transfer of case‑‑‑Principle‑‑‑Party cannot claim the transfer of case as a matter of routine or at its wishes unless it is shown from the record that in the circumstances a free and fair trial is not apparent on the face of it.

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

‑‑‑‑S. 526‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Transfer of case‑‑‑Although neither allegation of any bias had been made in the transfer application against the Presiding Officer of the Court nor it had been agitated specifically on behalf of the accused in the Court, yet the issuance of non‑bailable warrants against the accused who was a practising Advocate though released under S.169, Cr.P.C. by police, had created an apprehension in his mind that he would not have a fair and free trial at the hands of the concerned Sessions Judge, K‑‑‑Hostility was existing between the parties and blood fued was going on between them and the accused in circumstances could justifiably seek transfer of their case to any other neighbouring District on the apprehension of being killed on the way while going to the Court at K from P‑‑‑Petitions for leave to appeal were consequently converted into appeals which were allowed and the case was transferred from the Court of Sessions Judge, K, to the Court of another Sessions Judge, at different place for disposal according to law which would be convenient to both the parties.

Haji Khawar Saleem v. The State 2001 SCMR 905 ref.

M. Sardar Khan, Senior Advocate Supreme Court and Tasleem Hussain, Advocate‑on‑Record (absent) for Petitioners (in both Petitions).

M. Waris Khan, Addl. A.‑G., N.‑W.F.P. for the State (in both Petitions).

Barrister Masood Kausar, Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑on‑Record (absent) for Respondent No.3.

Date of hearing: 31st January, 2002.

2002 S C M R 713

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, J

MUNAWAR SHAH‑‑‑Petitioner

versus

LIAQUAT HUSSAIN and others‑‑‑Respondents

Criminal Petition No. 161 of 1999, decided on 2nd January, 2002.

(On appeal from the judgment dated 1‑7‑1999 of the Lahore High Court, Rawalpindi Bench, passed in Criminal Appeal No.26 of 1999).

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Where no ocular evidence is available connecting any of the accused with the commission of the offence alleged against them, it would not be safe to record conviction of the accused particularly when any link in the chain in the circumstantial evidence is missing.

Muhammad Ijaz Ahmad v. Raja Fahim Afzal ad 2 others 1998 SCMR 1281 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

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

‑‑‑‑S. 417‑‑‑Constitution of Pakistan (1973), Art.l85(3)‑‑‑Petition or appeal against acquittal‑‑‑Scope‑‑‑Ordinary scope of petition or appeal against acquittal of accused is considerably narrow and limited‑‑‑On the examination of the order of acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime.

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Principle‑‑‑Obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of the accused is attached to the order of acquittal.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/201/149‑‑‑Constitution of Pakistan‑(1973), Art.184(3)‑‑‑Petition for leave to appeal against acquittal‑‑‑Reappraisal of evidence and scrutiny of record revealed that the prosecution had failed to substantiate the accusations or to produce tangible evidence reasonably connecting the accused to the murder of the deceased‑‑‑Concurrent findings of the Courts below did not suffer from any impropriety, illegality or infirmity and the same were based on sound and cogent reasons warranting no interference by Supreme Court‑‑‑Leave to appeal was refused to the complainant accordingly.

Allah Ditta v. The State (PLD 1958 SC (Pak.) 290; Muhammad Iqbal v. The State 1984 SCMR 930; Allah Din and another v. The State 1976 PCr.L.J 249; Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Syed Zafar Abbas Naqvi, Advocate‑on‑Record and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd January, 2002.

2002 S C M R 718

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Rana Bhagwandas and Abdul Hameed Dogar, JJ

KULSOOM and another‑‑‑Petitioners

Versus

TRUSTEES OF PORT OF KARACHI through Chairman K.P.T., Karachi and 2 others‑‑‑Respondents

Civil Petition No.858‑K of 2001, decided on 13th December, 2001

(On appeal from the judgment dated 7‑9‑2001 of High Court of Sindh, Karachi passed in D‑1682 of 2000).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXIII R1 ‑‑‑Constitution of Pakistan '1973), Art 185(3)‑‑‑ Withdrawal of suit with permission to bring fresh suit on the same cause of action‑‑‑Supreme Court granted leave to appeal in the light of dictum laid down in the case of Karim Gul and another v. Shahzad Gul and another (1970 SCMR 141) to consider the contention of petitioner that his application for withdrawal of suit and permission for bringing fresh suit on the same cause of action, was one and indivisible, and Trial Court could either reject or accept both the prayers, but could not accept the one and reject the other.

Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141 ref.

Rehanul Hasan Farooqi, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 13th December, 2001

2002 S C M R 720

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Munir A. Sheikh and Nazim Hussain Siddiqui, JJ

AHMAD ZAMAN KHAN‑‑‑Petitioner

Versus

PROVINCE OF THE PUNJAB through District Collector, Multan and 2 others‑‑‑Respondents

Civil Petition No. 1910‑L of 1998, decided on 18th June, 2001.

(On appeal from order dated 15‑9‑1998 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No. 18‑D of 1998).

Tort‑‑‑

‑‑‑‑Suit for damages‑‑‑Plea of malice‑‑‑Plaintiff claimed damages from defendant‑Authority on account of having mentioned wrong Khewat number of his property in notice of demand of property tax‑‑‑Trial Court dismissed the suit, which decision was upheld in appeal and revision‑‑‑Validity‑‑­Plaintiff had paid tax of the property mentioned in demand notice‑‑‑Plaintiff, during cross‑examination, had made evasive replies and expressed ignorance regarding the Khewat in which his property was situated‑‑‑Wrong mention of property number did not show that defendant‑Authority had entertained any malice towards the plaintiff‑‑‑Supreme Court dismissed petition for leave to appeal.

M.A. Zafar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th June, 2001.

2002 S C M R 722

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ

SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS AND MINORITIES, GOVERNMENT OF PAKISTAN and 2 others‑‑‑Petitioners

Versus

Syed ABDUL MAJEED‑‑‑Respondent

Civil Petition No.186 of 2000, decided on 6th August, 2001.

(On appeal from the judgment dated 24‑11‑1998 of the High Court of Sindh, Karachi passed in C.P. 61 of 1985).

Evacuee Trust Properties (Management and Disposal) Act (XXI of 1915)------

---‑‑S.10(1)‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional petition‑‑‑Evacuee property was transferred through P.T.O. dated 28‑4‑1961 and P.T.D. dated 10‑6‑1965‑‑‑Deputy Administrator, Evacuee Trust Properties in year 1984 filed reference under M.L.R. 57 of 1983 stating therein that such property belonged to a Hindu Trust, thus, vested in Evacuee Trust Properties Board‑‑‑Chairman, Evacuee Trust Board cancelled the transfer in favour of respondent‑‑‑Constitutional petition tiled against such order was accepted by High Court holding that transfer of disputed property in favour of respondent stood validated in terms of S.10(1) of Evacuee Properties (Management and Disposal) Act, 1975, and as the same was "Sikni" and not agricultural, thus provisions of M.L.R. 57 were not attracted to it‑‑‑Validity‑‑‑None of the conditions enumerated in M.L.R. 57 of 1983 was applicable to disputed property‑‑‑Section ,10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, provided for validation of transfers made in good faith by Settlement Department, and transfer of disputed property fell within the framework of such provisions‑‑­No legal flaw could be pointed out by petitioners in impugned judgment, which was well‑reasoned and well‑founded, to which no exception could be taken‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

M.G. Dastagir, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

S. Nasir Hussain Jafri, Advocate‑on‑Record for Respondent.

Date of hearing: 6th August, 2001.

2002 S C M R 724

[Supreme Court of Pakistan

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Syed Deedar Hussain Shah, JJ

Doctor JAN MUHAMMAD and another‑‑‑Appellants

Versus

Mst. HAMIDA AKHTAR and another‑‑‑Respondents

Civil Appeal No. 1579 of 1995, decided on 21st March, 2001.

(On appeal from the judgment dated 6‑7‑1995 of the Peshawar High Court, Circuit Bench, Abbottabad in Civil Revision No.70 of 1995).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, R.I‑‑‑Specific Relief Act (I of 1877), S.42‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration‑‑‑Interim injunction‑‑­Leave to appeal was granted by the Supreme Court to consider the petitioner's contentions that respondent had alleged to be owner in possession of a specific plot out of disputed Khasra number, which was recorded as joint property in Revenue Record; it had not been proved that there had been private partition between shareholders and that respondent was sole owner of plot in question, which had yet to be determined by Court while disposing of the main case on merits; and that order passed on application for temporary injunction had actually disposed of the entire case affecting merits of the case.

Mushtaq Ali Tahirkheli, Advocate Supreme Court with Ch. Akhtar ‑‑Ali, Advocate‑on‑Record for Appellants.

Tanvir Bashir Ansari, Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Respondent No. 1.

Respondent No.2: Ex parse.

Date of hearing: 21st March, 2001.

2002 S C M R 727

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, Actg. C.J. and Wajihuddin Ahmed, JJ

Messrs CHAPAL BUILDERS‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petition No.686‑K of 1998, decided on 2th April., 1999.

(a) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑Ss. 7(1)(b)(d) & 9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑­Petitioner contended that levy of octroi in disputed area was unlawful and even mala tide as the upgradation of Union Council to Town‑Committee had been designed to circumvent the effect of Baba Corporation (Pvt.) Ltd. v. Province of Sindh, Karachi (PLD 1989 Karachi 136) as upheld in Union Council v. Baba Corporation (Pvt.) Ltd. (1993 SCMR'596); the areas of upgraded entity were neither compact nor contiguous; and that Government had neither waived any of such characteristics nor recorded reasons therefore‑‑‑Supreme Court granted leave to appeal to examine such contentions.

Baba Corporation (Pvt.) Ltd. v. Province of Sindh, Karachi PLD 1989 Kar. 136 and Union Council v. Baba Corporation (Pvt.) Ltd. 1993 SCMR 596 ref.

(b) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S.7(1)(b)(d)‑‑‑Disputed area was already a part of the urban area of Karachi Development Authority and, therefore, of the City of Karachi‑‑‑Such area could not be relegated to the status of a “town” in contravention of S.7 (1)(b) & (d) of the Sindh Local Government. Ordinance, 1979.

Abrar Hasan and Akhlaq. Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Munir‑ur‑Rehman, A.A.‑G. on Notice to A.‑G., Sindh for Respondents.

Date of hearing: 2nd April, 1999.

2002 S C M R 729

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION and others‑‑‑Appellants

versus

LYALLPUR COTTON MILLS, LTD. and others‑‑‑Respondents

Civil Appeals Nos. 243 to 250 and 870 of 1995, decided on 29th January, 2001.

(On appeal from the judgment dated 16‑6‑1993, 15‑6‑1993, of the Lahore High Court, Lahore in FAOs. Nos.87/84, 203/82, 207/81, 70/84, 195/81, 171/81, 202/82 and 101/85).

(a) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 64(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Petitioner's contention that imposition of penalty was governed by subjective considerations and did not raise any substantial question of law so as to invite interference by High Court‑‑Leave to appeal was granted by the Supreme Court to consider, whether High Court, in circumstances, was competent to set aside the orders imposing penalties upon the respondents.

(b) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 2(30)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider, whether allowances such as Atta subsidy, Cloth allowance, Cost of meal, Efficiency award, Long service award, Jersy and uniform allowance, Washing allowance and Cycle allowance, constituted "wages" within the definition of the expression as given in S.2(30) of Provincial Employees Social Security Ordinance, 1965.

(c) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 2(30)‑‑‑"Wages"‑‑‑Definition‑‑‑Essential and prerequisite for payment of wages is rendering of service or at least availability of employee at disposal of employer for service‑‑‑Definition of word "wages" as given in the Ordinance by including payments made by employer in respect of any period of illegal lock‑out or legal strikes has given effect to the principle that during these periods. employee must be deemed to be available for service with employer‑ ‑‑Definition of "wages" accords statutory status to such payment as if such were included in every contract of service‑‑‑Definition of "wages" cannot be extended to include therein every payment made by employer to employee‑‑‑Ex gratia payment by employer for well‑being of his employees or charitable grant for marriage of employee's children or scholarship for their education will not be covered by the definition of "wages".

Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1977 SC 177 and Messrs Consolidated Sugar Mills Ltd. v. Sindh Employees' Social Security Institution PLD 1991 SC 862 fol.

(d) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑S. 2(30)‑‑‑"Wages"‑‑‑Test for determination‑‑‑If the allowances/facilities/payments made by employer to his employee had any nexus with nature of duty assigned to or being performed by employee, then these would fall within ambit of definition of term "wages" as given in S.2(30) of Provincial Employees' Social Security Ordinance, 1965 otherwise, Social Security Institution would have no right to claim any contribution from employer in that regard.

National Embroidery Mills Limited v. Punjab Employees' Social Security Institution 1993 SCMR 1201; Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1977 SC 177; Brooke Bond Pakistan Limited v. Sindh Employees' Social Security Institution 1990 SCMR 175 and Messrs Consolidated Sugar Mills Limited v. Sindh Employees' Social Security Institution PLD 1991 SC 862 ref.

(e) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 2(30)‑‑‑"Wages"‑‑‑Facilities of Atta subsidy, Cloth allowance, Cost of meal, Jersy and uniform allowance, Washing allowance, has no direct nexus with nature of duty of employees of oganizations and has direct link with voluntary actions on the part of employers, who expect' that people around should talk about proper upkeep of their employees by them, but without any increase in their pay/allowances to attract wrath of Ordinance, relatable to their contribution to Social Security Institution.

(f) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 58‑‑‑Review‑‑‑Scope‑‑‑Social Security Court has no jurisdiction to review its earlier order in absence of any new material having been brought on record.

(g) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑S. 2(30)‑‑‑"Wages"‑‑‑Efficiency award and long service award‑‑?Efficiency Award was paid to worker in lieu of putting extra labour for enhancing efficiency of the establishment‑‑‑Such amount had direct nexus with labour put to by worker and was paid on consideration thereof as such was part of wages of worker on which Social Security contribution could be made‑‑‑Long service award was paid ex gratia by employer only to those workers, who remained in service for a long period and not to all workers generally‑‑‑Such amount was not part of "wages" of workers, on which no demand for social security contribution could be raised.

(h) Words and phrases‑‑‑

‑‑‑‑"Wages"‑‑‑Meaning‑‑‑"Wages" means a reward payable for service rendered; an amount paid periodically to workman/servant for the time during which he remained at disposal of his employer.

Hafiz Saeed Ahmad Sheikh, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants.

Javed Altaf, Advocate Supreme Court and Sh. Salahuddin, A yocate‑on‑Record for Respondents (in C.As. Nos. 244, 250 and 870 of 1995).

Raja M. Ibrahim Satti, Advocate Supreme Court and Mehr Khan

Malik, Advocate‑on‑Record for Respondents (in C.As. Nos.245, 247 and 248 of 1995).

A.A..Jafri, Advocate‑on‑Record (absent) for Respondents (in C.A. No. 870 of 1995).

Respondent in other Appeals: Ex parte.

Date of hearing: 25th January, 2001.

2002 S C M R 738

[Supreme Court of Pakistan]

Present: Nasim Hussain Siddiqui and Javed Iqbal, JJ

COLLECTOR OF CENTRAL EXCISE AND SALES TAX‑‑‑Appellant

versus

RUPALI POLYESTER LIMITED and others‑‑‑Respondents

Civil Appeals Nos.1492 and 1493 of 1996, decided on 25th September, 2001.

(On Appeal from the judgment/order dated 21-1-1996 passed by Lahore High Court, Lahore, in Writ Petitions Nos.1052 and 1053 of 1995)

(a) Sales Tax Act (III of 1951)‑

‑‑‑‑S.30‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)_‑‑Refund of excess sales tax‑‑‑Contention of the Authorities was that under S.30‑A of the Sales Tax Act, 1951, any amount collected by way of sales tax which in fact was not payable as tax or which was in excess of the tax had to be paid to the Federal Government ‑and that the company had in fact collected the sales tar from the consumers and, therefore, the company was not entitled to any refund on the ground that it was not liable to pay the tax because the products in question were exempt from the levy of the sales tax‑‑‑Authorities further alleged that the company did not specifically deny in the reply to show‑cause notice that it did not collect the sales tax from the consumers of the goods in question‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to examine, inter alia, the contentions of the Authorities.

(b) Central Excise Rules, 1944‑‑‑

‑‑‑‑R. 10‑‑‑Short levied or erroneous refund of excise duty ‑‑‑Recovery‑‑­Object and scope of provisions of R.10 of the Central Excise Rules, 1944‑‑­Main object of R.10 of the Central Excise Rules, 1944, is to provide limitation in different situations arising out of levying and recovery of the excise duty which cannot be made beyond the period of limitation‑‑‑Rule 10 has nothing to do with the claims pertaining to refund but on the contrary it deals with those cases where some erroneous refund has been made and its recovery is involved.

PTCL 1984 CL 24 ref.

(c) Central Excise Rules, 1944‑‑‑

‑‑‑‑R.9‑‑‑Excise duty, refund of‑‑‑Tax paid on account of some mistake of law/fact or compulsion‑‑‑Effect‑‑‑Such payment cannot be refunded under R.9 of 'the Excise Rules, 1944, because mistake of law/fact in inadvertence or error are quite distinct to each other and neither synonymous not interchangeable.

1994 CLC 994 ref.

(d) Interpretation of statutes‑‑

‑‑‑‑ Object of‑‑‑Intention of the Legislature‑‑‑Canons of construction and rules of interpretation are directed to one and only one end, namely, towards finding out the intention of the Legislature when such intention is clear, then there is no room for praying in aid any extreanous principle of interpretation or canons of construction.

Mozzaffar Ahmad v. Anwar Ali PLD 1965 Dacca 296; PLR 1964 Dacca 906 and 16 DLR 336 ref.

(e) Notification‑‑‑

‑‑‑‑Vires of notification‑.‑‑Determination‑‑‑Principles‑‑‑Purpose or purposes for which a notification is issued would be relevant in determining the vires of a notification‑‑‑One of the practical and effective ways of proliferating the purpose is to see how for the suggested meaning destroys and defeats or promotes the ultimate purpose‑‑‑Court, in such a research, is not confined to the literal meaning o: the words used in the notification but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the notification in question.

Bindra's 'Interpretation of Statutes, 7th Edn, p‑833 ref.

(f) Notification‑‑

‑‑‑‑ Fiscal notifications‑‑‑Interpretation of‑‑‑Principles‑‑‑No undue advantage could be taken on the basis of far‑fetched or scholarly interpretation which the plain language does not imply nor intended to mean.

(g) Sales Tax Act (III of 1951)‑‑

‑‑‑‑S. 30‑A‑‑‑Central Excise Rules, 1944, Rr.9, 10 , & 11‑‑‑Notification No.S.R.O.‑666(1)/81, dated 25‑6‑1981‑‑‑Sales tax, refund of‑‑‑Goods exempted from sales tax‑‑‑Company claimed refund of sales tax which was deposited erroneously‑ ‑‑Authorities declined the demand raised by the company‑‑‑Orders of the authorities were assailed before High Court in exercise of Constitutional petition which was allowed‑‑‑High Court directed the Authorities that the claim of refund of the sales tax had to be processed under the relevant Excise Laws and not under S.30‑A of the Sales Tax Act, 1951‑‑‑Validity‑‑‑Where all rates of the goods in question were inclusive of sales tax meaning thereby that the rates were fixed on higher side after deduction of the sales tax paid and its burden was shared by the consumer the question of its return to the company would not arise‑‑‑Company while replying to show‑cause notice did not specifically deny that the sales tax was not collected from the customers and it was deposited‑‑‑Sales tax having been collected by the company from the customers and for the Government, company had no locus stand/ to show‑cause for its return‑‑‑Judgment passed by High Court in Constitutional petition was set aside by the Supreme Court.

Muhammad Yasin v. Ghulam Murtaza PLD 1988 SC 163; Mehreen Zaibun Nisa v. Land Commissioner PLD 1975 SC 397; Ellahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Friends Sons v. Deputy Collector PLD 989 Lahore 337; Commissioner of Sales Tax v. Associated Hotels (India) Ltd. 1969 SMCR 281; Hotel Midway House Ltd. Karachi v. Director‑General/Commissioner, Excise and Taxation Department, Karachi 1993 SCMR 1712 and Sajjad Nabi & Co. v. Commission, of Income‑tax PLD 1977 SC 437 ref.

Izharul Haque, Advocate Supreme Court and Gulzar Hassan, Advocate‑on‑Record (absent) for Appellants.

Syed Ali Zafar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No. 1.

Date of heating: 25th September, 2001.

2002 S C M R 751

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

SARFARAZ KHAN‑‑‑Petitioner

versus

NIAMATULLAH KHAN‑‑‑Respondent

Civil Petition for Leave to Appeal No. 133‑P of 2001, decided on 22nd January, 2002.

(On appeal from the judgment dated 8‑2‑2001 of the Peshawar High Court, Peshawar passed in Civil Revision No.44 of 2000).

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

‑‑‑S.13‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Performance of Talb‑i‑Muwathibat‑‑‑Question of fact‑‑‑All the three Courts below, in the light of evidence had rightly decided the issue in the positive‑‑‑Supreme Court declined to interfere, particularly when the finding also happened to be in accordance with evidence.

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

‑‑‑‑Ss. 8, 9 & 22‑‑‑Joint right of pre‑emption could be exercised by a person, by a class or group of persons either jointly or severally as provided under S.8, N.‑W.F.P. Pre‑emption Act, 1987‑‑‑If, however, more than one persons were found by the Court to be equally entitled to the right of pre­emption the property would be distributed amongst them in equal shares‑‑­Where there was no rival suit before the Court but the vendee claimed improvement in his status, no improvement made in the status of a vendee would be taken into consideration if made after the institution of the suit for pre‑emption ‑‑‑Contiguous property having been purchased by the vendee during the pendency of the suit for pre‑emption, vendee in circumstances could derive no premium therefrom.

Joint right of pre‑emption can be exercised by a person, by a class or group of persons either jointly or severally as provided under section 8 of the N.‑W:F.P. Pre‑emption Act, 1987. Under section 9 of the Act, where more than one person are found by the Court to be equally entitled to the right of pre‑emption the property shall be distributed amongst them in equal shares. In the present case, there was no rival suit claimant but the vendee improved his status which was unequivocally explained by section 22 of the Act which lays down that no improvement made in the status of a vendee shall be taken into consideration if made after the institution of suit for pre­emption. The contiguous property having been purchased by the vendee during the pendency of suit for pre‑emption, the vendee could, derive no premium therefrom.

Haji M. Zahir Shah, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd January, 2002.

2002 S C M R 753

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore and 2 others‑‑‑Appellants

versus

Khawaja ABDUL WAHEED‑‑‑Respondent

Civil Appeal No. 324 .of 1999, decided on 30th January, 2002.

(On appeal from judgment dated 9‑8‑1997 of Federal Service Tribunal, passed in Appeal No.372(L) of 1996).

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

‑‑‑‑S. 5-‑‑Government Servants (Efficiency and Discipline) Rules, 1973, Rr.3(c) & 4(b)(i)(iii)‑‑‑Constitution of Pakistan (1973),.Art.212(3)‑‑‑Charge of corruption/misappropriation against civil servant‑‑‑Modification of nature of punishment/penalty and reduction by Service Tribunal‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider whether Service Tribunal, after upholding ‑the findings of the Departmental Authorities in disciplinary proceedings, about guilt of the civil servant, was vested with the power to interfere with and modify the nature of punishment/penalty and to reduce the same from removal from service reduction in rank for two years.

(b) Civil service‑‑‑

‑‑‑‑ Charge of corruption/misappropriation was proved against the ` civil servant ‑‑‑Appropriate forum for determination if the civil servant was to be allowed to continue in service or not was the Departmental Authority whose opinion was to be given a weight unless otherwise was shown‑‑‑Principles.

In the present case charge of corruption/misappropriation was proved against the civil servant. Under such circumstances, the appropriate forum for determining if he was to be allowed to continue in service or not was the departmental authority, whose opinion shall be given due weight, unless otherwise is shown. The department authority knows better thap anybody else to decide such issue. After the charge of misappropriation/corruption is established, the normal punishment shall be removal/dismissal from service. Lenient view in such matters would destroy the fibre of discipline in service, besides encouraging others to resort to such illegal activities as to enrich themselves by illegal means with impunity at the cost of welfare of the society for whose benefit they are employed. Such civil servants were not entitled to any leniency.

S.M. Masud, Advocate Supreme Court for Appellants.

M. Anwar Sipra, Advocate Supreme Court for Respondent.

Date of hearings 30th January, 2002.

2002 S C M R 757

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Mst. BASHIRAN and 2 others‑‑‑Appellants

versus

SARDAR ALI and 3 others‑‑‑Respondents

Civil Appeals Nos.995 and 996 of 1995, decided on 13th February, 2002.

(On appeal from judgment dated 29‑3‑1994 passed by the Lahore High Court, Multan Bench, . Multan in Writ Petitions Nos. 2752‑R/76 and 2017‑R/76).

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal to Supreme Court‑‑‑Allotment of land‑‑‑Order directing the property to be equally divided between the parties and finding of fact recorded by the Additional Commissioner (Consolidation) with regard to allotment of land and the details of original owners and the party taking advantage of the situation on account of their being minors and manipulating re‑allotment of their temporarily allotted property in the name of a person and getting another person included as a family member, without any order from any competent Rehabilitation Authority and without any notice to the concerned party, was challenged before the High Court‑‑‑Judgment of the High Court was based on the proper appreciation of the facts and law and no jurisdictional error or misconstruction of law was found therein rather the judgment was based on the principles of equity, fair play, and justice‑‑‑High Court, in its wisdom had done complete justice to the parties‑‑‑Impugned judgment of the High Court being not open to exception, Supreme Court declined interference.

Ch. Noor Ilahi, Advocate Supreme Court for Appellants (in C.A. No.995 of 1995).

M. Zainul Abidin, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Respondents (in C.A. No.995 of 1995).

M. Zainul Abidin, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellants (in C.A. No.996 of 1995).

Ch. Noor Ilahi, Advocate Supreme Court for Respondents (in.C.A. No.996 of 1995).

Date of hearing: 13th February, 2002.

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2002 S C M R 765

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

N.‑W.F.P. EMPLOYEES SOCIAL SECURITY INSTITUTION through D.G., Rehman Baba Colony, Peshawar‑‑‑Appellant

versus

Messrs RISING SUN KNIT WEAR LTD. Through Official Liquidator ‑‑‑Respondent

Civil Appeal No. 1251 of 1995, decided on 7th February, 2002.

(On appeal from the orders of Company Judge, Peshawar High Court, Peshawar, dated 21‑9‑1995 and 28‑9‑1995 passed in C. M. No. l of 1995 in C.C. 2 of 1994 ).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.17‑‑‑Constitution of Pakistan (1973), Art.185(2)‑‑‑Appeal dismissed for non‑prosecution‑‑‑Restoration‑‑‑Fixation of appeal without notice‑‑‑Validity‑‑‑Supreme Court considered the explanation offered on behalf of the appellant for non‑appearance on 21‑9‑1995, when appeal was dismissed for non‑prosecution‑‑‑Explanation of the appellant being bona fide, not intentional and appearing to be reasonable and correct, order passed by the High Court for dismissal of the appeal for non‑prosecution was

set aside and the case was remanded to, High Court for decision on merits.

M. Zahoor Qureshi Azad, Advocate‑on‑Record for Appellant.

Respondent: Ex parse.

Date of hearing: 7th February, 2002.

2002 S C M R 767

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

AURANGZEB KHAN and others‑‑‑Appellants

versus

MUHAMMAD JAFFAR alias JAFFAR and others‑‑‑Respondents

Civil Appeal No. 1829 of 1998, decided on 29th September, 2000.

(On appeal from the judgment, dated 15‑5‑1998 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.292‑D of 1984).

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

‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art.185(3) ‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the High Court had incorrectly interfered with the judgments of the two Courts below in exercise of revisional jurisdiction under 5.115, C.P.C.

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

‑‑‑‑S 15‑‑‑Revision‑‑‑Concurrent finding 'of fact by two Courts below‑‑‑High Court remanding the case to Trial Court with certain observations for decision afresh‑‑‑Validity‑‑‑Civil revision ought to have been decided by the High Court itself, when it had formed the view, after having discussed the entire evidence on record at length that the concurrent findings of fact recorded by the two Courts below were the outcome of misreading of the material evidence and the evidence on record was sufficient to establish the case‑‑‑Observations made by the High Court on certain striking features of the case would influence the mind of the Trial Court who had been directed to consider the evidence and the points arising in the case‑‑‑Judgment passed by High Court was set aside and case was remanded to High Court for decision on merits afresh.

Syed Misbahul Hasan Abidi, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record (absent) for Appellants.

M. Zaman Bhatti, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 29th September, 2000.

2002 S C M R 769

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

ABDUL WAHEED and another‑‑‑Petitioners

versus.

SECRETARY, MINISTRY OF CULTURE, SPORTS, TOURISM AND YOUTH AFFAIRS, ISLAMABAD and another‑‑‑Respondents

Civil Petitions Nos. 1521 and 1'522 of 2000, decided on 10th January, 2002.

(On i appeal from the. judgment of Federal Service Tribunal dated 27‑7‑7‑2000 passed in Appeals Nos.301(R) of 1999 and 304(R) of 1999, respectively).

Constitution of Pakistan (1973)‑‑-

‑‑‑‑Art. 212(3)‑‑‑Reversion to previous post‑‑‑Illegal appointment‑‑‑Officiating Authority, without proper sanction and allocation of budget and without following the prescribed procedures including advertisement of the posts in newspaper, appointed the civil servants to such posts‑‑‑Competent Authority having found the promotions/appointments as irregular, cancelled the same and reverted the civil servants to their original posts‑‑‑Order of reversion was upheld by Service Tribunal‑‑‑Validity‑‑‑Such appointments made by the Officiating Authority without following the prescribed procedure would not be legal and consequently the civil servants neither had any right to hold such posts nor were entitled to the salaries and other benefits attached with the posts‑‑‑Service Tribunal having considered all aspects of the matter and the pleas taken on behalf of the civil servants in the appeals, found that the orders of appointment/promotion of the civil servants were illegal and void ab initio‑‑‑View taken by Service Tribunal being not violative of any law Supreme Court refused leave to appeal.

Raja M. Ibrahim Satti, Advocate Supreme Court for Petitioners Nemo for Respondents.

Date of hearing 0th January, 2002,

2002 S C M R 772

[Supreme Court of Pakistan

Present: Nazim Hussain Siddiqui, Rana Bhagwandas and Abdul Hameed Dogar, JJ , .MUMTAZ ALI BOHIO and 24 others‑‑‑Petitioners

versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman at Islamabad and another‑‑‑Respondents

Civil Petition No. 996 of 2001, decided on 14th December, 2001

(On appeal from the judgment dated 24‑10‑2001 of High Court of Sindh, Karachi passed in. C. Ps. Nos. 12.i and 1430 of 2001), (a) Federal Public Service Commission Ordinance (XLV of 1977)‑‑‑

‑‑‑, Ss.7‑A & 10‑‑‑Competitive Examination Rules, 2000, Rr.4(i) and 8(vi)‑‑­Competitive Examination Rules, 2001‑‑‑Constitution 'of Pakistan .(1973), Arts.‑ 185(3) & 199‑‑‑Constitutional petition ‑‑‑C.S.S. Examination held in November, 2000 under Competitive Examination Rules, 2000‑‑‑Petitioners appeared in C.S.S. examination, but failed‑‑‑Contention of petitioners was that they had acquired vested rights to clear the examination by making extra attempts in year 2001 subject to maximum age limits as prescribed under Rules of 2000; and that Rules of 2001 could not be given retrospective effect so as to affect their vested rights‑‑‑High Court dismissed the petition holding that Rules of 2000 were applicable to examination held in that year, whereas examination to be held in year 2001 would be governed, by the Rules prescribed for such year‑‑‑Validity‑‑‑Competency of Public Service Commission to change the. Rules in public interest could not be challenged‑‑­No candidate had vested right to be governed by any particular set of Rules‑­‑Public Service Commission could make any alteration in the recruitment policy before finalization of the appointments‑‑‑Where rules were changed/altered, then the latter rules would supersede the former‑‑‑Vested rights originate from contracts, statutes and by operation of law, but none of such conditions was attracted to petitioners' case‑‑‑Rules of 2000 could not be invoked for examination to be held in year 2001, when the rules of latter year were available‑‑‑Order of High Court was perfectly correct warranting no interference‑‑‑Supreme Court refused to grant leave to appeal.

(b) Vested rights‑‑‑

‑‑‑‑Origin of‑‑‑Vested rights originate from contracts, statutes and by operation of law.

(c) Educational institution‑‑‑

‑‑‑Vested right‑‑‑No candidate has a vested right to be governed by any particular set of Rules.

Abdul Ghafoor Mangi, Advocate Supreme. Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nerno for Respondents.

Date.of hearing: 14th December, 2001

2002 S C M R 775

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

ZAFAR YASIN‑‑‑Applicant

versus

PRIME MINISTER OF PAKISTAN and another‑‑‑Respondents

Civil Appeal No. 1224 of 1995, decided on 17th February, 1999.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 3‑A(2)(b) & 4‑‑‑Fundamental Rules, R.29‑‑‑Constitution of Pakistan (1973), Art.212(3)‑-‑Appeal‑‑‑Service Tribunal awarded penalty of reduction in time scale to the civil servant by three stages, but did not specify the period from which it had to operate‑‑‑Chairman of Tribunal, in exercise of powers under S.3‑A(2)(b) of Service Tribunals Act, 1973, after having noticed this omission on the part of both the Members of Tribunal, directed the Authority to take into consideration the omission and pass an appropriate order under Fundamental Rules, F.R.29‑‑‑Validity‑‑‑Service Tribunal was bound to specify the period for which penalty of reduction by three stages in time scale. had to operate in line with Fundamental Rules, R.29‑‑Supreme Court remanded the case to Service Tribunal to do the needful within two months.

Haliz S.A. Rehman, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 17th February, 1999.

2002 S C M R 777

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rona Bhagwandas, JJ

Syed WEEDHAL SHAH through Legal Heirs and others‑‑‑Petitioners

versus

PROVINCE OF SINDH through Deputy Commissioner, Khairpur and others‑‑‑Respondents, Civil Petition for Leave to Appeal No.398‑K of 1999, decided on 25th April, 2000.

(On appeal from the order, dated 4‑6‑1999 of the High Court of Sindh, Bench at. Sukkur, passed in Civil Revision No.78 of 199R).

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

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Discretion of Court‑‑‑Grant or refusal of interim relief by Court below ‑‑­Interference by Supreme Court‑‑‑Scope‑‑‑Supreme Court does not ordinarily interfere with exercise of discretion in an interlocutory matter‑‑‑Grant of interim relief or otherwise rests solely in the discretion of the Court seized of the matter, and unless it is shown that such discretion was exercised arbitrarily or in a perverse manner or against the settled principles of law, Supreme Court would be reluctant to substitute its view for the view expressed by the High Court.

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

‑‑‑‑O.XXXIX, Rr. I & 2 read with S.115‑‑‑Temporary injunction‑‑‑Both judgments of Trial Court dismissing plaintiffs' suit and that of Appellate Court dismissing their appeal were assailed in 6,41 revision before High Court; in which they moved application under O.XXXIX, Rr. 1 & 2, C.P.C. for restraining the respondents from interfering with their rights title and possession over the suit land‑‑‑High Court declined such prayer by tentatively observing that findings of Appellate Court with regard to alleged claim of possession over disputed land were against the plaintiffs, therefore, no prima facie case for grant of interim relief had been made out ‑‑‑Validity‑‑­Appellate Court having found the issues relating to grant of land and actual possession thereof against the plaintiffs, there could be no cavil with the view taken by High Court tentatively‑‑‑Question of possession being essentially a question of fact depending on various factors and being sub judice before High Court, it would not be fair and proper for Supreme Court to make any specific observation‑‑‑No case for grant of leave .to appeal having been made out, Supreme Court dismissed the petition

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondents Nos. l to 3 and 5 to 7.

Shahenshah Hussain, Advocate Supreme Court and A.A. Khan, Advocate‑on‑Record for Respoudent No.4:

Date of hearing: 25th April, 2000.

2002 S C M R 780

[Supreme Court of Pakistan]

Present: Sh. Ijaz 7fisar, Sh. Riaz Ahmed and Ch. Muhammad Arif JJ

KHALIL‑UR‑REHMAN‑‑‑Apppellant

versus

SECRETARY INTERIOR, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others‑‑‑Respondents

Civil Appeal No. 1300 of 1995, decided on 17th February, 1999.

(On appeal from the judgment dated ‑17‑7‑1995 passed by the Federal Service Tribunal in Appeal No. 189‑R of 1995).

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

‑‑‑‑S, 4‑‑‑Punjab Police (Efficiency and Discipline) Rules, 1975, Rr.4(1)(b)(iv) & 14‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider, whether Service Tribunal was justified in dismissing appeal of petitioner which was admittedly within time on the ground that his earlier appeal against final order of Departmental Authority filed before Tribunal was barred by limitation, when Tribunal itself had permitted withdrawal of earlier appeal with observation that he would be at liberty to approach the Tribunal once again after receipt of final reply from the Authorities on his representation, and the second appeal tiled by him was within time from the date of last order.

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

‑Art. 212(3)‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Petition for leave to appear‑‑Delay of thirteen days‑‑‑Supreme Court dismissed the petition for leave to appeal on account of unexplained delay of thirteen days.

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

‑‑‑‑S. 4‑‑‑Punjab Police (Efficiency and Discipline) Rules, 1975, Rr.4(l)(b)(iv) & 14‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Appeal‑‑‑Limitation‑‑‑Civil servant was dismissed from service and after remaining unsuccessful in departmental appeal, he submitted petition to the Minister‑‑‑Civil servant's appeal filed before Service Tribunal against order of Departmental Authority was beyond time by years, but he voluntarily withdrew the same with permission of Tribunal to approach again on receipt of order of , Minister on his petition‑‑‑Service Tribunal dismissed second appeal as 'time‑barred, which was filed against order of the Minister‑‑­Validity‑‑‑Application/representation made to the Minister was an extra ­departmental appeal, which would not extend period of limitation, which had expired much earlier before filing of previous appeal ‑‑‑Permission granted by Service Tribunal to approach it again after receipt of order of the Minister could not be equated with making his subsequent appeal being within time‑‑‑Tribunal had rightly found that subsequent application/representation to Authorities other than Appellate Authority would not extend period of limitation‑‑‑Supreme Court dismissed the appeal being without merit.

Israr Ahmed Khan v. Government of. N.‑W.F.P. and others 1990 SCMR 1356; Malak Muhammad Khan v. Inspector‑General of Police and others 1992 SCMR 1136 and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882 ref.

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

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Limitation‑‑‑Extra‑departmental appeal‑‑‑Effect‑‑­Application/representation of the civil, servant to Authorities other than Appellate Authority could not extend the period of limitation.

Sh. Riaz‑ul‑Haq, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Maulvi Anwarul Haq, Deputy Attorney‑General with Raja Abdul

Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 17th February, 1999.

2002 S C M R 785

[Supreme Court of Pakistan]

Present: Munawar Ahmad Mirza and Ch. Muhammad Arif, JJ

SAKHAWAT ALI and others‑‑‑Appellants

versus

DEPUTY SETTLEMENT AND REHABILITATION COMMISSIONER and others‑‑‑Respondents

Civil Appeal No. 710 of 1995, decided on 17th December, 1998:

(On appeal from the judgment, dated 29‑5-1993 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Writ Petition No. 198‑R of 1978/BWP).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIH of 1958)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider, whether disputed premises was a well or not, and whether a well could be allotted to an individual.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑Ss.3 & 4‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑‑Evacuee property‑‑‑Nature‑‑‑Determination of‑‑­Deputy Settlement Commissioner transferred property in dispute in favour of respondent treating the same as evacuee property‑‑‑Appellants filed writ petition against such transfer contending that same was non‑evacuee‑‑‑High Court refused to give relief on the ground that appellants had themselves unsuccessfully applied in the past for its transfer as evacuee property, thus, they could not dispute its nature‑‑‑Validity‑‑‑Such findings could not be equated with a finding about the nature of property in dispute‑‑‑Applicability of Displaced Persons (Compensation and Rehabilitation) Act, 1958 to property to dispute was not considered at any point of time between year, 1947 to 1974, when Act of 1958 was repealed and only pending matters were to be dealt with under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑‑Supreme Court set aside orders of High Court and Deputy Settlement Commissioner, and remanded the case to Notified Officer for decision of questions: as to whether property in dispute was ever declared as evacuee; whether appellants had actually filed application form and matter could be deemed pending for being dealt with under evacuee laws; and whether "well" could be treated as "evacuee property".

Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and 2 others PLD 1964 SC 829 and Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 ref.

Mahmood A. Qureshi, Advocate‑on‑Record for Appellants.

Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 17th December, 1998.

2002 S C M R 789

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mina, JJ

Ch. AKBAR HUSSAIN‑‑‑ Petitioner

versus

Mrs. ZEHRA BAI‑‑‑Respondent

Civil Petition for Leave to Appeal No.4‑K of 2001, decided on 6th December, 2001.

(On appeal from the judgment of the High Court of Sindh at Karachi dated 12‑12‑2000, passed in F.R.A. No.773 of 2000).

Cantonments Rent Restriction act (XI of 1963)‑‑‑

‑‑‑‑S. 17(4)(b)(i)‑‑‑Bona tide personal need of landlady‑‑‑Commercial building‑‑‑Requirement of landlady for her son‑‑‑Landlady did not mention that the shop was required for herself and admitted that she had never done any job or business and she did not file the case for her personal use‑‑‑Rent Controller dismissed the petition but High Court allowed the same‑‑‑Validity‑‑‑Complete restriction had been imposed by the Cantonments Rent Restriction Act, 1963, on ejectment of tenant from commercial premises and the same could only be made where personal bona fide requirement of landlord or landlady for his or her occupation was proved‑‑‑Admission of landlady had shattered her own case and she was not able to prove her bona tide requirements of the demised premises‑‑‑Judgment passed by High Court was set aside and that of the Rent Controller was restored‑‑‑Petition for leave to appeal was converted into appeal and was allowed.

Nek Muhammad v. Hafiz Abdul Hameed 1989 CLC 732; Muhammad Yousuf v. Mrs. Noor Jehan Bi through Attorney 2000 CLC 1252: Col. (Retd.) Dr. Wahaj A. Mirza v. The District Judge, Karachi and 2 others 1983 CLC 1036 and Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz 1994 SCMR 355 ref.

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

Mumtaz Ahmad Sh., Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent.

Date of hearing: 6th December, 2001.

2002 S C M R 793

[Supreme Court of Pakistan]

Present: Sheikh Riaz Ahmed and Ch. Muhammad Arif, JJ

Munish JAN MUHAMMAD‑‑‑Appellant

versus

ADDITIONAL DEPUTY COMMISSIONER (GENERAL), SIALKOT and others‑‑‑Respondents

Civil Appeal No.503 of 1994, decided on 8th March, 1999.

(On appeal from the judgment, dated 13‑4‑1993 passed by the Lahore High Court, Lahore in Writ Petition No. 167‑R of 1990).

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider, whether Notified Officer had jurisdiction to re‑open a decided case and transfer disputed property to respondents within the contemplation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑Ss.2(4) & 30(5)‑‑‑Settlement Scheme NO.VIII‑‑‑Evacuee property‑‑­'Transfer in favour of appellant and predecessor‑in‑interest of respondent had attained finality in the years 1961 and 1963 respectively‑‑‑Other respondents claiming possession from 1972, 1973 and 1974 respectively filed Transfer Forms in the year 1973 under Settlement Scheme No.VIII, and were transferred certain portions of house in dispute, and High Court upheld such transfer‑‑‑Validity‑‑‑Transfer of house in dispute in favour of appellant and predecessor‑in‑interest of respondent in years 1961 and 1963 had put at rest the controversy between the said transferees then‑‑‑Had other respondents any complaint against such transfer' they would have joined the arena much before and not waited till the year 1973 to claim protection of their alleged possession‑‑‑Absence of such respondents to put in appearance in the case made doubtful the nature of their alleged possession‑‑‑Supreme Court accepted the appeal, set aside the judgment of High Court, and upheld the transfer in favour of appellant and predecessor‑in‑interst of respondent.

Messrs Talib Hussain Noor Hussain v. Muhammad Hussain Siddiqui and 3 others 1968 SCMR 1316 and Mian 2;ahoor Ahmed v. Mst. Khurshid Ishrat and others 1998 MLD 1966 ref.

Ch. Hafeez Ahmed, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant.

Nemo for Respondents.

Date of hearing: 8th March, 1990.

2002 S C M R 798

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

ALLAHWALA FOUNDATION‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.277‑K of 2000, decided on 10th July, 2000.

(On appeal from the judgment dated 14‑4‑2000 of High Court of Sindh, Karachi, passed in R. A. No. 128 of 1999).

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

‑‑‑‑O.IX, R,8‑‑‑Applicability‑‑‑Where only defendant appeared, O.IX, R. 8, C.P.C. could be invoked.

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

‑‑‑‑0. IX, Rr. 3, 8 & 9 read with O.VII, R.11, O.XXXIX, Rr.l, 2 & S.11‑‑‑Constitution of Pakistan‑ (1973), Art. 185(3)‑‑‑Trial Court dismissed entire suit for non‑prosecution on 16‑4‑1996, when only application under O.XXXIX, Rr. 1 & 2, C.P.C. was fixed for hearing‑‑‑Application under O.IX, R.9, C.P.C., made by plaintiff for setting aside such order was also dismissed‑‑‑Plaintiff then filed fresh suit on same facts and for same relief‑‑­Trial Court on defendants' application under O.VII, R.11, C.P.C. rejected the plaint holding the suit being hit by the principle of res judicata‑‑‑Appeal filed by plaintiff met the same fate as well as the revision before High Court‑‑‑Validity‑‑‑High Court had treated the dismissal order dated 16‑4‑1996 as an order under O. IX, R.8, C. P. C., whereas nowhere in it was mentioned that defendants or any one of them was present at the time of its passing‑‑‑Order IX, R.8, C.P.C., could be invoked, where only defendant appeared‑‑‑Plaintiff's case was covered by O.IX, R.3; C.P.C., ‑and not by R.8 thereof‑‑‑Upon admission of defendant about plaintiff's claims, decree could be passed under O.IX, R.8, C.P.C., either in full or in part to the extent of admission‑‑‑Since O. IX, R.8 had been incorrectly applied‑‑‑R. 9 Earring fresh suit could not be invoked‑‑‑Only application under O.XXXIX, Rr. I & 2, C.P.C. could be dismissed by order, dated 16‑4‑1996 and not the suit, which was not called for hearing on such date‑‑‑Dismissal of earlier suit was against the provisions of O.IX, C.P.C.‑‑‑Issues raised in earlier suit had not been heard and finally decided, thus, dismissal of subsequent suit under O. VI, R.11, C.P.C. was not sustainable as the principle of 'res judicata' was not attracted to it‑‑‑Supreme Court accepted appeal, set aside impugned orders/judgments passed by Courts below and restored the earlier suit to its original position and directed the Trial Court to decide it on merits according to law.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioner.

Ainuddin, Additional Advocpte‑General, Sindh for Respondent No. 1.

Manzoor Ahmad, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 10th July, 2000.

2002 S C M R 801

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

ABDUL GHAYYAS and others‑‑‑Petitioners

versus

BIBI RAHIMA and others‑‑‑Respondents

Civil Petition No. 135‑Q of 2001, decided on 18th February, 2002

(On appeal from the judgment, dated 19‑10‑2001 passed by High Court of Balochistan in Civil Revision No. 102 of 2001).

(a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑S.18‑‑Court Fees Act (VII of 1870), S.7‑‑‑Suits Valuation Act (VII of 1887), S.8‑‑‑Forum of appeal‑‑‑Determination‑‑‑Valuation for appellate forum had to be determined in view of S.18 of the West Pakistan Civil Courts Ordinance, 1962.

PLD 1999 Quetta 36 rel.

(b) West Pakistan Civil Courts Ordinance (II of 1962)‑‑

‑‑‑‑S.18‑‑‑Court Fees Act (VII of 1870), S.7(v)‑‑‑Suits Valuation Act (VII of 1887), S.8‑‑‑Constitution of Pakistan (1973), Art .185(3)‑‑‑Supreme Court granted leave to appeal to consider, whether in a situation, when for the relief of partition, the suit had not been valued at all for purposes of jurisdiction or court‑fee, the Court would be competent to make reference to any other proved document available on record, and if not so, whether Appellate Court had not travelled beyond its jurisdiction under S.18 of West Pakistan Civil Courts Ordinance, 1962.

PLD 1999 Quetta 36 and 1999 SCMR 394 ref.

S.A. M. Quadri, Advocate‑on‑Record for Petitioners.

Imranul Haq, Advocate Supreme Court and W.N. Kohli, Advocate­-on‑Record (absent) for Respondents.

Date of hearing: 18th February, 2002.

2002 S C M R 805

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Tanvir Ahmed Khan, JJ

KHALID MAHMOOD CH. and others‑‑‑‑Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary, Livestock and Dairy Development‑‑‑‑Respondent

Civil Petitions for Leave to Appeal Nos.3282‑L and 3285‑L of 2001, heard on 5th December. 2001.

(On appeal from the judgment dated 15‑8‑2001 of the Lahore High Court, Lahore, passed in Writ Petitions Nos. 13199 and 13756 of 2001).

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)‑ ‑

‑‑‑‑S.3(e)‑‑‑Punjab Public Service Commission (Functions) Rules, 1978, R.5‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑‑Constitutional petition‑‑‑Show‑cause notice was issued to petitioners stating that their appointments were made on extraneous considerations‑‑‑Petitioners filed their replies contending that their appointments were duly made under R. 5 of Public Service Commission (Functions) Rules, 1978‑‑‑Petitioners without waiting for decision on their replies by Competent Authority filed Constitutional petitions, which were dismissed by High Court‑‑‑Contention of petitioner was that their removal from service could be made only after holding elaborate enquiry by Enquiry Officer/Committee, whereas show­-cause notice had been issued to them without appointment of Enquiry Officer/Committee‑‑‑Validity‑‑‑Before passing the final order of removal from service, appointment of Enquiry Officer or Enquiry Committee was necessary under the Punjab Removal from Service (Special Powers) Ordinance, 2000‑‑‑Disputed show‑cause notice was still at preliminary stage‑‑‑Competent Authority after considering petitioners' replies, if came to the conclusion that it was a case of taking further proceedings under the Ordinance then it would be required to constitute an Enquiry Committee or appoint an Enquiry Officer‑‑‑Constitutional petition had rightly been held to be premature and dismissed as such‑‑‑Impugned judgment was not suffering from any legal infirmity or illegality warranting interference by Supreme Court‑‑‑Petitions for leave to appeal were dismissed with observations that if any order adverse to petitioners was passed either ‑on merits or against the provisions of the Ordinance, they might file appeals before the Punjab Service Tribunal in accordance with law.

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 5th December, 2001.

2002 S C M R 807

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Syed Deedar Hussain Shah, JJ

SARDAR MUHAMMAD and another‑‑‑‑Appellants

versus

AKRAM and others‑‑‑‑Respondents

Civil Appeal No.712 of 1995, decided on 28th March, 2001.

(On appeal from the judgment dated 2‑11‑1993, in R.S.A. No. 159 of 1980 passed by a Single Judge of Lahore High Court, Multan Bench, Multan).

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

‑‑‑‑S. 10‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan, 1973, Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider, whether respondent/plaintiff could resort to Civil Court without first exhausting his remedies before the Authorities in Revenue/Colony hierarchy; whether vires of order of Collector' could be assailed in civil suit, which was passed in compliance with order of Commissioner and was never challenged; and whether payment of dues of allotment during stay order was of no effect.

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

‑‑‑‑Art.185‑‑‑Appeal to Supreme Court‑‑‑Concurrent findings of fact and law‑‑‑Interference by Supreme Court‑‑‑Scope‑‑‑In absence of any jurisdictional error and/or misreading or non‑reading of evidence on record being discernible to the naked eye, Supreme Court would not consider it appropriate to interfere with concurrent findings of fact and law by all the Courts below.

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

‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Grant of State land‑‑‑Locus standi to challenge‑‑‑Owner of the land in the village has no locus standi to take out proceedings against a grantee of State land under the relevant scheme.

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

‑‑‑‑S.10‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Conversion of State land into Chiragah after its allotment‑‑‑Effect‑‑‑Respondent was allotted State land as an oustee from Islamabad Capital Territory, when there was no prohibition on its allotment and it was not Chiragah‑‑‑Respondent made full payment therefor and obtained sale‑deed‑‑‑Collector subsequently converted said land into Chiragah and cancelled its allotment‑‑‑Respondent challenged vires of order of Collector in civil suit, which was decreed by Civil Court and its decree remained upheld by First and Second Appellate Court‑‑­Validity‑‑‑In absence of any violation of the terms and conditions of the grant by the respondent, neither the administration i.e., District Collector, Commissioner and/or Member Board of Revenue nor the Civil Courts had any ,jurisdiction to undo his grant‑‑‑No ground was made out for interference by Supreme Court with concurrent findings of fact and law by all the Courts below‑‑‑In absence of any jurisdictional error and/or misreading or non­-reading of evidence on record appeal was dismissed in circumstances.

Ch. Noor Elahi, Advocate Supreme Court for Appellants.

Ch. M. Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondent No. 1.

Respondents Nos.2 and 3: Ex parte.

Date of hearing: 21st March, 2001.

2002 S C M R 813

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD RAMZAN and 25 others‑‑‑Appellants

versus

Ch. MUHAMMAD ABDUL LATIF and 13 others‑‑‑Respondents

Civil Appeals Nos. 483 and 484 of 1994, decided on 22nd January, 2002.

(On appeal from the judgment of Lahore High Corm, Multan Bench, dated 13‑2‑1993 passed in Writ Petitions Nos.1031‑R and 1032‑R of 1977).

(a) West Pakistan Rehabilitation and Settlement Scheme, 1956‑‑‑

‑‑‑‑Para. 11, Part II‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Evacuee agriculture land‑‑‑Allotment‑‑‑Contention of allotment of the suit land was to be made in accordance with Rehabilitation Commissioner, which direction had been upheld by Court in Constitutional jurisdiction‑‑‑Order of the High Court was mind by the Rehabilitation Commissioner while direction, thus the order was not sustainable‑‑‑Leave to appeal was granted to examine the contention raised by the petitioners.

(b) West Pakistan Rehabilitation and Settlement Scheme, 1956‑‑‑

‑‑‑‑Para. 11, Part II‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Consent of parties‑‑‑Remand of case to Notified Officer‑‑‑Proceedings beyond direction of High Court given in Constitutional jurisdiction‑‑‑Dispute between the parties was assailed before High Court in exercise of Constitutional jurisdiction and the, same was disposed of by the High Court with concurrence of the parties and they had no objection for the remand of the case to the Notified Officer for disposal of the same in terms of the direction contained therein‑‑‑Keeping in view the nature of dispute between the parties, Supreme Court found that judgment passed by the High Court was neither in conflict with the judgment passed by the High Court in earlier Constitutional petition, nor the Settlement Authority was justified to proceed beyond the directions given in the said judgment which were confined only to the extent of petitioners in the said petition and re‑opening of the whole matter on the basis of order passed by the Rehabilitation Commissioner on 31‑5‑1955 was not justified‑‑‑When lot of changes had .taken place in the intervening period, Supreme Court did not find it proper to allow the parties to enter into fresh litigation once again after passing half a century‑‑‑Supreme Court declined to interfere in the judgment passed by the High Court in exercise of Constitutional jurisdiction.

Ch. M. Abdus Saleem, Advocate Supreme Court with Muhammad Aslam Ch., Advocate‑on‑Record (absent) for Appellants (in both Cases).

Respondents: Ex parte (in C.A. No. 483 of 1994).

Ch. Noor Ellahi, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondent (in C.A. No. 484 of 1994).

Date of hearing: 22nd January, 2002.

2002 S C M R 820

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

SOLAT ALI KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.336 of 2000, decided on 14th September, 2001.

(On appeal from the judgment dated 21‑1‑2000 passed by the High Court of Sindh, Karachi, in ATA Appeal No. 28 of 1999).

Penal Code (XLV of 1560)‑‑‑

‑‑‑‑S. 302/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), $.7‑‑‑Re‑appraisal of evidence‑‑‑Ocular account had been narrated in its material particulars by three prosecution witnesses out of them one was an independent witness, second one was wife of the deceased and third was son of the deceased‑‑‑All the witnesses had described the manner in which three deceased were done to death‑‑‑Witnesses had stated that it was the accused who was seen by them tiring at the deceased‑‑‑Presence of wife and son of deceased being inmates of the house in front of which occurrence had taken place, could not be doubted on any score‑‑‑Said witnesses were subjected to lengthy cross­-examination but their testimony could not be shattered‑‑‑Presence of the witness at spot was natural and had been proved beyond any doubt and

they did not have any malice or ill‑will against accused to falsely implicate him‑‑‑Variation in place of arrest of accused would not have any material effect when arrest of accused got established from the Airport and subsequent to arrest accused on the next day had led to recovery of offensive weapon‑‑‑Incriminating weapons were sent to Examiner of Firearm and according to his report some of crime empties recovered from the spot matched with kalashnikov recovered on pointation of accused‑‑‑Simply because recovery had been proved through testimony of police officials, same could not be discarded‑‑‑Identification parade of accused conducted under supervision of Judicial Magistrate, was proved to have been conducted strictly in accordance with law and rules and eye‑witnesses had correctly pin­pointed the accused‑‑‑Contention that identification parade which was held after more than 530 days of the occurrence and 9 days after arrest of accused would not advance case of the prosecution, was repelled because after occurrence accused had left the country and carne back after about one year and six months and was apprehended at the Airport‑‑‑Accused had made judicial confession before the Magistrate and admitted his involvement in the case apart from mam_ other cases‑‑‑Confession of the accused was voluntary and without any coercion and he had signed each page of his confessional statement‑‑‑Accused had also admitted his association with a political party in his confessional statement as well as before the media‑‑‑Prosecution had successfully brought home guilt against accused through unshakable and confidence‑inspiring ocular account‑‑‑Courts below, in circumstances, had rightly convicted and sentenced the accused.

Aziz Ullah Shaikh, Senior Advocate Supreme Court with Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Appellant.

Raja Qureshi, Advocate‑General, Sindh with Suleman Habibullah, Additional Advocate‑General for the State.

Dates of hearing: 12th to 14th September, 2001.

2002 S C M R 829

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SARWAR and 5 others‑‑‑Appellants

versus

MUHAMMAD ALI and 18 others‑‑‑Respondents

Civil Appeal No. 145 of 1995, decided on 6th February, 2002.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 13‑5‑1993 passed in C.R. No. 74‑D of 1983).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑Ss. 22 & 25‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the order treating the land as agricultural land had attained finality under the Settlement Laws and was not open to challenge in the Civil Courts and whether the High Court was not right in remanding the case to the Appellate Court on the ground that the Appellate Court's judgment and decree were vitiated on account of non‑reading of documentary evidence without indicating as to which particular documentary evidence had not been read.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑

‑‑‑‑S. 2(3)‑‑‑West Pakistan Rehabilitation and Settlement Scheme, 1956‑‑­Land‑‑‑Nature‑‑‑Determination‑‑‑Special Jamabandi‑‑‑Object‑‑‑Use of land actually determines the nature of property‑‑‑Special Jamabandi prepared for the purpose is relevant to determine the character of the land and subsequent entries in the Revenue Record neither help in this regard nor affect the Jurisdiction of Settlement Authorities to deal with the land under Displaced Persons (Land Settlement) Act 1958.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 22 & 25‑‑‑Civil Court‑‑‑Jurisdiction‑‑‑Order passed by Settlement Authorities under the provisions of Displaced Persons (Land Settlement) Act, 1958, attains finality if the same is not challenged in the hierarchy and the Civil Court has no jurisdiction either to determine the character of property under the law or entitlement of a person for allotment on account of the statutory bar‑‑‑Civil Courts are not competent to entertain the suit involving disputes of title relating to the evacuee property.

Abdul Hakim v. Muhammad Azam Khan 1991 SCMR 1976); Faizuddin Ahmad v. Muhammad Yousaf 1988 SCMR 1289; Qamar Zaman v. Ejazi Begum 1997 MLD 2408 and Zafarul Hassan v. Muhammad Kalim 1993 SCMR 2028 ref.

(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 22 & 25‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑‑Allotment of evacuee property‑‑‑Jurisdiction of Civil Court‑‑‑Allotment was trade in favour of respondent before the repeal of the evacuee laws and appeal against that order was finally disposed of by the Notified Officer under the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, as a pending matter‑‑‑Such allotment was assailed in civil suit which was dismissed by the Civil Court for lack of jurisdiction‑‑‑Judgment and decree passed by the Trial Court was maintained by the Appellate Court‑‑‑High Court, in exercise of revisional jurisdiction under S.115, C.P.C. allowed the revision petition and the case was remanded to the Trial Court for decision afresh‑‑‑Validity‑‑‑Without deciding the issue relating to the jurisdiction of the Civil Court to entertain the suit and adjudicate the matter, the decision of civil revision by the High Court on merits was not proper‑‑‑Was essential for the High Court in the present case to first decide the question relating to the bar of jurisdiction of Civil Court under S.22 read with S.25 of Displaced Persons (Land Settlement) Act, 1958‑‑‑High Court had omitted to attend the issue framed in the civil suit relating to the question as to whether protection under S.25 of Displaced Persons (Land Settlement) Act, 1958, provided to the orders passed by the Settlement Authorities was no snore available in the present case, after the repeal of evacuee laws in 1974 and thus had committed a jurisdictional error‑‑‑Supreme Court, set aside the order passed by High Court and sent the case back to the High Court for decision of the revision petition afresh after attending to the pivotal issue relating to the maintainability of civil suit and the jurisdiction of the Civil Court.

M.S. Baqir, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants.

Malik M. Sharif, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 24th January, 2002.

2002 S C M R 836

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

PROVINCE OF THE PUNJAB through Secretary, Irrigation and Power Department, Lahore and another‑‑‑Appellants

versus

PUNJAB LABOUR APPELLATE TRIBUNAL through Chairman and others‑‑‑Respondents

Civil Appeals Nos. 1569 to 1579 of 1999, decided on 25th October; 2001

(On appeal from the judgment dated 13‑4‑1999 passed by Lahore High Court, Lahore in Writ Petitions Nos. 19431, 19422, 19428, 19421, 19423 to 19427, 19429 and 19430 of 1996).

(a) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.2(l)(b)‑‑‑"Civil servant"‑‑‑Definition‑‑‑Work‑charged employees employed by Irrigation Department were not covered by definition of civil servant as given in S.2(1)(b) of Civil Servants Act, 1973.

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑

‑‑‑‑Ss. 1(4)(e), 10 & S.O.1(e)‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑"Work‑charged employee" ‑‑‑Termination of service‑‑­Remedy‑‑‑Work‑charged employees, if having their own statutory rules, cannot invoke the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and S.25‑A of Industrial Relations Ordinance, 1969.

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.1(4)(e), 10 & S.O.(1)(e)‑‑­Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Establishment of Temporary and Work‑charged Regularization Rules of Irrigation Department, Chap.l, 8.1.131‑‑‑Constituition of Pakistan (1973), Art. 185(3)‑‑‑Grievance petition‑‑‑Maintainability‑‑‑Work‑charged employee‑‑‑Employees were working as gardeners, Chowkidars, helpers etc., in Irrigation Department for the last many years, but their services were terminated treating them as work­charged employees‑‑‑Grievance petition tiled by such employees under S.25‑A of Industrial Relations Ordinance, 1969 was dismissed being not maintainable‑‑‑Labour Appellate Tribunal reversed the judgment of Labour Court and directed reinstatement of the employees‑‑‑High Court upheld the judgment of Labour Appellate Tribunal‑‑‑Validity‑‑‑Employees had remained in service for years together‑‑‑Burden of proof was on Department to show that they were purely work‑charged employees‑‑‑Employment of such persons was not against a specific project or sub‑work of a project, thus, R.1.131 of Establishment Temporary and Work‑charged Regularization Rules could not be made applicable to them‑‑‑Tenure of service of employees, nature of job and absence of any specific project would bring them within the ambit of "permanent workers" as mentioned in para.(1)(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Employees neither "civil servants" nor "work‑charged employees", could invoke provisions of S.25‑A of Industrial Relations Ordinance, 1969 for redressal of their grievances being "permanent workers "‑‑‑Employees were neither served with chow‑cause notices or charge‑sheets nor were they made to face any inquiry, but were asked to leave their jobs in a mechanical and tyrannical manner‑‑‑Effect‑‑‑Employers could not be allowed to conduct themselves in a despotic manner by defeating the express provisions of law, especially Labour Laws enacted for benefit of working class protecting them from excesses and punitive attitude of employing establishments including governmental set‑ups‑‑‑Supreme Court dismissed the appeal of Departments while holding the judgments of Labour Appellate Tribunal and High Court as well‑based and unexceptionable not calling for any interference.

Muhammad Yaqoob v. The Punjab Labour Court No. l and 5 others 1990 SCMR 1539; Executive Engineer v. Abdul Aziz 1996 PLC 385 and WAPDA v. Khanimullah 2000 SCMR 879 ref.

Arshad Ali Chaudhry," Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record (absent) for Appellants.

Respondent No. l: Ex parte.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondent No.2

Date of hearing: 9th October, 2001.

2002 S C M R 849

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ, Munir A. Sheikh and Rana Bhagwandas, JJ

MUHAMMAD RIAZ---Appellant

versus

SECRETARY, MINISTRY OF KASHMIR AFFAIRS AND NORTHERN AREAS, GOVERNMENT OF PAKISTAN and others---Respondents

Civil Appeal No. 48 of 2001, decided on 11th October, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 9-12-2000 passed in Appeal No. 770(R) CS/2000).

(a) Civil Servants Act (LXXI of 1973)---

----S. 2(1)(b)---Employees of Northern Areas---Such employees not covered under the definition of "civil servant" as given under S.2(l)(b) of the Civil Servants Act, 1973---Merely because the . residents of Northern Areas according to the judgment passed by Supreme Court in the case of Al-Jehad Trust reported as 1999 SCMR 1379, had been given the rights at par with the citizens of Pakistan to invoke the judicial forums for enforcement of their right, would not by itself constitute employees of the Northern Area as "civil servants" within the meaning of the expression as defined in Civil Servants Act,. 1973.

(b) Civil Servant Act (LXXI of 1973)-----

----S 2(1)(b)--Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212---Employees of Northern Areas---Jurisdiction of Service Tribunal---Scope---Remedy for employees of Northern Areas--­Appellant was employee of Northern Areas and he being dissatisfied with the seniority assailed the order before Service Tribunal---Appeal before Service Tribunal was dismissed on the ground that the appellant was not a "civil servant", therefore, jurisdiction of Service Tribunal could not be invoked--­Validity---Civic rights of citizens in general ordered to be governed by laws and creation of judicial forums for enforcing the ,same was altogether different matter and did not have nexus with the status of any person employed in the service of Northern Areas for the purposes of jurisdiction of Federal ,Service Tribunal---Civil servant as defined in S.2(1)(6), Civil Servants Act, 1973 could invoke jurisdiction of Service Tribunal under the provisions of S.4 of the Service Tribunals Act, 1973 in respect of terms and conditions of his service against the original or appellate order of the Departmental Authority---Departmental Authority of the appellant as employee of the Northern Areas Administration was not the "Federal Government" as he was not employed by it (Federal Government), as such--­Employee of Administration of Northern Areas was not a "civil servant" of the Federal Government, his terms and conditions were governed by the rules and regulations of the Northern Areas ---Supreme Court recommended chat till such tune any such forum was created like the Service Tribunal, the servant of Northern Areas as the appellant was, might invoke jurisdiction of the Courts of the general jurisdiction established for deciding civil disputes.

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.

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

----S.3(2)---Constitution of Pakistan (1973), Art.212---Civil Procedure Code (V of 1908); S.9---Service Tribunal---Jurisdiction---Area where no Service Tribunal was created, jurisdiction of the Civil Courts was not barred under Art.212 of the Constitution.

Sh. Riazul Haque, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Yawar Ali Khan, Deputy Attorney-General for Ijaz M. Khan, Advocate-on-Record for Respondents.

Respondents Nos.2 and 4 to 16: Ex parte.

Date of hearing: 11th October, 2001.

2002 S C M R 853

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and

Hamid Ali Mirza, JJ

GHULAM ABBAS and 11 others‑‑‑Appellants

Versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others‑‑‑Respondents

Civil Appeals Nos. 127‑K to 138‑K of 1999, decided on 31st July, 2000.

(On appeal from the judgment dated 27‑4‑1998 of the Federal Service Tribunal, passed in Appeals Nos.2661 to 2672(K) of 1997).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑­Permanent workman‑‑‑Status‑‑‑Failure to treat workers as permanent employees‑‑‑Employees of Pakistan Railways, were terminated orally on the ground that they were not workers/workmen‑‑‑Contention of the employees was that they had worked for Pakistan Railways for various periods ranging up to ten years or more on record but they were treated as temporary workers and to avoid the employees acquiring status of permanent workman, break was created in their employment‑‑‑Documents relied upon by the employees were denied by the Authorities and alleged the same as unauthentic and forged‑‑‑Validity‑‑‑To resolve the factual controversy, judgment passed by Service Tribunal was set aside and the matter was remanded for fresh decision on merits after taking into consideration relevant evidence adduced by parties‑‑‑Appeal was allowed.

Miss Wajahat Niaz, Advocate‑on‑Record for Appellants.

Shaikh Anwar‑ul‑Haq, Advocate Supreme Court and A.A. Siddiqui. Advocate‑on‑Record for Respondents.

Respondents Nos. 1 and 3 to 6: Ex parte.

Date of hearing: 31st July, 2000.

2002 SCMR 855

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

GOVERNMENT OF SINDH and 2 others‑‑‑Petitioners

Versus

LIAQAT ALI and another‑‑‑Respondents

Civil Petitions Nos.531‑K and 532‑K of 2000, decided on 19th December 2000.

(On appeal from the judgment dated 27‑6‑2000 passed by Sindh Service Tribunal, Karachi in Appeals Nos. 102 and 103/99), Sindh Civil Service Tribunals (Procedure) Rules, 1971‑‑‑--

-----R. 23(c)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑‑Dismissal from service‑‑‑Civil servants contended that according to R. 23 of Sindh Service Tribunals (Procedure) Rules, 1974, their appeals had to be heard by Full Bench of the Service Tribunal consisting of three Members, whereas their appeals were heard and decided by a Single Member without any general or special order of the Chairman to that effect‑‑‑Supreme Court converted the petitions into appeals and accepted the same, and remanded the matters to Service Tribunal for deciding appeals afresh according to law.

Suleman Habibullah, Assistant Advocate‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 12th December, 2000.

2002 S C M R 857

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Javed Iqbal and Muhammad Nawaz Abbasi, JJ

GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN through

Secretary, Finance Division, Islamabad and 2 others‑‑‑Appellants

Versus

MUHAMMAD YASEEN‑‑‑Respondent

Civil appeal No.585 of 1998, decided on 1st February, 2002.

(On appeal from the judgment of Federal Service Tribunal Lahore, dated 24‑7‑1996 assed in Appeal No.47(L)/96).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Negligence in discharge of duty Punishment of reversion in rank awarded to the civil servant by the Competent Authority was converted into stoppage of two increments for three years by Service Tribunal‑‑‑Contention of the Authorities was that there was no discrimination nor any malice involved as ail the civil servants were proceeded against and punished and as such reduction in the penalty was based on non‑existing ground‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the Authorities.

Pakistan Railways through General Manager v. Ghulam Rasul 1997 SCMR 1581 ref.

(b) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 4 & 5‑‑‑Negligence and carelessness‑‑‑Loss to Government property‑‑‑Civil servant did not comply with the instructions regarding transportation of cash and instead of using vehicle and armed escort had sent cash amount of Rs.503,500 on foot, to be deposited in Bank‑‑‑On the way to Bank the subordinate of the civil servant was intercepted by unknown culprits who snatched the cash on gun‑point‑‑‑Cash was required to be carried in official vehicle and in case of non‑availability of official vehicle, the alternate arrangement was to be made to the satisfaction of the Regional Director/Officer Incharge‑‑‑Authorities failed to show that despite availability of armed escort and official vehicle, the civil servant allowed his subordinates to take the cash to Bank on foot in violation of Government instructions‑‑‑Reason of non‑observance of the instructions by the civil servant as incharge of a Savings Centre was due to the non‑provision of adequate security arrangements by the Department for movement of cash from one place to another place under the instructions‑‑‑Authorities imposed punishment of reversion in rank to the civil servant whereas, the Service Tribunal allowed the appeal and converted the punishment into stoppage of two increments‑‑‑Validity‑‑‑Department was also at fault in sharing the negligence of the civil servant which caused loss to the Government‑‑­Discrtion exercised by the Service Tribunal was not questionable and the punishment awarded to the civil servant by the Tribunal was adequate to meet the ends of justice‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal.

Sultan Mansoor, Deputy Attorney‑General Pakistan and Rao M. Yousaf Khan, Advocate‑on‑Record (absent) for Appellants.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Advocate‑General, Punjab.

Sh. Masood Akhtar, Advocate‑on‑Record for Respondent.

Date of hearing: 1st February, 2002.

2002 SCMR 862

[Supreme Court of Pakistan]

Present: Rana Bhagwandas; Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PROVINCE OF SINDH through A.‑G., Sindh, Karachi‑‑‑Petitioner

Versus

Kazi SIRAJ AHMAD‑‑‑Respondent

Civil Petition for Leave to Appeal No. 171‑K of 2001, decided on 6th April, 2001.

(On appeal from the judgment, dated 6‑2‑2001, passed by the Sindh Service Tribunal, Karachi, in Appeal No.94 of 1998).

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

‑‑‑‑S.4‑‑‑West Pakistan Inspector of Revenue and City and Revenue Surveyors (Southern Zone) Service Rules, 1963‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Promotion‑‑‑Civil servant was appointed as City Surveyor (BS‑7) and after having worked as such for thirty years, he was allowed move‑over from BS‑7 to BS‑13‑‑‑Competent Authority promoted the civil servant as Assistant City Survey Officer (BS‑16), but later on, cancelled his promotion without affording him any opportunity of hearing and issuing show‑cause notice on the ground that he could not be promoted from BS‑9 to BS‑16 i.e. nine steps, up‑‑‑Service Tribunal accepted the appeal filed by civil servant‑‑‑Validity‑‑‑Civil servant on account of length of service and unblemished record had been promoted on the recommendations of Departmental Promotion Committee and Competent Authority had issued the notification, which was not in violation of any rules‑‑‑Authority in its written statement had admitted the case of civil servant‑‑‑Tribunal had rightly considered the case of civil servant while allowing his appeal and its judgment was in consonance with law and Rules‑‑‑No misreading or non­ reading of evidence or misconstruction of law was found‑‑‑Supreme Court declined leave to appeal and dismissed the petition in circumstances.

M. Sarwar Khan, Additional A.‑G., Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 6th April; 2001.

2002 S C M R 865

[Supreme Court of Pakistan]

Before Munir A. Sheikh, Qazi Muhammad Farooq and Rana Bhagwandas, JJ

KHALID MEHMOOD and others‑‑‑Appellants

Versus

COMMISSIONER, SARGODHA and others‑‑‑Respondents

Civil Appeals Nos. 1370 and 1416 of 200t, decided on 23rd January, 2002.

(On appeal from the judgment, dated 18‑5‑2001 of the Punjab Service Tribunal passed in Appeal No.2984 of 1999).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Appointment through promotion‑‑‑Interference by Service Tribunal in exercise of jurisdiction under S.4 of the Service Tribunals Act, 1973‑ ‑Validity‑‑‑Where the civil servant was at Serial No.4 in the merit list the Service Tribunal was not justified in law to interfere with in his appointment through promotion‑‑­Judgment passed by the Service Tribunal was set aside.

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Appointment through promotion‑‑‑Objection to merit list‑‑‑Appellant did not come on the merit therefore, he was not appointed for post‑‑‑Merit list was objected to by the appellant and plea raised was that as the list was prepared by a particular office and some on the appointees belonged to the same office, therefore, element of pick and choose was reflected in the list and the same was based upon mal;, tides‑‑‑Validity‑‑‑Merit position had been transparently determined on the basis of criteria according to which marks were allocated to the candidates qua their Annual Confidential Reports, written test and on merit, the office belonging to a particular office obtained more marks would not by itself be sufficient to hold that the selection was either mala fide‑or element of pick and choose was involved‑‑­Even if the marks of the appellant given in written test and interview were brought at par with the selected candidate the appellant would still not improve his qualification qua selected candidates‑‑‑Supreme Court declined to interfere with the appointment made by the Authorities‑‑‑Appeal was dismissed.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185 & 212‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Amendment of rules‑‑‑Scope‑‑‑Not the function of Supreme Court to make amendment in rules.

Hafiz Tariq Nasim; Advocate Supreme Court for Appellant (in C.A. No. 1370 of 2001).

Dr.Mohy-ud-din Qazi, Advocate Supreme Court for Respondent (in C.A. No. 1370 of 2001 I

Ihsanul Haq Ch. Advocate Supreme Court for Respondents Nos.2, 4 and 6 (in C.A. No. 1370 of 2001).

Syed Alamdar Hussain Shah with record for D.C.O. on Notice.

Dr. Mohy‑ud‑Din Qazi, Advocate Supreme Court for Appellant (in No. 1416 of 2001).

Hafiz Tariq Nasim, Advocate Supreme' Court for Respondent No.2 (in C. A. No. 1416 of 2001).

Ihsanul Haq Ch., Advocate Supreme Court for Respondents Nos.3 to 6. Syed Alamdar Hussain Shah with record for D.C.O. on notice.

Date of hearing: 23rd January, 2002.

2002 SCMR 870

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

Dr. SHAHID AMIN HYDER‑‑‑Petitioner

Versus

SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN and another‑‑‑Respondents

Civil Petition No.563 of 2001, decided on 8th January, 2002.

(On appeal from the judgment/order, dated 11‑1‑2001 passed by Federal Service Tribunal, Islamabad in Appeal No.362(R) CS of 2000)

Service Tribunal Act (LXX of 1973)‑‑‑

‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Adverse remarks to Annual Confidential Report ‑‑‑Expunction‑‑‑Matter related to terms and conditions of service ‑‑‑Jurisdiction of Service Tribunal‑‑‑Departmental appeal was dismissed against the adverse remarks entered in Annual Confidential Report of civil servant and Service Tribunal declined to exercise jurisdiction vested in it on the ground that the matter was not related to terms and conditions of service‑‑‑Validity‑‑‑Approach of the Service Tribunal was not correct because recording of adverse remarks in ACR of an employee was one of the term and condition of his service and if adverse remarks had been recorded the civil servant enjoyed a right to initially challenge the same before the next higher authority of the Department on the grounds available to him including the one that the adverse remarks had been recorded on subjective reasons and if his grievance was not redressed, then the civil servant could approach the Tribunal for redressal of his grievance‑‑‑Service Tribunal was empowered to examine the remarks on the basis of available material and if the Tribunal came to the conclusion that Annual Confidential Report had not been recorded property or it was based on extraneous consideration or the allegation was not supported by the material, then the Tribunal was competent to accept the appeal.

Inspector‑General of Police, Punjab, Lahore and another v. Masood Ahmed Khan 1981 SCMR 840 ref.

Petitioner in person.

Nemo for Respondent.

Date of hearing : 8th January,2002.

2002 SCMR 872

[Supreme Court of Pakistan]

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

UNITED BANK LIMITED‑‑‑Petitioner

Versus

RASHEED AHMED MEMON‑‑‑Respondent

Civil Petition for Leave to Appeal No.678‑K of 2001, decided on 14th December, 2001.

(On appeal from the judgment of the Federal Service Tribunal Islamabad, dated 14‑7‑2001, passed in Appeal No. 435(K) of 1997)

Service Tribunal Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A & 6‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Reinstatement in service‑‑‑Two departmental inquiries conducted by same Inquiry Officer‑‑‑Person was a Bank employee and was charged for availing house building loan in unauthoried manner in excess of his entitlement‑‑­Authorities having been dissatisfied with the first inquiry ordered for fresh inquiry into the matter‑‑‑Same officer was appointed to hold the second inquiry against the employee‑‑‑Employee, on the report of the Inquiry Officer was dismissed from service‑‑‑Service Tribunal allowed the appeal and reinstated the employee in service and directed the Authorities to conduct fresh inquiry against him‑-‑Validity‑‑‑Where the Authorities had turned down the findings and report of the first inquiry for the reason that it was held in ex parte manner, the Bank Authorities did not act in proper and legal manner while getting the second inquiry conducted by the same Inquiry Officer‑‑‑Judgment passed by the Tribunal was based on the principles laid down by Supreme Court ‑and there was no illegality, or irregularity, or misconstruction of law‑‑‑Leave 'to appeal was refused.

Nafees Ahmed Siddiqui, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner.

M.L. Shahani, Advocate Supreme Court and N.C. Motiani, Advocate‑on‑Record for Respondent.

Date of hearing: 14th December 2001.

2002 S C M R 875

[Supreme Court of Pakistan]

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

ABDUL FATEH BHUTTO ‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH through Chief

Secretary and others ‑‑‑Respondents

Civil Petition No.491‑K of 2001, decided on 26th November, 2001.

(On appeal from the judgment dated 22‑5‑2001 passed by Sindh Services Tribunal, Karachi in Appeal No.141/98).

Sindh Civil Servants Act (XIV of 1973)‑‑‑

‑‑‑‑‑Ss. 8 & 24‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Civil servant was working in executive cadre of Police Department‑‑‑After his change in cadre to Anti‑Corruption Department, civil servant was placed at the bottom of seniority list of Inspectors on the date of joining it‑‑Civil servant's case was decided by Authority according to policy and rules, and was not considered to be a case of hardship‑‑‑No case for discrimination was made out‑‑‑Civil servant was placed at the bottom of seniority list of Inspectors on his joining in 1996, but he agitated his grievance in 1999 by filing appeal, which was time‑barred‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

Akhlaq Ahmed Siddiqui, Advocate Supreme Court for Petitioner. Nemo for Respondent.

Date of hearing: 26th November, 2001.

2002 S C M R 876

[Supreme Court of, Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

S.A.M. WAHIDI ‑‑‑ Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Finance Division, Islamabad and others‑‑‑Respondents

Civil Petition No.6 of 2001, decided on 10th January, 2002.

(On appeal form the judgment of Federal Service Tribunal dated 30‑10‑2000 passed in Appeal No. 2093(R)/99).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Government of Pakistan Finance Division Memorandum O.M. No.F.4(1)R. 6/99, dated 23‑7‑1999, Para. 7‑‑‑Re‑employment‑‑­Pension benefits‑‑‑Increase in pension benefits were claimed by the person who was re‑employed after his retirement from Government service‑‑‑Claim as rejected by Service Tribunal‑‑‑Contention of the employee was that he was wrongly deprived of the benefit in question‑‑‑Employee after retirement from Government service, was employed by the Capital Development Authority, an autonomous body, on the terms and conditions contained in his appointment letter and, therefore, he would not be entitled to the benefits made available to Government servants under Finance Division Memorandum O.M. No.F.4(1)R. 6/99, dated 23‑7‑1999‑‑‑Where there was no substance in the petition for leave to appeal and even no question of law of public importance was involved in the matter, Supreme Court declined to interfere with the judgment passed b the Service Tribunal ‑‑‑ to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 10th January, 2002.

2002 S C M R 878

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, CJ., Ch. Muhammad Arif and

Qazi Muhammad Farooq, JJ

GOVERNMENT OF PUNJAB and others‑‑‑Appellants

Versus

PUNJAB APPELLATE TRIBUNAL, LAHORE and others‑‑‑Respondents

Civil Appeals Nos. 1412 to 1414 of 1999, heard on 1st October, 2001.

(On appeal from judgment dated 15‑6‑1998 passed by Lahore High Court, Lahore in W.Ps. Nos. 11061 to 11063/1998).

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑---

‑‑‑‑S.Os.1(b) & 12‑‑‑Permanent workman‑‑‑Status‑‑‑Determination of‑‑­Labour Court as well as Labour Appellate Tribunal of exclusive jurisdiction had recorded concurrent finding of fact that employees who continued in service for more than ninety days in posts of permanent nature, after expiry of said ninety days, had assumed the status of permanent workmen, not liable to be terminated without conforming with provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that 70 permanent posts were still lying vacant in the Department‑‑‑Such concurrent findings of fact were upheld by High Court‑‑‑Fact that the salaries of the employees were not deducted for Fridays and other holidays showed uninterrupted continuity of their services making them distinguishable from the "work‑charged employees" ‑‑‑Employees, in circumstances, could not be said to be ad hoc or temporary‑‑‑In absence of any misreading or non‑reading of evidence on record, judgment of High Court not suffering from any legal infirmity could not be interfered with by Supreme Court in appeal.

Ch. Arshad Ali, Advocate Supreme Court with Maroof Ahmed, Assistant Executive Engineer and Rao Muhammad Yousaf Khan, Advocate ­on‑Record for Appellants.

Farooq Zaman Qureshi, Advocate Supreme Court for Respondents

Date of hearing: 1st October, 2001.

2002 SCMR 881

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MAHMOOD AKHTAR‑‑‑Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN ESTABLISHMENT DIVISION and 2 others‑‑‑Responder

Civil Petition No. 529‑K of 2000, decided on 20th December 2000.

(On appeal from the judgment dated 25‑9‑2000 passed by‑ Federal Service Tribunal in Appeal No.775‑K of 1998).

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

‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal from service‑‑‑Civil servant being employee of Pakistan Rangers, was involved in an act of motorcycle snatching‑‑‑Departmental inquiry was conducted, charge was framed and the civil servant was convicted and was also dismissed from service‑‑‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Contention of the civil servant was that opportunity of fair trial was not given to him‑‑‑Validity‑‑‑Civil servant was caught red‑handed by police alongwith robbed motorcycle ‑‑‑Co‑accused in the case had absconded and was still at large‑‑‑Where finding of the Service Tribunal was in consonance with the facts available on record, Supreme Court declined to interfere‑‑‑Leave to appeal was refused.

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

Nemo for Respondent.

Date of hearing: 20th December, 2000.

2002 SCMRS 883

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SARDAR KHAN‑‑‑Petitioner

Versus

MANAGING DIRECTOR (POWER), WAPDA and another‑‑‑Respondents

Civil Petition No.2208 of 2001, decided on 14th January, 2001.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 19‑5‑2001 passed in Appeal No.22(Q)/CS/2000).

Constitution of Pakistan (1973)‑‑-

‑‑‑‑Art. 212(3)‑‑Dismissal from service‑‑‑Findings of fact by Service Tribunal‑‑‑Interference by Supreme Court‑‑‑Scope‑‑‑Civil servant was found guilty of fraud and was dismissed from service as a result of departmental inquiry‑‑‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Plea raised by the civil servant was that since the co‑accused had been reinstated in service, therefore, he was also entitled to be reinstated‑‑­Validity‑‑‑Reinstatement by the Service Tribunal of co‑accused who were proceeded against by the Department for the same charge, would not provide a valid ground to the civil servant to be treated in the same manner and further the Inquiry Officer had found civil servant involved in the fraud and held him guilty and the Service Tribunal without taking any exception rightly dismissed his appeal‑‑‑Neither the finding of facts recorded by the Service Tribunal could be assailed before Supreme Court through appraisal of evidence nor any question of law of public importance was involved in the petition to call for interference by the Supreme Court‑‑‑Leave to appeal was refused.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Petitioner;

M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 14th January, 2001.

2002 SCMR 886

[Supreme Court of Pakistan]

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

GHULAM MUSTAFA‑‑‑Petitioner

Versus

GENERAL MANAGER, WESTERN TELECOMMUNICATION REGION, TELEPHONE HOUSE, QUETTA and others‑‑‑Respondents

Civil Petition for leave to Appeal No.473‑K of 2001, decided on 12th December, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, Session at Quetta dated 21‑4‑2001, passed in Appeal No.90(Q)(CS) of 2000).

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art.212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Dismissal from service‑‑‑Malpractice and illegal activities‑‑‑Responsibility of a supervisor‑‑­Civil servant‑was dismissed from service on the charge of tampering with telephone cable and providing illegal connections to many persons‑‑‑Civil servant had tried to shift his liability to sonic other staff members during departmental proceedings‑‑‑Department having found the civil servant involved in the activities, dismissed him from service‑‑‑Service Tribunal also dismissed the appeal for the reason that the shifting of the burden to other staff members would not lessen the responsibility of the civil servant who was very much part of the entire illegal and unauthorized activity in his capacity as supervisor‑‑‑Validity‑‑‑No illegality or irregularity was found in the judgment passed by the Service Tribunal and the same was based on the proper appreciation of material available with the Tribunal‑‑‑Where the civil servant failed to, raise any question of public importance, Supreme Court declined to interfere with the judgment passed by the' Service Tribunal‑‑­Petition was dismissed.

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

M. Muneer Qureshi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record for Respondents.

Date of hearing: 12th December, 2001.

2002 SCMR 889

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

WAZIR KHAN‑‑‑Appellant

Versus

GOVERNMENT OF N.‑W.F.P. through Secretary Irrigation, Peshawar and 4 others‑‑‑Respondents

Civil Appeal No. 648 of 2000, decided on 16th January, 2002.

(On appeal from the judgment of N.‑W.F.P. Service Tribunal. Peshawar, dated 13‑11‑1999 passed in Appeal No. 2704/97).

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

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to examine, whether the petitioner who was appointed earlier than the contesting respondents and was placed senior to them in seniority list dated 13‑5‑1979, could vide latter seniority list dated 24‑3‑1997 be placed junior to the, contesting respondents.

(b) Civil Servants Act (LXXI of 1973)‑‑---

‑‑‑‑S. 8‑‑‑Seniority‑‑‑Fixation‑‑‑Appointees of same batch‑‑‑Appointments made as a result of selection in one combined competitive examination would be deemed to be belonging to the same batch and notwithstanding recommendation made by the Public Service Commission in parts, the seniority inter se. the appointees, of the same batch, would be determined in the light of merit assigned to them by the Public Service Commission.

(c) North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑--

‑‑‑‑S. 8‑‑‑Seniority‑‑‑Fixation‑‑‑Past and closed transaction, principle of‑‑‑Applicability‑‑‑ e‑agitating seniority list after 15 years‑‑‑Civil servants party to the appeal were appointees of the same batch‑‑‑Appellant was placed senior to the respondents in the list prepared in the year 1979, while in the subsequent list prepared in the year 1981, the appellant was placed junior‑‑­Appellant did not object the seniority list issued periodically‑‑‑Appellant; after lapse of 15 years, re‑agitated the matter‑‑‑Contention of the appellant was that incorrect publication of seniority lists periodically would be the continuous wrong and the same every time would give rise to fresh cause of action, hence the appeal was wrongly dismissed by the Service Tribunal as time‑barred‑‑‑Validity‑‑‑Where the appellant did not raise any objection to the seniority list issued periodically in the intervening period, it would be deemed that the appellant had accepted the seniority assigned to him in the revised seniority list published in the year 1981‑‑‑Matter relating to the seniority of the parties having attained finality would be deemed as past and closed transaction and the same could not be reagitated after lapse of a period of about 15 years through a fresh representation‑‑‑Seniority, in the present case, was neither determined in departure to the principle embodied in S.8 of the North‑West Frontier Province Civil Servants Act, 1973, nor the same was in violation of any rule framed thereunder‑‑‑Mere fact that the appellant was placed senior to the respondents in the seniority list published in the year 1979 would not be a valid ground to declare him senior to the respondents by undoing the merits assigned to the parties by the Public Service Commission‑‑‑Initial placement of the appellant senior to the respondents in the list published in the year 1979, being not in accordance with the order of merits assigned to them by the Commission, would not create any right in favour of the appellant to claim seniority over the .respondents‑‑‑Supreme Court repelled the contention of the appellant that incorrect publication of, seniority lists periodically would be the continuous wrong and every time the same would give rise to fresh cause of action to challenge the seniority list‑‑­Appellant having accepted the junior position assigned to him in the revised seniority list published in the year 1981, would be estopped to re‑open the same and agitate it at the belated stage in the year 1997‑‑‑Appeal before the Service Tribunal was rightly dismissed as barred by time.

Musa Wazir v. N.‑W.F.P. Service Commission 1993 PLC (C.S.) 1188; Muhammad Jafar Hussain v. Chairman, C.B.R. 1993 PLC (C.S.) 52; Tahir Rasheed v. Secretary, Establishment Division 1993 PLC (C.S.) 116; Ziaul Haq v. Ministry of Education 1991 SCMR 1632 and Sabir Zameer Siddiqui v. Abdul Malik 1991 SCMR 1130 ref.

Atiqur Rehman Qazi, Advocate Supreme Court and Zahoor Qureshi Azad, Advocate‑on‑Record (absent) for Appellant.

Hamid Farooq Durrani, Additional Advocate‑General for Respondent No. 1.

Abdul Aziz Kundi, Advocate Supreme Court and M.S. Khattak. Advocate‑on‑Record for Respondents Nos.2 to 5.

Date of hearing: 16th January, 2002.

2002 S C M R 899

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

Haji KHAN LASHARI and others‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Civil Petitions Nos. 575 to 685 and 697 to 701‑K of 200(1, decide) on 26th December, 2000.

Constitution of Pakistan (1973)‑‑--

‑‑‑‑Art. 212(3)‑‑‑Ad hoc., salaries, payment of‑‑‑Civil servants were terminated from service‑‑‑Review Committee constituted by the Authorities gave interim relief to the terminated civil servants and allowed ad hoc salaries up to May; 2000‑‑‑Service Tribunal admitted appeals filed by the civil servants but declined interim relief‑‑‑One of the civil servants was extended such relief by consent order passed by Supreme Court‑ Authorities. in the present case were not willing to extend such concession to the civil servants‑‑‑Contention of the civil servants was that similar relief be allowed to them as was given to the other civil servant‑.‑‑Validity Order passed by the Supreme Court in the case of the civil servant was a consent order and since the Authorities were not willing to consent in the present petitions the relief given to the other civil servant could not be given to the present civil servants‑‑‑Petition was disposed of accordingly.

Petitioners in person.

A.A. Siddiqui, Advocate‑on‑Record for Respondents.

Date of hearing: 26th December, 2000.

2002 S C M R 900

[Supreme Court of Pakistan]

Before Sh. Riaz Ahmad, Javed Iqbal and

Muhammad Nawaz Abbasi, JJ

MUHAMMAD SALEEM‑‑‑Appellant

Versus

DEPUTY COLLECTOR (CUSTOMS), CHAIRMAN ROAD, QUETTA and 2 others‑‑‑Respondents

Civil Appeal No.952 of 1998, decided on 30th January, 2002.

(On appeal from the judgment dated 8‑12‑1997 of the Federal Service Tribunal, Islamabad, passed in Appeal No.25(Q) of 1997).

(a) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R.4(b)(iv)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal from service‑‑‑Leave to appeal was granted by Supreme Court to consider; whether in the circumstances of the case, shorter procedure could be resorted to for awarding major penalty and whether the circumstances of the case justified awarding of major penalty.

(b) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R.4‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Dismissal from service‑‑‑Civil servant was working in Customs Department and was found guilty of misappropriation of Government property‑‑‑Show‑cause notice was issued to the‑ civil servant and after departmental inquiry, the Authorities dismissed the civil servant from service‑‑‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑No illegality or irregularity had been committed by the Tribunal while disposing of the appeal‑--‑No question of public importance was involved in the case justifying grant of leave‑‑‑Justification of the penalty of dismissal was for the Service Tribunal to determine considering circumstances of case and necessity of meeting the ends of justice which had been overlooked by the Tribunal‑‑­Supreme Court observed that the penalty of dismissal from service appeared to be somewhat harsh and accordingly the same was modified to that of removal from service‑‑‑Appeal was dismissed accordingly.

The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riazul Haq 1997 PLC (C.S.) 873 and Ali Muhammad v, Commissioner Afghan Refugees, N.‑W.F.P., and another 1995 S C M R 1675 ref

Sh. Riaz‑ul‑Haq, Advocate Supreme Court for Appellant. Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 30th January, 2002.

2002 S C M R 904

[Supreme Court of Pakistan]

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

Syed ABDUL QADIR SHAH‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Communication

and Works Department, Government of Sindh, Karachi and others‑‑‑Respondents

Civil Petition for Leave to Appeals Nos. 868‑K and 870‑K of 2001, decided on 13th December, 2001.

(On appeal from the judgment of the Sindh Service Tribunal at Karachi, dated 7‑9‑2001, passed in Appeal No.71 of 1998).

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art. 212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Judgment passed by Service Tribunal‑‑‑Question of public importance, failure to raise‑‑‑Service Tribunal reinstated the civil servant in service with back benefits but refused to reinstate the civil servant on the post where he was working at the time of termination for the reason that the said post had been upgraded‑‑‑Validity‑‑‑Judgment passed by the Service Tribunal was based on law laid down by Supreme Court as well as equity, fair play and justice and the same did not call for interference by Supreme Court‑‑‑No illegality, irregularity or misconstruction of law was found in the judgment passed by the Service Tribunal while the civil servant failed to raise any question of public importance‑‑‑Petition was dismissed.

Shabbir Ahmed Awan, Advocate Supreme Court and Izhar Alam Farooqui, Advocate‑on‑Record for Petitioner (in C.P, No. 868‑K of 2001).

Manzoor Ahmed Khan, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent No.5.

Suleman Habibullah, A.A.‑G. and Akhlaq A. Siddiqui, Advocate-on‑Record for Petitioners (in C.P. No. 870‑K of 2001).

Shabbir Ahmed Awan, Advocate Supreme Court and Izhar Alam Farooqui, Advocate‑on‑Record for Respondent No. 1.

Manzoor Ahmad Khan, Advocate Supreme Court and Faizanul Haq. Advocate‑on‑Record for Respondent No.5.

Date of hearing: 13th December, 2001.

2002 S C M R 908

[Supreme Court of Pakistan]

Present: Munir A. Sheikh

and Rana Bhagwan Das, JJ

Mst. RAHEELA NASREEN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Civil Petition No. 1552 of 1999, decided on 4th March, 2002.

(On appeal from the judgment dated 26‑8‑1999 of the Lahore High Court, Rawalpindi Bench passed in W.P. No. 1557 of 1.999).

Anti‑Terrorism Act (XXVIII of 1997)----

­

‑‑‑‑S. 6(b)‑‑‑Penal Code (XLV of 1860), Ss. 302/201 /34‑‑‑Constitution of Pakistan (1973), Arts. 199 & 185(3)‑‑‑Constitutional petition before High Court‑‑‑Petitioner was charged for murder of her husband (a serving Army Officer) with connivance of his Batman ‑‑‑Challan was submitted before Additional Sessions Judge, from where the same was transferred to Anti­-Terrorism Court for trial‑‑‑High Court dismissed Constitutional petition filed by petitioner against transfer order on the ground that if a Batman being a trusted person employed by an Army Officer murders his master in connivance with master's wife, the incident was likely to strike "terror" leading to feeling of "insecurity" amongst Army Officers within the meaning of S. 6(b) of Anti‑Terrorism Act, 1997‑‑‑Contention of petitioner was that none of the members of Armed Forces made any statement that alleged act had created either feeling of insecurity or was likely to strike terror‑‑­Validity‑‑‑Such contention was wholly fallacious‑‑‑For determination of question, whether a particular act fell within the ambit of any of the provisions of Anti‑Terrorism Act, 1997, it was not necessary to record evidence of witnesses to establish that said act had, in fact, created terror or feeling of insecurity‑‑‑Question of applicability of the provisions of the Act had to be decided by applying mind to the facts alleged in F.I.R. and other attending circumstances‑‑‑According to S.6(b) of the Act, it was not necessary that alleged offence had in fact caused terror, rather its requirement would be adequately satisfied, if the same was likely to strike terror or sense of fear and insecurity in the people ‑‑‑Reasonings of High Court were based on relevant consideration having logical nexus with the relevant law and did not suffer from any legal infirmity‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Mehram Ali and others v. Federation of Pakistan and others P L D 1998 SC 1445 ref.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate Supreme Court for Petitioner.

M. Zaman Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 4th March, 2002.

JUDGMENT

2002 SCMR 911

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and

Mian Muhammad Ajmal, JJ

PROVINCE OF SINDH‑‑‑Petitioner

Versus

Malik GHULAM HUSSAIN ‑‑‑Respondent

Civil Petition No.445‑K of 2001, decided on 8th August, 2001.

(On appeal from the judgment dated 25‑4‑2001 of Sindh Service Tribunal at Karachi passed in Appeal No.387 of 2000).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Retirement from service on the basis of wrong entry of date of birth‑‑‑Date of birth of civil servant as recorded in his service book was 1‑3‑1941, and on its basis date of superannuation was 28‑2‑2001‑‑‑Departmental record showed his date of birth as 1‑3‑1939, thus, he was retired from service on 28‑2‑1999‑‑‑Civil servant challenged notification of his retirement and claimed consequential benefits of promotion and revised pay/pension etc., by way of filing departmental appeal, but the same was dismissed‑‑‑Service Tribunal accepted the appeal of civil servant, when Assistant Advocate‑General conceded that civil servant had been wrongly retired due to bona fide mistake and not due to any mala fide intention‑‑‑Contention of Department was that after retirement from Government service, civil servant was not entitled to any relief, and that dues of such a civil servant could ‑not be settled by Service Tribunal‑‑‑Validity‑‑‑Civil servant had been deprived of his legal dues/benefits due to mistake committed by Department, which could not be allowed now to take advantage of its own unjustified„act of omission and commission‑‑‑Order passed by Service Tribunal wag just and proper, which did not warrant any interference‑‑­Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Suleman Habibullah, Additional Advocate‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Imran Ahmed, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent.

Date of hearing: 8th August, 2001.

2002 SCMR 914

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and

Hamid Ali Mirza, JJ

STATE through Advocate‑General, Sindh, Karachi‑‑‑Petitioner

Versus

Mst. TAJI BIBI ‑‑‑ Respondent

Civil Petition for Leave to Appeal No. 353‑K of 2001, decided on 19th June, 2001.

(On appeal from the judgment/order, dated 16‑5‑2001, of the High Court, of Sindh, Karachi, passed in C.P. No. 1096/2000).

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑-

‑‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Arts.10, 199 & 185(3)‑‑­Constitutional petition before High Court‑‑‑Preventive detention‑‑‑High Court vide order dated 8‑8‑2000 found the detention of detenue as without lawful authority and in flagrant violation of mandatory requirements of S.3 of Maintenance of Public Order Ordinance, 1960 and Art.10 of the Constitution, and allowed the detenue compensation a Rs.5,000 per day for a period of 32 days‑‑‑Petition for leave to appeal filed before Supreme Court against order dated 8‑8‑2000 was withdrawn by the State‑‑‑Advocate‑General made a request to High Court to defer further proceedings in the case till expiry of period of limitation as the Government had decided to file petition before Supreme Court against order dated 2‑4‑2001 (another interim order of High Court)‑‑‑High Court rejected the request and directed Home Secretary to appear in Court on next date for explain the position and show as to why further action should not be taken‑‑‑Validity‑‑‑High Court after going through record had rightly found that detenue had been arrested without lawful authority, thus, had directed the concerned officer to pay compensation‑‑‑Same matter agitated earlier before Supreme Court had been disposed of as not pressed by Law Officer‑‑‑High Court had rightly rejected the signed statement of Advocate‑General‑‑‑Impugned order was based on sound and cogent reasons within the principles laid down by Supreme Court, which was not open to exception‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal.

Suleman Habibullah, Additional Advocate‑General, Sindh and Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioner.

Date of hearing: 19th June, 2001.

2002 SCMR 916

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Munir A. Sheikh, JJ

PROVINCE OF SINDH through Advocate‑General, Sindh‑‑‑Appellant

Versus

PETER JOHN KHOKHAR‑‑‑Respondent

Civil Petition for Leave to Appeal No. 497‑K of 2001, decided on 31st July 2001.

(On appeal from the order dated 22‑5‑2001 of the Sindh Service Tribunal, Karachi in Appeal No. 91/2000).

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

‑‑‑‑S. 4‑‑‑Police Rules, 1934, 8.12.21‑‑‑Constitution of Pakistan (1973) Art.212(3)‑‑‑Discharge from service‑‑‑Involvement of civil servant in criminal case, ‑‑‑ servant was discharged from service on such ground‑­During pendency of departmental appeal, civil servant was acquitted by Trial Court, but Departmental Authority dismissed his appeal‑‑‑Civil servant filed appeal before Service Tribunal and submitted that he would not claim back benefits, if his appeal was allowed to the extent of reinstatement in service‑­Additional Advocate‑General representing the Department stated no objection to suggested course, whereupon Service Tribunal accepted the appeal in said terms‑‑‑Contention of Department was that instead of allowing the appeal on the basis of concession made by Additional Advocate‑General the Service Tribunal should have applied its independent mind to the law of the subject and facts of the case, and noted that appeal was barred by time‑‑‑Validity‑‑‑Concession made by Additional Advocate‑General of behalf of the Department for reinstatement of civil servant without back benefits was binding on the Department‑‑‑Supreme Court declined to interfere with such concession‑‑‑Petition for leave to appeal was dismissed.

Suleman Habibullah, Additional Advocate‑General and Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 31st July, 2001.

2002 SCMR 918

[Supreme Court of Pakistan]

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

MUHAMMAD HAYAT SALEEM‑‑‑-Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Excise and Taxation Department, Karachi

and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 151‑K of 2001, decided on 19th June, 2001.

(On appeal from the judgment/order, dated 15‑1‑2001, of the Sindh Service Tribunal, at Karachi, passed in Appeal No.36/2000).

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

‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal before Service Tribunal‑‑‑Delay, condonation of‑‑­Authority passed final order against civil servant on 17‑12‑1999 but he filed appeal before Service Tribunal after 60 days alongwith application under S.5 of Limitation Act, 1908‑‑‑Tribunal was not convinced with the grounds advanced fox condonation of delay, because civil servant was in full knowledge of the facts‑‑‑Civil servant also failed to satisfy the Tribunal on the point that order dated 17‑12‑1999 was received by him on 18‑1‑2000 i.e. with one month's delay‑Tribunal dismissed the appeal being time‑barred‑‑­Validity‑‑‑Impugned order would show that Service Tribunal was right in dismissing the appeal being time‑barred‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner.

Date of hearing: 19th June, 2001.

2002 S C M R 920

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah

and Hamid Ali Mirza, JJ

DIRECTOR‑GENERAL, PAKISTAN COAST GUARDS, KARACHI and another‑‑‑Petitioners

Versus

ABDUL JABBAR‑‑‑Respondent

Civil Petition for Leave to Appeal No. 379‑K of 2001, decided on 19th June, 2001.

(On appeal from the judgment/order, dated 1‑6‑2001, of the High Court of Sindh, Karachi, passed in C.P. No. D‑617 of 2001).

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 179(1) & 193‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & .199‑‑­Constitutional petition before High Court‑‑‑Refusal to hand over passenger coach to petitioner on payment of redemption fine as ordered by Additional Collector (Customs) on the ground that appeal filed against such order had been dismissed in default and an application for its restoration: was pending adjudication‑‑‑Deputy Attorney‑General stated before High Court that he had no knowledge as to whether appeal filed by respondent had been restored or whether any stay order had been granted‑‑‑High Court directed the respondent to hand over passenger coach to petitioner within specified period‑‑‑Validity‑‑‑Deputy Attorney‑General conceded before Supreme Court that there was no stay order against order of Additional Collector of Customs‑‑‑Impugned order did not suffer from any jurisdictional error or misconstruction of law and thus, was not open to interference‑‑­Supreme Curt dismissed the petition and refused to grant leave to appeals.

Khursheed Hashmi, Deputy Attorney‑General and Akhlaq A Siddiqui, Advocate‑on‑Record for Petitioner.

Date of hearing: 19th June, 2001.

2002 S C M R 922

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui

and Faqir Muhammad Khokhar, JJ

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

WAPDA through Chairman, WAPDA and 2 others‑‑‑Respondents

Civil Petition No. 1720 of 2001, decided on 7th March, 2002.

(On appeal from the order dated 14‑4‑2001 passed by the Federal Service Tribunal, Islamabad in Appeal No. 161(R) CS of 2001).

Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑--

‑‑‑‑S. 20‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Delegation of powers‑‑‑Major penalty. of reduction of pay three steps down in time pay scale for three years‑‑‑Appeal against the penalty was dismissed by Service Tribunal‑‑‑Contention of the civil servant was that the Chief Executive had not been delegated any powers by the Chairman under the provisions of S.20 of the Pakistan Water and Power Development Authority Act, 1958, that the Service Tribunal should not have dismissed the appeal of the civil servant in limine in which complicated facts and law were involved; and that the holding of regular inquiry could not be dispensed with in facts and circumstances of the case‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the civil servant.

Sheikh Riaz‑ul‑Haque, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th March, 2002.

2002 S C M R 923

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Hamid Ali Mirza, JJ

HUSSAIN ALI and others‑‑‑--Appellants

Versus

KHAN ALI and another‑‑‑--Respondents

Criminal Appeal No.275 of 2000, decided on 8th March, 2002

(On appeal from the judgment dated 16‑4‑1999 passed by the High Court of Balochistan Quetta in Cr.A. No. 178 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S. 337‑A(i)‑‑‑Constitution of Pakistan (1973), Art.185(3) ‑‑‑ Leave to appeal was granted by Supreme Court to the complainant to determine as to what offences in facts and law had been committed by the accused and whether proper sentence had been passed or imposed upon him.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑A(i) & 335‑‑‑Criminal Procedure Code (V of 1898), S. 345‑‑­Compromise‑‑‑Complainant had admittedly received injuries of permanent nature on her ears and nose which in view of the medical certificate fell within the definition of Itlaf‑e‑Salaheyat‑i‑Udw, as defined under S.335, P.P.C.‑‑‑Parties, however, had entered into a compromise which was accepted in the terms noted therein and the accused was directed to pay an amount of Rs.1,,50,000 as, Arsh to the complainant in equal thirty‑six installments in the manner detailed in the order‑‑‑Appeal was disposed of accordingly.

Kedarmal v. The Crown AIR 1950 Ajmer 13(1); Corpus Juris Secundum, Vol.27; BBC English Dictionary and Concise Oxford Dictionary ref.

Appellants Nos. l and 2 in person.

Syed Ayaz Zahoor, Advocate Supreme Court for Respondent No. 1.

Ashraf Khan Tanoli, Advocate‑General and Akhtar Zaman, Additional Advocate‑General for the State.

Date of hearing: 8th March, 2002.

2002 S C M R 928

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Abdul Hameed Dogar

and Maulana Muhammad Taqi Usmani, JJ

ALLAHYAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.35(S) of 1999, decided on 4th January; 2001.

(On appeal from the judgment dated 19‑7‑1999 of the Federal Shariat Court, Islamabad passed in Jail Criminal Appeal No. 18/K of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Constitution of Pakistan (1973), Art.203F(2B)‑‑‑Testimony of the victim and the evidence of his brother and father had been supported by the medical evidence and the Chemical Examiner's Report‑‑‑Accused could not even remotely suggest to any of the witnesses the reasons which prevailed in substituting him for the real culprit‑‑‑Concurrent assessment of evidence by the two Courts below did not call for any interference‑‑­Leave to appeal was refused to accused by Supreme Court accordingly.

Akhlaq Ahmed Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 4th January, 2001

2002 S C M R 930

[Supreme Court of Pakistan]

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

FEDERATION OF PAKISTAN through Secretary

Finance and others---Appellants

Versus

Messrs GANDAF STEEL MILLS (PVT.) LIMITED---Respondent

Civil Appeal No. 1893 of 2001, decided on 28th January, 2002.

(On appeal from the judgment dated 3-4-2001 of the Peshawar High Court, Peshawar passed in W. P. No. 153 of 2001).

Sales Tax Act (VII of 1990)---

----Ss. 3 & 13---S.R.O. 517(1)/89, dated 3-6-1989---Constitution of Pakistan (1973), Arts. 185(3) & 199---Constitutional petition before High Court--­--S.R.O. S17(1)/89 giving incentive to industrialists to establish industry in Gadoon Amazai Industrial Estate for availing -tax holiday for unlimited period was amended through subsequent Notification, which provided that they would be entitled to one time relief of 25 % of the total value of raw material as decided by Economic Coordination Committee---Central Board of Revenue rejected the respondent's request for grant of said benefit--­ Respondent filed Constitutional petition, which was accepted by the High Court---Contention of petitioner was that respondent's application was belated, thus, was not entitled to the said benefit---Validity---Each and every industrialist affected on account of withdrawal of said Notification was entitled to one time relief of 25%---Economic Coordination Committee of the Cabinet did not fix a date before which such application was to be made, thus, its rejection by Central Board of Revenue on the ground of having been filed after the date fixed by Central Board of Revenue was illegal---High Court had not committed any illegality by directing the Board to grant said benefit to respondent---Supreme Court dismissed the appeal with directions to Central Board of Revenue to decide the respondent's application within specified time.

Messrs Diamond Industries (Pvt.) Limited through its Director Finance v. Federation of Pakistan through Ministry of Finance and 5 others C. A. 903 of 1999 ref.

Abdul Latif Yousafzai, Advocate Supreme Court for Appellants.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent.

Date of hearing: 28th January, 2002.

2002 S C M R 932

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Hamid Ali Mirza, JJ

HOUSE BUILDING FINANCE CORPORATION through

Managing Director, Head Office At Karachi

and another‑‑‑Petitioners

Versus

Malik MUHAMMAD ASHRAF ‑‑‑ Respondent

Civil Petition No‑423 of 2001, decided on 11th January, 2002.

(On appeal from the judgment order dated 19‑12‑2000 passed by Federal Service Tribunal, Islamabad in Appeal No.56‑R/CE/2000)

House Building Finance Corporation Services Regulation, 1957‑‑‑

‑‑‑‑Regin. 11‑‑‑Civil Servants Act (LXXI of 1973), S.19‑‑‑‑Service Tribunals Act (LXX of 1973), Ss. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Premature retirement from service‑‑‑Respondent being employee of House Building Finance Corporation made application for premature retirement but before its acceptance, he made written request for its withdrawal, which was turned down by the Corporation‑‑‑---Service Tribunal accepted the respondent's appeal‑‑Supreme Court granted leave to appeal, inter alia to examine whether employees of Corporation were not entitled to get benefit from instructions issued by Government of Pakistan from time to time particularly in respect of matters relating to retirement from service and such instructions on the basis of which, an application for premature retirement could be withdrawn; that whether respondent had submitted application to withdraw his request for premature retirement before passing of final order if so to what effect; and that whether respondent in view of O.M. No. 0132/12/63 (Imp)(1), elated 18‑8‑1966 as amended by Ministry of Finance, Government of Pakistan vide O.M. No.OB.2/12/63(Imp)(1), dated 14‑12‑1967, could withdraw his request of premature retirement, because according to this O.M. once such request was made, that could neither be modified nor withdrawn.

P L D 1973 Quetta 4 and AIR 1956 All. 153 ref.

Raja Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Sh. Riaz‑ul‑Haq, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Respondent.

Date of hearing: 11th January, 2002.

2002 S C M R 936

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rana Bhagwandas, JJ

CHAIRMAN, STATE LIFE INSURANCE CORPORATION

OF PAKISTAN and another‑‑‑-Appellants

Versus

ALI MUHAMMAD BANGASH‑‑‑--Respondent

Civil Petition for Leave to Appeal No. 1920 of 2000, decided on 7th January, 2001.

(On appeal from judgment of Federal Service Tribunal dated 6‑10‑2000 passed in Appeal No. 6(P) of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Termination of serge‑‑‑Respondent employed as Area Manager in State Life Insurance Corporation of Pakistan, after termination of his service on account of unsatisfactory performance, was reinstated in service through compromise with an undertaking given by him that he would try his level best to achieve the business target, if his old staff was made available to him‑‑‑Petitioners after evaluating the performance of respondent for one year found the same unsatisfactory, thus, terminated his services‑‑‑Service Tribunal accepted the appeal of respondent on the ground that according to undertaking given by him, old staff had not been made available to him; he had been subjected to victimization; he had not been paid other entitlements, due to which the could not work with peace of mind; and that according to petitioners' Board decision performance of Area Manager had to be adjudged on the basis of three years' evaluation and not one year's performance as had been done in the present case‑‑‑Validity‑‑‑Previous termination of services of respondent was got published by petitioners in newspapers informing public at large that they should not deal with him as employee of the petitioners, which obviously had consequence to render him helpless to earn the business unless through another publication, the public was notified that he had been reinstated‑‑‑Publication of such notice in newspaper was an implied condition of the terms of reinstatement of the respondent‑‑‑Petitioners did not do so in spite of respondent's requests made in this behalf‑‑‑No question of law of public importance was either involved or made out in the petition, which was a case of personal grievance‑‑‑Question of fact had been decided by Service Tribunal, to which no exception could be taken--‑‑‑Petitioners undertook that respondent would be provided those available members of staff, out of the staff originally attached with him; and that public notice would be issued in newspapers throughout the country that respondent was an employee of the petitioners and he could deal with its business‑‑‑If said conditions were fulfilled and other dues of respondent were paid during the service, then petitioners might according to rules and regulations, evaluate his performance of three years hereafter and then if necessary, proceed against him in accordance with Law‑‑‑Supreme Court dismissed the petition subject to said observations.

Abdur Rashid Awan, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 7th January, 2002

2002 SCMR 939

[Supreme Court .of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza

and Tanvir Ahmed Khan, JJ

MUHAMMAD NAWAZ‑‑‑-Petitioner

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN

and others--‑‑Respondents

Civil Petition No.270 of 2001, decided on 10th January, 2002.

(On appeal from the judgment/order dated 21‑10‑2000 passed by Federal Service Tribunal, Quetta in Service Appeal No.98(K) C.E./2000).

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

‑‑‑‑S.4‑‑‑Service Tribunals (Procedure) Rules, 1974, R.21‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑General Clauses Act (X of 1897), S. 27‑‑­--Constitution of Pakistan (1973), Art.212(3)‑‑‑Presumption‑‑‑Petition for leave to appeal barred by 23 days ‑‑‑Condonation of delay‑‑‑Contention of petitioner was that judgment was passed on 21‑10‑2000, but after waiting for its certified copy from Service Tribunal, he himself applied for its copy on 6‑12‑2000 and after obtaining the same filed the present petition‑‑‑Validity‑‑­Tribunal after signing the judgment was bound to send certified copy thereof to parties concerned under registered cover as provided by R. 21 of Service Tribunals (Procedure) Rules, 1974‑‑‑As per endorsement on copy of the judgment annexed with memo. of appeal the Tribunal had issued its copy to petitioner on 6‑11‑2000 and it would be deemed that its copy having been sent under registered cover had been duly received by him‑‑‑If petitioner contended otherwise, then burden shifted on him to satisfy that Tribunal had not sent copy of the judgment under registered cover and he had not received the same‑‑‑Ground urged by petitioner that in spite of said endorsement on judgment, he had not received the same, was not legally acceptable because under S.27 of General Clauses Act, 1897, presumption was that service had been effected upon him under a registered cover envelope containing the judgment and had been received by him‑‑‑Supreme Court dismissed the petition being barred by time.

Muhammad Aslam Uns, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 10th January, 2002.

2002 S C M R 941

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Qazi Muhammad Farooq

and Rana Bhagwandas, JJ

MUHAMMAD HASSAN, STENOGRAPHER, FINANCE

DIVISION, ISLAMABAD‑‑‑Petitioner

Versus

SECRETARY, PRIVATIZATION COMMISSION, ISLAMABAD------Respondent

Civil Petition for Leave to Appeal No, 1500 of 2000, decided on 10th January, 2002.

(On appeal from judgment of Federal Service Tribunal dated 25‑7‑2000 passed in Appeal No. 167(R) of 1999).

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 3(a) & 4(1)(b)(ii)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Compulsory retirement from service on charge of wilful absence from duty‑‑‑Departmental appeal filed by civil servant was accepted and said major penalty was converted into stoppage of two increments without cumulative effect‑‑‑Appeal filed by civil servant before Service Tribunal was dismissed‑‑‑Contention of civil servant was that two increments without cumulative effect had been stopped, but he had not been granted move‑over after two years, though at the time of inflicting penalty of stoppage of increments, he was drawing maximum pay of the post, which he was holding‑‑‑Validity‑‑‑No question of law of public importance was involved‑ ‑‑Civil servant had no case even on merits as he could not justify absence from duty for such a long time‑‑‑Service Tribunal had already taken a lenient view‑-‑Civil servant might agitate the matter of grant of move‑over before Departmental Authorities, and if he failed to get such relief, he might approach the Service Tribunal that being an independent matter‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition having no merits.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 10th January, 2002.

2002 S C M R 943

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza

and Tanvir Ahmed Khan, JJ

KHUSHAL KHAN‑‑‑Petitioner

Versus

MUSLIM COMMERCIAL BANK LTD. and others‑‑‑Respondents

Civil Petition No.735 of 2001, decided on 9th January, 2002.

(On appeal from the judgment/order dated 21‑11‑2000 passed by Peshawar High Court, Circuit Bench, Abbottabad in Writ Petition No. 130 of 2000).

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

‑‑‑‑S.25‑A‑‑‑Muslim Commercial Bank Limited (Staff) Service Rules, 1981, Item No. 12(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Non‑service of grievance notice before filing of grievance petition‑‑‑Effect‑‑‑Termination of service‑‑‑Petitioner being in employment of Muslim Commercial Bank Limited filed appeal before next higher Authority against his dismissal order, but the same was dismissed‑‑‑Labour Court dismissed his grievance petition‑‑‑Labour Appellate Tribunal dismissed his appeal on the ground that he had not served grievance notice on his employer, and that his departmental appeal could not be treated and equated as grievance notice, which was a statutory requirement to be fulfilled by the worker under S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Constitutional petition filed by petitioner was also dismissed by High Court‑‑‑Validity‑‑‑Petitioner had not served grievance notice upon his employer against his dismissal order‑‑­Appellate Authority was always considered to be distinct and different entity from the original Authority competent to make appointment‑‑‑Petitioner was appointed by Regional Manager being Competent Authority, whereas he had addressed appeal to the President of the Bank, who was not his Appointing Authority‑‑‑Petitioner being a Cashier was a Category official, thus, according to Muslim Commercial Bank Limited (Staff) Service Rules, 1981, President of the .Bank could not be his appointing Authority, but Regional Manager would be the employer of petitioner for purposes of S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Appeal filed by petitioner before President of the Bank could not be treated as grievance notice within the meaning of .S. 25‑A of Industrial Relations Ordinance, 1969‑‑‑Petitioner had initiated incompetent proceedings against the respondent as no grievance notice under S.25‑A had been issued, us such High Court had rightly declined him the relief‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

1984 PLC 89 and.C.P.S.L.A. No. 138yP of 1985 ref.

(b) Civil service‑‑

Appointing Authority" and "Appellate Authority" ‑‑‑Distinction‑‑­Appellate Authority is always considered to be distinct and different entity from the original Authority competent to make appointment.

Petitioner in person.

Qazi Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 9th January, 2002.

2002 S C M R 947

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, C.J., Sh. Riaz Ahmed and Syed Deedar Hussain Shah, JJ

Pir NAZIR AHMAD SHAH‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, States and

Frontier Regions Division, Islamabad

and 2 others‑‑‑Respondents

Civil Petition No. 1309 of 1999, decided on 8th January, 2002.

(On appeal from the judgment dated 8‑8‑1997 of the Federal Service Tribunal, Islamabad passed in Appeal No. 123(P)/1997).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997)] & 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Respondent‑Corporation removed the petitioner from service on 29‑8‑1994 on charge of embezzlement‑‑‑Petitioner's departmental appeal was dismissed on 4‑6‑1997, but he challenged the same before Service Tribunal in time‑barred appeal, which was accompanied with application for condonation of delay showing the reasons for approaching the Tribunal belatedly‑‑‑Service Tribunal dismissed the application for condonation of delay as well as the appeal on the ground that S.2‑A of Service Tribunals Act, 1973, came into force on 10‑6‑1997, which was not retrospective in operation, thus, petitioner was not a civil servant on the dates when the two impugned orders were passed‑‑‑Validity‑‑‑Service Tribunal should have taken a lenient view while considering the application for condonation of delay in appeal‑‑‑Supreme Court, in circumstances, converted the petition into appeal and accepted the same, set aside the impugned judgment and remanded the case to Service Tribunal with directions to reconsider the application for condonation of delay rather leniently in the light of observations of Supreme Court made in Muhammad Yaqoob's case (2000 SCMR 830) and unreported judgment in Civil Appeals Nos.882 to 890 of 1999 and simultaneously decide the appeal on merits so to obviate the eventuality of remand of the case again.

Azimullah, Ex‑Inspector v. Chairman, Board of Trustees, Abandoned Properties Organization and others 2001 PLC (C.S.) 358; Muhammad Yaqoob v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 and Civil Appeals Nos. 882. to 890 of 1999 ref.

Khush Dil Khan Mohmand, Advocate Supreme Court for Petitioner.

Haji Muhammad Zahir Shah, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 8th January, 2002.

2002 S C M R 950

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Qazi Muhammad Farooq

and Rana Bhagwandas, JJ

C.P.L.A. No. 1162 of 2001

Ch. MUHAMMAD ASHRAF‑‑‑Petitioner

Versus

STATE LIFE INSURANCE and others‑‑‑Respondents

(On appeal from judgment of Federal Service Tribunal dated 6‑2‑2001 passed in Appeal No. 8(P)(CE)/2000).

C.P.L.A. No. 1163 of 2001

MUMTAZ SHAHID ‑‑‑Petitioner

Versus

STATE LIFE INSURANCE and others‑‑‑Respondents

(On appeal from judgment of Federal Service Tribunal dated 6‑2‑2001 passed in Appeal No. 102(P)(CE)/2000).

C.P.L.A. No. 1164 of 2001

MIROZ KHAN‑‑‑Petitioner

Versus

STATE LIFE INSURANCE and others‑‑‑Respondents

(On appeal from judgment of Federal Service Tribunal dated 6‑2‑2001 passed in Appeal N. 103(P)(CE)/2000), Civil Petitions for Leave to Appeal Nos. 1162, 1163 and 1164 of 2001, decided on 15th January, 2002.

State Life Insurance Employees (Service) Regulations, 1973‑‑‑

‑‑‑‑Part II, S.4‑‑‑Service Tribunals Act (LXX of 1973),. Ss.2‑A & 4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Termination of service‑‑­Services of the petitioners employed as Area Managers in State Life Insurance Corporation were terminated on account of unsatisfactory performance for not achieving the requisite amount , of business‑‑‑Service Tribunal dismissed the petitioners' appeals on the ground that they were not permanent employees, thus, their services could be terminated as contract employees, if their performance was not found to be satisfactory‑‑­Contention of petitioners was that their services could not be terminated at the whims of the officers; according to State Life Insurance Employees (Service) Regulations, 1973, such action could be taken, which might be prescribed generally and specially by the Board; and that respondents had not referred to any decision made by the Board for taking action against an Area Manager in such circumstances‑‑‑Validity‑‑‑Appointment letters of petitioners as Area Managers showed that it was not an appointment on contract basis‑‑‑Order of dismissal from service was made on the basis of terms and conditions of their appointment, which did not contain any condition for securing business to a particular limit‑‑‑Service Tribunal had failed to appreciate the petitioner's case on merits on the assumption that they were contract employees‑‑‑Supreme Court granted leave to appeal to further examine the case in the light of submissions made by the petitioners.

Javed A. Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record for Petitioner.

M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 15th January, 2002.

2002 S C M R 953

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal

and Muhammad Nawaz Abbasi, JJ

SABOOR AHMAD‑‑‑-Petitioner

Versus

MANAGING DIRECTOR, SUI SOUTHERN COMPANY

LIMITED, UNIVERSITY ROAD, KARACHI

and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.859‑Q of 2000, decided on 10th January, 2002.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 8‑3‑2000 passed in Appeal No.25(Q) of 1998).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Concurrent finding of facts‑‑‑Supreme Court ordinarily does not interfere with concurrent finding of facts given by Departmental Authority and Service Tribunal.

Muhammad Munir Ahmad v. Water and Power. Development Authority 1990 SCMR 907; Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005; Faiz Ahmad v. Deputy Postmaster‑General, Lahore and others 1991 SCMR 368 and 'Muhammad Binyamin v. . Water and Power Development Authority 1991 SCMR 383 ref.

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

‑‑‑Ss. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Petitioner being employee of Sui Northern Gas Company was terminated from service on account of absence from duty due to his involvement in a criminal case‑‑­Petitioner was reinstated in service after his acquittal from criminal case, but the period of his absence was treated as special leave without pay‑‑­Departmental appeal as well as appeal preferred by the petitioner before Service Tribunal were dismissed‑‑‑Contention of petitioner was that period of his absence could not have been treated as special leave without pay, because he was involved in a false case, wherein he was acquitted and that performance of official duties during the period of his detention was not possible for him‑‑‑Validity‑‑‑Perusal of reinstatement order would show that reinstatement of petitioner was conditional‑‑‑Period of his absence had been rightly treated as "Special leave without pay" as the petitioner had no casual or earned leave to his credit thus the question of salary and other benefits for such period did not arise‑‑‑Finding of facts recorded by Departmental Authority and upheld by Service Tribunal did not suffer from any legal infirmity or non‑consideration of any material piece of evidence‑‑‑No question of public importance was involved in the case‑‑‑Supreme Court did not interfere with concurrent finding of facts given by Departmental Authority and Service Tribunal‑‑‑Supreme Court dismissed the petition being devoid of merit.

Petitioner in person.

Barrister Ch. Muhammad Jameel, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent.

Date of hearing: 10th January, 2002.

2002 S C M R 956

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza

and Tanvir Ahmed Khan, JJ

MUHAMMAD SIDDIQUE ‑‑‑---Petitioner

Versus

INSPECTOR‑GENERAL, FRONTIER CORPS, N‑W.F.P., PESHAWAR and others‑‑‑Respondents

Civil Petition No. 536 of 2001, decided on 8th January, 2002.

(On appeal from the judgment/order dated 4‑1‑2001 passed by Federal Service Tribunal, Islamabad in Appeal No. 211 (P)/CS of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

---‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Removal from service for disobeying lawful orders‑‑‑Petitioner being employee of Frontier Corps was awarded such punishment, against which his departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑Inquiry Committee had collected sufficient material to establish that petitioner was guilty of not obeying lawful orders of his command, which conduct was against the good order of service‑‑‑Petitioner being a member of disciplinary force was bound to have carried out lawful orders issued by his command, but he had been reluctant to do so‑‑‑Petitioner had boycotted the departmental examination and instigated other members of the force not to appear in examination‑‑‑Petitioner wanted to have examiner of his own choice, which was not permissible on any principle of law‑‑‑When Inquiry Committee was constituted, petitioner did not accept its composition and prayed that its members might be taken from some other units‑‑‑Such conduct of petitioner was sufficient to prove that he had no care about the orders of the command and had intentionally violated lawful orders‑‑‑Such conduct of the petitioner was not only unbecoming for a member of Disciplinary Force. but was seriously objectionable being a servant of Government‑‑‑Judgment passed by Service Tribunal was not open to any exception‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 8th January, 2002.

2002 S C M R 958

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Javed Iqbal

and Muhammad Nawaz Abbasi, JJ

MUSLIM COMMERCIAL BANK LIMITED through President

and another‑‑‑Appellants

Versus

MOMIN KHAN and 2 others‑‑‑Respondents

Civil Appeal No. 1085 of 1998, decided on 11th February, 2002. .

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 5‑3‑1998 passed in W.P. No. 122/97).

(a) Establishment of the Office of Wafaqi Mobtasib (Ombudsman) Order (1 of 1983)‑‑

‑‑‑‑Art. 9‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Employee of nationalized Bank which was privatized later on‑‑‑Dismissal from service‑‑‑Respondent after 11 years of his dismissal from service approached Review Board, which recommended his reinstatement in service‑‑‑Bank did not implement the recommendations‑‑‑Respondent approached Wafaqi Mohtasib, who affirmed said recommendations‑‑‑Review petition filed by Bank was dismissed by Wafaqi Mohtasib‑‑‑Bank filed Constitutional petition before the Sindh High Court challenging the validity of order of Wafaqi Mohtasib for want of jurisdiction‑‑‑Respondent being contesting party in said Constitutional petition without disclosing pendency thereof, filed Constitutional petition before Peshawar High Court for implementation of recommendations of Review Board, which was allowed ‑‑‑Contention‑of Bank was that Constitutional jurisdiction of Peshawar High Court could not be invoked during pendency of Constitutional petition tiled by Bank before Sindh High Court; Review Board had no jurisdiction to entertain the application of respondent, who was neither dismissed under Martial Law Regulation nor on political grounds nor Review Board had found his dismissal on account of political victimization; Wafaqi Mohtasib though not having jurisdiction in the matter, had admitted that Bank had been privatized and had yet passed order of his reinstatement with all back benefits; such order could not be passed and, ordered to be implemented in exercise of Constitutional jurisdiction; and that order of dismissal from service could not be interfered with by invoking Constitutional jurisdiction after two decades‑‑‑Supreme Court granted leave to appeal to examine said contentions.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of different High Courts cannot be approached on the same subject‑matter seeking the same relief either on the same grounds or on different grounds.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Jurisdiction of Wafaqi Mohtasib‑‑‑Matters relating to terms and conditions of employees of financial institutions controlled by the Government ‑‑‑Wafaqi Mohtasib had no jurisdiction to interfere in such matters.

(d) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)‑

‑‑‑‑Art. 9‑‑‑Constitution of Pakistan (1973), Arts 185(3) & 199‑‑­Constitutional petition‑‑‑Employee of nationalized Bank, but privatized later on‑‑‑Dismissal from service‑‑‑Respondent/employee after 11 years of his dismissal from service approached Review Board, which recommended his reinstatement in service‑‑‑Bank did not implement recommendations, over which respondent approached Wafaqi Mohtasib, who affirmed said recommendations‑‑‑Review petition filed by Bank was dismissed by Wafaqi Mohtasib‑‑‑Bank filed Constitutional petition before Sindh High Court challenging the validity of order of Wafaqi Mohtasib for want of jurisdiction, wherein respondent was a contesting party, but he without disclosing pendency thereof filed Constitutional petition before Peshawar High court for implementation of recommendations of Review Board on the strength of recommendations of Wafaqi Mohtasib, which was allowed‑‑­Validity‑‑‑Review Board was set up to revise cases in which dismissal from service was either for political reasons or in consequence to convictions awarded by Military Courts‑‑‑Review Board was neither competent to entertain the matter in issue and enlarge its jurisdiction to make a recommendation in the case of respondent nor said recommendations had created any right in his favour to be implemented by Bank or enforced through Constitutional jurisdiction of High Court‑‑Wafaqi Mohtasib had no jurisdiction in the matters relating to terms and conditions of employees of financial institutions controlled by Government‑‑‑Respondent being in contest with Bank in Constitutional petition pending before Sindh High Court on the same subject, could not maintain an independent/similar petition before Peshawar High Court‑‑‑Since the matter was sub judice before Sindh High Court, respondent either should have agitated the implementation of recommendations or should have filed a separate Constitutional petition before the Sindh High Court, which had already taken cognizance of the matter ‑‑‑Sindh High Court later on allowed the Constitutional .petition filed by Bank, which had attained .finality for want of challenge either through an Intra‑Court Appeal or a petition before Supreme Court‑‑‑Review Board and Ombudsman had no lawful authority to entertain representation/complaint of the respondent, thus, their recommendations having no legal sanction were not enforceable through Constitutional jurisdiction of High Court‑‑‑Supreme Court allowed the appeal and set aside impugned judgment in circumstances.

Yawar Ali Khan, Advocate Supreme Court and Mahmud‑ul‑Islam, Advocate‑on‑Record (absent) for Appellants.

Qazi Ghulam Rauf, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 11th February, 2002.

2002 S C M R 967

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

BADSHAH HASSAN ‑‑‑Petitioner

Versus

INTERIOR MINISTRY through Secretary, Government of Pakistan and another‑‑‑Respondents

Civil Petition for Leave to Appeal No. 860 of 2000, decided on 10th January, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 9‑3‑2000 passed in Appeal No.330‑P of 1998).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Service Tribunal, finding of‑‑‑Leave to appeal by Supreme Court, grant of‑‑‑Principle‑‑‑Where no substantial law, muchless question of law of public importance, had been raised in the appeal finding of Service Tribunal being a finding of fact Would not call for any interference by Supreme Court.

Ch. Muhammad Azim v. The Chief Engineer Irrigation and others 1991 SCMR 255 ref.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Finding of fact recorded by Tribunal on the basis of record and evidence before it, could not be interfered by Supreme Court.

Muhammad Nawaz v. Divisional Forest Officer, Jauharabad and 2 others 1982 SCMR 880 ref.

(c) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 3(d), 4(1)(b)(ii), 5 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Compulsory retirement from service on account of unsatisfactory performance and wilful absence from duty‑‑‑Departmental appeal as well as appeal preferred by civil servant before Service Tribunal against such penalty were dismissed ‑‑‑Validity‑‑­Callous, careless and indifferent attitude of civil servant towards official duties was demonstrative of the fact that he had never performed his duties seriously and remained absent on different occasions without intimation to the quarters concerned, which amounted to misconduct‑‑‑After having a proper enquiry and completion of all mandatory legal formalities as envisaged in Government Servants (Efficiency and Discipline) Rules, 1973 and affording him proper opportunity of hearing, civil servant had been leniently dealt with and retired compulsorily being habitual absentee, deserter and on account of lack of interest in official duties, after payment of commutation with monthly pension and no injustice had been done‑‑‑Action taken by Competent Authority was neither whimsical nor arbitrary, but was based on sound reasoning, concrete and worthy of credence and being unexceptionable hardly called for any interference‑‑‑Service Tribunal had rightly declined to interfere‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Khushdil Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 10th January, 2002.

2002 S C M R 970

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh, Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq, Mian Muhammad Ajmal, Syed Deedar Hussain Shah, Hamid Ali Mirza, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

Qazi HUSSAIN AHMAD, AMEER JAMAAT‑E‑ISLAMI

PAKISTAN, LAHORE and others‑‑‑Petitioners

Versus

General PERVEZ MUSHARRAF, CHIEF EXECUTIVE and others‑‑‑Respondents

Constitutional Petitions Nos. 15, 17 to 24 and Civil Petition No.512 of 2002, decided on 27th April, 2002. .

Referendum Order [Chief Executive's Order No. 12 of 2002]‑‑‑

‑‑‑‑Arts. 3 & 4‑‑‑Provisional Constitution Order [1 of 1999]‑‑‑Proclamation of Emergency dated 14‑10‑1999‑‑‑Proclamation of Emergency (Amendment) Order [Chief Executive's Order 2 of 2001]‑‑‑President's Succession Order [Chief Executive's Order 3 of 2001]‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition before Supreme Court‑‑‑Legality and vires of Referendum Order, 2002 on the constitutional plane as well as on the touchstone of the Supreme Court verdict in Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869‑‑­Contentions of the petitioners were that despite the validation of the Proclamation of Emergency dated 14‑10‑1999 and the Provisional Constitution Order, 1999 by the Supreme Court of Pakistan, Constitution of Pakistan (1973) still remained the supreme law of the land as laid down in Syed Zafar Ali Shah's case and the powers of the present Government were strictly circumscribed in the case of Syed Zafar Ali Shah; that at the present the ground norm of the country being the Constitution of Pakistan (1973) and the judgment of Supreme Court in Syed Zafar Ali Shah's case, the vires of the Referendum Order, 2002 had to be examined on the touchstone of the relevant provisions of the Constitution of Pakistan (1973) as well as the law laid down in Syed Zafar Ali Shah's case; that the Referendum Order, 2002 be declared illegal, ultra vires the Constitution of Pakistan (1973) and violative of the law laid down by Supreme Court in Syed Zafar Ali Shah's case; that Chief Executive had unlawfully occupied and taken over the position of the President of Pakistan in violation of the Supreme Court judgment in Syed Zafar Ali Shah's case, that the former President of Pakistan still continued to be the President notwithstanding the President's Succession Order, 2001; that writ in the nature of quo warranto be issued against the Chief Executive and that the holding of Referendum for election to the office of the President be declared illegal, unconstitutional and violative of the judgment of Supreme Court in Syed Zafar Ali Shah's case ‑‑‑Validity‑‑­Proclamation of Emergency (Amendment) Order [Chief Executive's Order No. 2 of 2001] and President's Succession Order [Chief Executive's Order No.3 of 2001] had been validly issued by the Chief Executive of Pakistan in exercise of his powers under the Proclamation of Emergency dated 14‑10‑1‑999 and the Provisional Constitution Order, 1999 as validated by Supreme Court in Syed Zafar Ali Shah's case PLD 2000 SC 869 and former President of Pakistan continued in office under the Provisional Constitution Order, 1999‑‑‑Referendum Order, 2002 was issued by the Chief Executive and the President of Pakistan in exercise of the powers conferred upon him by Supreme Court in Syed Zafar Ali Shah's case PLD 2000 SC 869 wherein the Supreme Court had validated the Proclamation of Emergency dated 14‑10‑1999 and Referendum Order, 2002 did not have the effect of amending the Constitution of Pakistan (1973)‑‑‑Supreme Court observed that question's with regard to the consequences flowing from the holding of Referendum under the Referendum Order, 2002 were purely academic, hypothetical and presumptive in nature and were not capable of being determined. at the present juncture‑‑‑Supreme Court, accordingly declined to go into said questions at the present stage and left the same to be determined at a proper forum at the appropriate time‑‑‑No case for issuing the writ of quo warranto, prayed for, having been made out, relief was declined by the Supreme Court and the constitutional petitions were disposed of being premature.

Syed Zafar Ali Shah v. General Parvez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 and Begum Nusrat Bhutto's case PLD 1977 SC 657 ref.

Dr. Farooq Hasan, Senior Advocate Supreme Court, Rai Muhammad Nawaz Kharal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in C.P. No. 15 of 2002).

Muhammad Warn Ch., Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑or‑Record for Petitioner (in C.P. No. 17 of 2002). .

Hamid Khan, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate‑on‑Record (absent) for Petitioner (in C.P. No. 18 of 2002).

Syed Sharif Hussain Bokhari, Advocate Supreme Court and Syed Abul Jafri, Advocate‑on‑Record (absent) for Petitioner (in C. P. No. 2002).

Petitioner in person (in C.P. No.20 of 2002).

Petitioner in person (in C.P. No.21 of 2002).

A. K. Dogar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in C.P. No.22 of 2002).

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner (in C.P. No.23 of 2002).

Petitioner in person (in C.P. No.24 of 2002).

Petitioner in person (in C.P. No.512 of 2002).

Makhdoom Ali Khan, Attorney‑General for Pakistan and Amir Hani Muslim, D.A.‑G. and Muhammad Ashraf Tanoli, Advocate‑General, Balochistan (on Court's Notice).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Maqbool Ellahi Malik, Advocate Supreme Court, Nisar Ahmed, Advocate Supreme Court, Rana Waqar Ahmed, Advocate with Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.P. No. 15 of 2002).

Maqbool Ellahi Malik, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.Ps. Nos. 17, 21, 23, 24 and 512 of 2002).

Syed Iftikhar Hussain Gillani, Advocate Supreme Court assisted by Muneeb Zia, Advocate and Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.P. No. 18 of 2002).

Abdul Hafeez Pirzada, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.Ps. Nos.19 and 22 of 2002).

Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.P. No. 20 of 2002).

Dates of hearing: 22nd to 27th April, 2002.

2002 S C M R 984

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

FAZAL AHMED alias FAZLA‑‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Jail petition No. 114 of 2001, decided on 18th March, 2002.

(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 20‑7‑2001 passed in Criminal Appeal No. 104 of 1999 and Murder Reference No.26 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Defence evidence was an afterthought which was not trustworthy and confidence inspiring to be given any importance‑‑‑Eye‑witnesses had consistently stated that the accused being armed with carbine had twice fired at the deceased from a reasonable distance‑‑‑Size of entry wounds showed that the same were caused with pellets and not bullets‑‑‑Recovery of pistol from the accused during investigation would not change the fate of the prosecution case as the same appeared to have been done by the Investigating Officer to oblige the cost of damaging the prosecution case‑‑‑Artificial contradiction created through dishonest investigation was ,pot fatal to the prosecution and the medical evidence was not in conflict with the ocular account‑‑‑Eye‑witnesses had absolutely no reason to falsely implicate the accused in the murder case and even their presence at the place of occurrence had not been seriously challenged by the defence‑‑‑Ocular testimony was convincing and trustworthy which was adequately supported by the motive and medical evidence‑‑‑No exception could be taken to the view formed by the two Courts below‑‑‑Leave to appeal was refused to accused by the Supreme Court.

Syed Ali Hassan Gillani, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 18th March, 2002.

2002 S C M R 992

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Abdul Hameed Dogar

and Tanvir Ahmed Khan, JJ

NIAZ AKBAR‑‑‑‑Petitioner

versus

PAKISTAN ATOMIC ENERGY COMMISSION through Chairman

and another‑‑‑‑Respondents

Civil Petition for Leave to Appeal No.230 of 2001, decided on 27th March, 2002.

(On appeal from the judgment, dated I1‑11‑2000 of the. Federal Service Tribunal, Islamabad, passed in Appeal No.399(R) (C.E.) of 2000).

(a) Pakistan Atomic Energy Commission Employees (Service) Regulations, 1974‑‑‑

‑‑‑‑Regln. 3.2‑‑‑Pakistan Atomic Energy Commission Ordinance (XVII of 1965), Ss. 13, 20 & 21‑‑‑General Financial Rules, Rr. 116 & 117‑‑Bye­Laws of Pakistan Atomic Energy Council, Bye‑Law No.20‑‑‑Employees of Pakistan Atomic Energy Commission‑‑‑Change in date of birth‑‑‑Scope‑‑‑No regulation in this regard has been made in Pakistan Atomic Energy Commission Employees (Service) Regulations, 1974‑‑‑Federal Government has been empowered under S.13 of Pakistan Atomic Energy Commission Ordinance, 1965, to control the power of Commission in respect of appointment of its officers and employees including their terms and conditions‑‑‑Rule 116 of General Financial Rules of Federal Government, thus, would be applicable to employees of the Commission, whereunder date of birth once recorded in service record could not be altered except only in the case of a clerical error.

(b) Pakistan Atomic Energy Commission Employees (Service) Regulations, 1974‑‑‑

‑‑‑‑Regln. 3.2‑‑‑Pakistan Atomic Energy Commission Ordinance (XVII of 1965), Ss. 13, 20 & 21‑‑‑General Financial Rules, Rr. 116 & 117‑‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.12‑A [incorporated on 31‑7‑2000)‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Change in date of birth‑‑‑Suit for declaration by employee of Pakistan Atomic Energy Commission‑‑‑Employee on the basis of decree of Civil Court passed in such suit got revised Matriculation Certificate and national identity card, and then applied to the Commission for change of his date of birth from 13‑6‑1964 to 11‑3‑1967, which accordingly made necessary amendments in his service record‑‑‑Commission on re­consideration of the matter, withdrew its earlier order‑‑‑Departmental appeal as well as appeal filed before Service Tribunal were dismissed‑‑‑Contention of employee was that since Commission on his application had corrected his date of birth, thus, a valuable right had accrued to him and principle of locus poenitentiae was not available in circumstances‑‑‑Validity‑‑‑Employee after a period of 13 years of issuance of his Matriculation Certificate had filed a declaratory decree which he had procured without impleading the Commission as a party, wherein he had taken a job on the basis of such document‑‑‑Sanctity would be given to employee's date of birth given by him 13 years prior to the date of securing decree in this regard at the time of his appointment in the Commission‑‑‑According to R. 116 of General Financial Rules of Central Government, only clerical error in birth certificate could be rectified‑‑‑No right could accrue to a party on the basis of an order passed in oblivion of the rules‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Syed Iqbal Haider v. Federation of Pakistan and another 1998 SCMR 1494; Haq Nawaz Kiani v. Province of Punjab through Chief Secretary, Government of Punjab, Civil Secretariat, Lahore and others 1998 SCMR 801; M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 and PLD 1992 SC 207 ref.

Fazal Ellahi Siddiqui, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Respondents.

Imitaz Ali, Additional Advocate‑General, N.‑W.F.P. (on Court's Notice).

Date of hearing: 14th November, 2001.

2002 S C M R 1000

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rana Bhagwandas, JJ

SAIFUR REHMAN and another‑‑‑Petitioners

versus

SHER MUHAMMAD and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.212 of 2001, decided on 6th March, 2002.

(On appeal from the judgment of Lahore High Court, Multan Bench dated 16‑11‑2000 passed in R.S.A. No. 170 of 1982). , (a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑ .

‑‑‑‑S. 3‑‑‑Limitation Act (IX of 1908), Art. 125‑‑‑Limited interest of widow‑‑‑Land allotted to widow in lieu of land left by her deceased husband in India was sold by her to defendants on 26‑8‑1963 through mutation‑‑­Plaintiffs filed suit for recovery of possession on the ground that widow holding the estate as limited owner could not alienate the land under Custom of Zamindara by which she was governed‑‑‑Trial Court decreed the suit, which decree was upheld by both the Appellate Courts‑‑‑Validity‑‑‑Widow sold the property on 26‑8‑1963, thus, the same was the date when title or right of the plaintiffs would be deemed to have been denied giving rise to a cause of action to file the suit‑‑‑Before such date on termination of limited interest in the estate by virtue of the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the parties had become joint owners of the land by way of inheritance‑‑‑Widow after termination of her limited interest was entitled only to a share in land allocated to her under Islamic Law and was entitled to sell her own share only and not beyond that‑‑‑Limitation started from the date when alienation was made as such suit had rightly been filed within 12 years therefrom‑‑‑Findings of Courts below that widow was not full owner as such could' not transfer the land by way of sale did not suffer from any illegality.

Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Mst. Zeenat Begum v. Mst. Iqbal PLD 1991 SC 427 and Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273 ref.

(b) Adverse possession‑

‑‑‑‑ Possession of a joint owner could not be treated as possession adverse to the other joint owners.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑

‑‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Courts below declared the entire sale made by widow in favour of defendants as void and ineffective against the rights of reversionaries/plaintiff as she being limited owner could not alienate the land allotted to her in lieu of the land left by her deceased husband in India‑‑‑Contention of the defendants was that widow was issueless, and on termination of her limited interest in the estate by virtue of the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, she had inherited 1/4th share under Islamic Law, thus, sale made by her to extent of 1/4th share was valid, but none of the Courts below had attended to this aspect of the case‑‑‑Supreme Court granted leave to appeal to consider said question

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th March, 2002.

2002 S C M R 1004

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar

and Tanvir Ahmad Khan, JJ.

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

through Chairman ‑‑‑ Appellant

Versus

Captain M.S.K. LODHI‑‑‑Respondent

Civil Appeal No. 1003 of 2001, decided on 28th March, 2002.

(On appeal from the judgment dated 24‑11‑2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No.77(K)(CE) of 2000).

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

‑‑‑‑S.4‑‑‑Martial Law Regulation 52 (C.M.L.A.s.), 1981‑‑‑Constitution o1 Pakistan (1973), Art. 212(3)‑‑‑Supreme Court granted leave to appeal to consider . as to whether Service Tribunal was legally justified to condone the delay of 9 years in preferring appeal; whether respondent having failed to join the service and having remained absent without any permission coup claim any lump sum compensation; and whether in view of removal o respondent under Martial Law Regulation 52, the Review Board could holy his dismissal as illegal.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Fault in approaching wrong forum for redressal of grievance would not at all. be a reasonable cause to condone the delay.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Martial Law Regulation 52 (C.M.L.A.'s), 1981‑‑‑Service Tribunals Act (LXX of 973), S.4‑‑‑Jurisdiction of Wafaqi Mohtasib‑‑­Removal from service under Martial Law Regulation 52‑‑‑Employee of Pakistan International Airlines Corporation‑‑‑Review Board directed his reinstatement in service‑‑‑Claim for lump sum compensation in lieu of reinstatement‑‑‑Employee approached Wafaqi Mohtasib for grant of such claim ‑‑‑Validity‑‑‑Wafaqi Mohtasib had no jurisdiction in the matter.

Shafatullah Qureshi v. Federation of Pakistan Civil Petition No.23‑K of 2000 fol.

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

‑‑‑‑S.4‑‑‑Martial Law Regulation 52 (C.M.L.A.'s.), 1981‑‑‑Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Arts. 9 & 32‑‑‑Limitation Act (IX of 1908), Ss. 5 & 14‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Employee serving as Cadet Pilot in Pakistan International Airlines was removed from service on 11‑9‑1981 under Martial' Law Regulation 52‑‑‑National Industrial Relations Commission and Review Board directed his reinstatement in service‑‑‑Corporation through letter, dated 13‑12‑1990 gave an option to employee to get lump sum compensation in lieu of reinstatement, But he submitted joining report on 1‑2‑1990‑‑­ Employee joined another Airlines on 12‑2‑1990 under a contract with an intimation to Corporation that he would report for assignment of his duty in Corporation thereafter‑‑‑Corporation granted such time to employee and required him to pay secondment charges @ 25 % of his basic pay‑‑‑Employee after expiry of lump sum compensation in lieu of his reinstatement in service from date of his removal under M.L.R. 52 till 31‑1‑1990, which dismissed his claim on 29‑6‑1994 and his appeal before President of Pakistan too was dismissed‑‑‑Employee on 18‑1‑2000 filed appeal before Service Tribunal against order of Wafaqi Mohtasib, which was accepted ‑‑‑Validity‑‑‑Wafaqi Mohtasib had no jurisdiction in the matter‑‑‑Appeal filed before Service Tribunal was time‑barred‑‑‑Fault in approaching wrong forum for redressal of grievance would not at all be a reasonable cause to condone the delay‑‑­ Employee was offered two options through letter, dated 13‑12‑1990, but he accepted the offer for re‑employment and r ported for same on 1‑2‑1990 as such he had waived his right to claim the compensation‑‑‑Cut date for availing an option for compensation as affectee of M.L.R. 52 was 31‑12‑1990‑‑‑Corporation had been asking the employee to join its service on terms of secondment, but on his failure to do so, his services were terminated and his request for compensation had rightly been disallowed‑‑­Employee had not paid requisite contribution towards his self‑arranged secondment‑‑‑Employee had not approached the Court with clean hands as he had concealed the fact of being already in employment ‑on contractual basis with another Airlines at the time of submitting joining report in Corporation‑‑‑Supreme Court accepted the appeal and set aside the impugned ,judgment.

Fazal‑i‑Ghani, Advocate Supreme Court for Appellant.

Respondent in person.

Date of hearing: 28th March, 2002.

2002 S C M R 1009

[Supreme Court of Pakistan]

Present: Jayed Iqbal and Tanvir Ahmed Khan JJ

SHAHZAD alias SHADDU and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petitions Nos. 720‑L, 744‑L and 749‑L of 2001, decided on 7th ,March, 2002.

(On appeal from the judgment, dated 10‑10‑2001 of the Lahore High Court passed in Crl. Appeal No.1369/T/1999 and M.R. 5 ‑ 99 .

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10‑‑‑Appreciation of evidence‑‑‑Corroboration‑‑‑Corroboration is not a rule of law but that of prudence‑‑‑Acid test of the veracity of the statement of the prosecutrix, no doubt, is the inherent merit of her statement because corroborative evidence alone could not be made a basis to award conviction‑‑‑Extent and the nature of corroboration required may vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every case‑‑‑All that is necessary is that the corroboration must be such as to connect or tend to connect the accused with the crime.

Ramzan Ali v. State PLD 1967 SC 545 and Ashraf v. Crown PLD 1956 FC 86 ref. .

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997; S.7‑‑‑Penal Code (XLV of 1860), Ss. 449, 411 & 506‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Zina‑bil‑Jabr‑‑‑Trustworthy statement of the prosecutrix needed no corroboration and such need would only arise in the circumstances indicating the possibility of her being a consenting party to sexual intercourse which was a ' rare phenomenon in cases of Zina‑bil‑Jabr‑‑­ Statement of the prosecutrix in the present case, however, had been corroborated by medical evidence, Chemical Examiner's Report and the fact»m of recovery‑‑‑Helpless girl being in the clutches of four armed persons could not make any resistance which otherwise was not a necessary prerequisite to prove the accusation of Zina‑bil‑Jabr‑‑‑From the absence of visible marks of violence on the body of the prosecutrix it could not be inferred that she was not subjected to Zina‑bil‑Jabr as medical evidence had confirmed that sexual intercourse had taken place‑‑‑F.I.R. having been promptly lodged assigning :he specific role to each of the accused, question of any deliberation, consultation or fabrication did not arise‑‑‑Neither the prosecutrix nor her father had any reason to falsely implicate the accused in the absence of any enmity‑‑‑Omission of scientific test of semen grouping would .not materially diminish the value of other overwhelming incriminating evidence brought on record‑‑‑Even if the prosecutrix was a girl of an easy virtue, no blanket authority could be given to accused to ravish the modesty of such‑like girls‑‑Death sentence only having been prescribed under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, question 'of any reduction did not arise‑‑‑Prosecution had established its case beyond shadow of doubt by producing cogent and concrete evidence‑‑.‑Leave to appeal was refused to accused in circumstances.

Ramzan Ali . v. State PLD .1967 SC 545: Ashraf v. Crown PLD 1956 FC 86; Ghulam Sarwar v. State PLD 1984 SC 218, Haji Ahmad v. State 1975 SCMR 69; Shahid Malik v. State 1984 SCMR 908; Ehsan Begum v State PLD 198'? FSC 2 d M. Akram v. State PLD 1989 SC 742 ref.

(c) Offence of Zina (Enforcement of Hudood Ordinance (VII of 1979)‑

‑‑‑‑S.10‑‑‑Zina or Zina‑bil‑Jabr‑‑‑Appreciation of evidence‑‑‑Semen grouping test‑‑‑Omission of scientific test of semen status and grouping of sperms is neglect on the part of prosecution which cannot materially affect the other evidence.

Haji Ahmad v. State 1975 SCMR 69; Shahid Malik v. State 1984 SCMR 908 and Ehsan Begum v. State PLD 1983 FSC 204 ref.

Ihsan‑ul‑Haq Chaudhry Advocate Supreme Court, Ch. Talib Hussain, Advocate‑on‑Record (absent) (in Cr.P. No.720‑L of 2001), Zafar Ullah Cheema, Advocate Supreme Court and. C.M. Lateef, Advocate‑on­-Record (absent) (in Cr.P.744‑L of 2001) and Nemo (in Cr.P.749‑L of 2001) for Petitioners.

Nemo for the State.

Date of hearing: 7th March, 2002.

2002 S C M R 1017

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD AMIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.238 of 2001, decided on 19th March, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 13‑9‑2001 passed in Crl. A. 34‑T of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 324 & 398‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 6 & 7‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Defence version was not supported by any direct or circumstantial evidence to justify its plausibility‑‑‑Arrest of the accused at the spot with weapon of offence (pistol) and his admission that the deceased had sustained injuries in the occurrence at his hand had provided a strong corroboration to the ocular account for proving charge against him‑‑‑Manner in which the accused while committing robbery in the house of the complainant took the life of the deceased and caused fire‑arm injuries to the prosecution witness in the street in broad daylight had squarely brought the case within the ambit of "terrorism" in terms of S.6 of the Anti‑Terrorism Act, 1997‑‑‑No sanctity could be attached to the school leaving certificate produced by accused in the High Court as no plea of his minority was taken at the trial and no evidence was produced in this behalf‑‑‑Age of accused in the police file as well as in the judicial record was recorded more than 25 years at the time of occurrence and thus, he was not in his extreme youth at that time‑‑‑No mitigation element in. favour of accused for lesser punishment was available on record‑‑­Offence of terrorism" punishable under S.7 of the Anti‑Terrorism Act, 1997, being an independent offence, .separate sentence both under S.302(b), P.P.C. and under S.7 of the said Act for committing such offences was quite legal‑‑‑Leave to appeal was refused by Supreme Court to the accused in circumstances.

Muhammad Arif Khan, Advocate Supreme Court and Zahoor Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 19th March, 2002.

2002 S C M R 1023

[Supreme Court of Pakistan]

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

PAKISTAN STEEL MILLS CORPORATION‑‑‑Petitioner

Versus

MUHAMMAD AZAM KATPER and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos.840‑K and 841‑K of 2001, decided on 30th November, 2001.

(On appeal from the judgment dated 1‑8‑2001 passed by the Federal Service Tribunal, Camp at Karachi in Appeal Nos.739 and 740(K)(CE) of 2000).

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

‑‑‑‑Preamble & S.4‑‑‑Service Tribunal has exclusive jurisdiction in respect of. matters relating to terms and conditions including disciplinary proceedings against civil servants.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Retrospectivity of legislation‑‑‑Scope‑‑‑Legislation concerning procedural matters would operate retrospectively‑‑‑Legislation not concerning mere, procedure, but more than a matter of procedure and touching a right in existence at the time of its passing would not operate retrospectively unless Legislature either by express enactment or by. necessary intendment gave such legislation retrospective effect‑-Dispute having become past and closed transaction creating a right in one's favour could not be taken away by giving retrospective operation to the amended statutory provision.

Commissioner of Income‑tax,. Karachi v. Eastern Federal Union Insurance Co. PLD 1982 SC 247; Kumir Mondal and others v. Paramatha Nath Chowdhury and others PLD 1963 Dacca 886; Mian Rafi‑ud‑Din and others v. The Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; Hassan and others v. Fancy Foundation PLD 1975 SC I; Pir Bakhsh and another v. The State PLD 1965 (W.P.) Lah. 308; Sakhi Muhammad v. Wajid Ali and others PLD 1964 (W.P.) Lah. 426; Nagina Silk Mill, Lyallpur v. The‑Income‑tax Officer and another PLD 1963 SC 322; Commissioner of Income Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Central Exchange Bank v. Ch. Dilawar Ali Khan and others PLD 1965 (W.P.) Lah. 628; State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Works Cooperative Housing Society and another v The Karachi Development Authority PLD 1969 SC 430; Indraj Singh and others v. Smt. Savitri Kunwar AIR 1966 Al1. 234; Maxwell on Interpretation of Statutes, 1962 Edns. pp.217, 219; AIR 1950 East Punj. 25; AIR 1942 Mad. 262; AIR 1944 All. 15 and Lemn v. Mitchell LR 1912 AC 400 ref.

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

‑‑‑‑S.2‑A‑‑‑Object and scope of S.2‑A of Service Tribunals Act, 1973 and its effect on vested rights/past and closed transactions‑‑‑Employees of a Corporation on promulgation of S.2‑A of Service Tribunals Act, 1973, became civil servants for limited purpose of providing remedy by way of appeal against an order of departmental authority of which civil servant, was aggrieved‑‑‑Provision of S.2‑A of Service Tribunals Act, 1973, could not be said to be only procedural in nature, but would be more than the matter of mere procedure, therefore, it could not be given retrospective operation unless legislation by express enactment or by necessary intendment gave it retrospective effect‑‑‑Provision of S.2‑A of the Act would not take away/impair/nullify or destroy a vested right of an employee (who subsequently became a civil servant), which had attained finality and the lis had become past and closed transaction on the basis of judgments passed by competent forum at the relevant time.

Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR

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

‑‑‑‑Ss. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997) w.e.f 10‑6‑1997], 4 & 6‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A, 37 & 38‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Respondents/employees as a result of transfer from another Mill joined the petitioner Corporation on 19‑6‑1989, over which they were informed through order, dated 18‑7‑1989 that their seniority would be counted from their joining the service of Corporation‑‑‑Respondents challenged such order before Labour Court, which set aside the same on 19‑2‑1.994‑‑‑Appeals filed by petitioner before Labour Appellate Tribunal were also dismissed on 14‑12‑1995 maintaining the order of Labour Court‑‑‑Constitutional petitions filed by petitioner challenging both the orders of Labour hierarchy stood abated after promulgation of S.2‑A of Service Tribunals Act, 1973‑‑‑Petitioner thereafter filed appeals before Service Tribunal which were dismissed‑‑‑Validity‑‑‑After Constitutional petitions having abated the judgments of Labour hierarchy remained in the field as legal, valid and effective orders having attained finality, thus, determination of seniority of respondents became a past and closed transaction‑‑‑Vested right had been created in favour of respondents on the basis of said judgments, which could not be taken away or impaired by insertion of S.2‑A in Service Tribunals Act, 1973‑‑‑Service Tribunal having been vested to exercise jurisdiction in appeal of civil servant against the original or appellate order passed by Departmental Authority would have no jurisdiction to nullify/set aside orders/judgments of Labour hierarchy, which had attained finality having also become past and closed transaction creating vested right in favour of the respondents, particularly when the orders of Labour hierarchy could not be termed to be orders of the Departmental Authority‑‑‑Order of Labour hierarchy, which had attained the finality could not be said to have been made ineffective, inoperative and unexecutable, unless and until those were set aside by competent forum under the law‑‑Service Tribunal had no , jurisdiction to determine the legality or propriety of order, dated 18‑7‑1989 passed by petitioner, which had been set aside by Labour hierarchy through its legal and valid judgments at relevant time creating a vested right in favour of the respondents‑‑?Supreme Court declined to grant leave to appeal and dismissed the petitions in circumstances.

Alvia Tableeghi Trust and others v. Mujeebur Rahman Alavi and others 1984 CLC 796; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A, 37 & 38‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997) w.e.f 10‑6‑1997] & 6‑‑‑Constitution of Pakistan (1973), Arts.199 & 212(3)‑‑?Constitutional petition‑‑‑Respondents/employees challenged the decision of petitioner/Corporation with regard to their seniority before Labour Court, which set aside the same‑‑‑Appeals filed by petitioner before Labour Appellate Tribunal were dismissed‑‑‑Constitutional petitions filed by petitioner challenging both the orders of Labour hierarchy stood abated after promulgation of S.2‑A of Service Tribunals Act, 1973‑‑‑Validity‑‑‑Both the competent forums in Labour hierarchy had arrived at concurrent finding, wherein no misreading or non‑reading of evidence or misapplication of law was found‑‑‑Abatement of proceedings before High Court took place forthwith i.e. on 10‑6‑1997, while appeals before Supreme Court were filed in November, 2000‑‑‑Supreme Court declined to grant leave to appeal and dismissed the petitions in circumstances.

Munib Ahmed Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 39th November, 2001

2002 S C M R 1034

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza

and Abdul Hameed Dogar, JJ

ABDUL HAFEEZ ABBASI and others‑‑‑Appellants

versus

MANAGING DIRECTOR, PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI and others‑‑‑Respondents

Civil Appeals Nos.2117 to‑ 2134 of 2001 and 12 of 2002, decided on 12th February, 2002.

(On appeal from the judgments/orders dated 29‑5‑2001 and 26‑6‑2001 passed by Federal Service Tribunal, Karachi in Appeals Nos.928(K)/1998 to 936(K)/1998 and 1191(K)/1998).

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

‑‑‑‑Ss. 2‑A, 4, 5 & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Employees of Pakistan International Airlines Corporation‑‑‑Supreme Court granted leave to appeal to consider, whether the appeals filed by the employees before Service Tribunal were not competent for want of making departmental appeals; whether they were reinstated into service on correct premises, whether they were entitled to back benefits and that the Tribunal was not justified in law in treating the period of their termination as leave without pay‑‑‑Petitions filed by the employer were barred by one day, wherein Supreme Court granted leave subject to determination of the question of limitation.

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

‑‑‑‑S. 2‑A‑‑‑Object and scope of S.2‑A, Service Tribunals Act, 1973‑‑­Section 2‑A of Service Tribunals Act, 1973 has extended a right to all the employees of the category falling within its ambit to have a forum of Federal Service Tribunal for redressal of their grievances expeditiously instead of approaching the Civil Courts‑‑‑Such employees have been treated/declared to be in the service of Pakistan only for said limited purpose, otherwise for all practical purposes, they cannot be treated in the service of Pakistan nor they enjoy rights/obligations available to a civil servant under Civil Servants Act, 1973.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal‑‑‑Re‑instatement‑‑‑Back benefits‑‑‑Service Tribunal ordered re‑instatement of appellants, but treated the period during which they remained out of job as leave without pay‑‑‑Validity‑‑‑Employee in order to become entitled to back benefits had to demonstrate before the original forum that during the pendency of appeal, he had not made any earnings by engaging himself into profit oriented activity either by accepting .an employment or doing some business‑‑‑Such prayer necessarily had to be made in the pleadings‑‑­Appellants in the present case had not mentioned in memo. of appeals filed before Service Tribunal about their engagement in commercial activities during the period, when they had remained out of job, thus, Service Tribunal had no jurisdiction to grant them back benefits‑‑‑Assertions so made by the appellants before Supreme Court about non‑making of earnings during such period being a statement of fact could not be accepted on the plea that appeal was the continuation of original proceedings—Supreme Court disposed of the appeals with observations that appellants could make a representation to Competent Authority for redressal of their grievance, and if such request was made, the same would be disposed of within specified time keeping in view the above principle.

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

‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Constitution of Pakistan'(1973), Art. 212(3)‑‑‑Appeal‑‑‑ Limitation‑‑‑Suit filed by the employees against order of termination of their service stood abated after insertion of S.2‑A in Service Tribunals Act, 1973‑‑‑Employees then filed appeals before Service Tribunal within 30 days of passing of abatement order, which were accepted‑‑‑Contention of the employer was that said appeals were time‑barred as the employees should have approached Service Tribunal within 90 days from date of insertion of S.2‑A in Service Tribunals Act, 1973 i.e. 10‑6‑1997‑‑‑Validity‑‑‑Since the question of limitation had not been taken up before Service Tribunal, Supreme Court declined to entertain the same.

(e) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑Appeal‑‑‑Termination of service‑‑‑Service Tribunal ordered the re‑instatement of employs, but employer did not take them on duty thus, deprived there from salary for such period‑‑‑Validity‑‑‑Employer had an obligation to honour the judgment of Service Tribunal and reinstate the‑ employees or if employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court‑‑‑Employer had not obtained any stay order, thus, judgment of Service Tribunal remained operative‑‑­Supreme Court directed that employees be reinstated with effect from the date of passing of judgment of Service Tribunal with all back benefits.

(f) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A, 4 & 5‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Employees of Pakistan International Airlines Corporation‑‑‑Termination of service without show cause notice‑‑‑Service Tribunal ordered the re­instatement of employees‑‑‑Contention of the Corporation was that services of the employees were governed by the principle of Master and Servant, thus, Service Tribunal had no jurisdiction to grant the relief of re­instatement, but in such situation at the best; employees would have claimed damages ‑‑‑Surpeme Court repelled the contention while holding that it was wrong to contend that on the theory of master and servant relationship, Service Tribunal had no jurisdiction to re‑instate an employee, whose services had been illegally terminated.

Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 fol.

(g) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A & 4‑‑‑Pakistan International Airlines Corporation Act (XIX of 1956), S.5(2)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Employees of Pakistan International Airlines Corporation‑‑‑Termination of service without show‑cause notice under the directives issued by the Prime. Minister Secretariat on 4‑3‑1997 requiring termination of all illegal appointments made during previous Government against merit/in violation of rules and regulations‑‑‑Service Tribunal ordered the reinstatement of employees‑‑­Contention of the Corporation was that in case of simpliciter termination of services without any stigma, the employees could not have been re‑instated on mere violation of principles of natural justice‑‑‑Validity‑‑‑Principle enshrined in maxim "Audi alteram partem" had to be applied in all judicial and non judicial proceedings notwithstanding the fact that right of hearing had not been expressly provided by the statute governing the proceedings‑‑­Employer might terminate the service of its employee without show‑cause notice in the case of .exigency of service‑‑‑Corporation had terminated the services of the employees under the directives issued by the Prime Minister Secretariat under the heading "Retrenchment"‑‑‑Recognised principle of retrenchment was not to remove all the employees from service except to a limited extent by following the principle last come first go‑‑‑Such directives could not be equated with an exigency of service to remove the employees from service‑‑‑Federal Government under S.5(2) of Pakistan International Airlines Corporation Act, 1956, might issue directives to the Corporation on matter of policy, which would be binding on the Corporation‑‑‑Office of Prime Minister alone did not constitute the Federal Government and thus, said directives were not strictly covered by S.5(2) of Pakistan International Airlines Corporation Act, 1956‑‑‑Employees had been made victim of the Prime Minister's directive alone‑‑‑Issuance of show cause in such circumstances, to the employees before terminating their services was incumbent upon the Corporation‑‑‑If the appointments of employees were presumed to be in violation of the Rules and Regulations and not on merits, even thus they had acquired a right for having served the Corporation from 1995 onward during the course whereof, they had been confirmed, which would mean that they had attained status of permanent employee having at right to remain in service until their appointments had been proved to be contrary to Regulations of the Corporation‑‑Supreme Court dismissed. the appeals in circumstances.

Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; 1998 SCMR 60; Civil Appeals Nos.366 of 2001 to 378 of 2001 and others and Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 ref.

(h) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Civil Servants Act (LXXI of 1973), Ss. 2 & 22(2)‑‑­Constitution of Pakistan (1973); Art.212(3)‑‑‑Pakistan International Airlines Corporation Act (XIX of 1956), Ss. 29, 30 & 31‑‑‑Pakistan International Airlines Corporation Rules, 1985, R.22(e)‑‑‑Termination of service‑‑‑Employees of Pakistan International Airlines Corporation challenged termination order by filing civil suits, which after insertion of S.2‑A in. Service Tribunals Act, 1973, stood abated‑‑‑Employees then filed appeals before Service Tribunal, which were accepted‑‑‑Contention of the Corporation was that appeals filed by the employees before Service Tribunal were not competent without exhausting departmental remedy ‑‑‑Validity‑‑­Civil servants under Civil Servants Act, 1973, by virtue of S.4 of Service Tribunals Act, 1973, was obliged to file departmental appeal under statutory rules meant for seeking departmental remedy before invoking the jurisdiction of Service Tribunal‑‑‑Where no such rules had been framed, then civil servant had to appeal to the next higher authority under S.22(2) of Civil Servants Act, 1973‑‑‑Employees were civil servants for the purposes of Civil Servants Act, 1973 under S.2(2) thereof‑‑‑Neither there was any statutory rules nor forum created by a statute to entertain such appeals/revisions‑‑­Departmental Authorities did not enjoy statutory power to entertain departmental appeals filed by aggrieved employees being members of the Corporation, which was being run by the Board of Governors‑‑‑Regulations framed by Board of Governors had not been authenticated by Federal Government‑‑‑Employees, in absence of statutory rules governing the affairs of their services could not be legally compelled to file appeals/review/representation to the Authority or next higher Authority before approaching the Service Tribunal for redressal of their grievance, but they could directly approach the Service Tribunal for having been treated civil servants for limited purpose i.e. to seek redressal of their grievance relating to terms and conditions of their services from Tribunal‑‑‑Departmental Authorities had ,contested the suit filed by the employees and had got knowledge about their grievance against the order of termination of their services, thus, alternatively plaints filed by them could be treated as a departmental appeals without prejudice to the rule laid down by the Supreme Court in the case of Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others (C.A. No.947 of 1999)‑‑‑Supreme Court dismissed the appeals in circumstances.

1992 SCMR 1789; 2002 SCMR 82; 1997 SCMR 197; Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 and Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and. others C.A.No.947 of 1999 ref.

(i) Civil service‑

‑‑‑‑Reinstatement‑‑‑Entitlement to back benefits of service ‑‑‑Principle‑‑­Employee on the eve of his re‑instatement by a judicial forum or Departmental Authority can get back benefits, if he succeeds in establishing that he had not been making earnings during the period, when he remained out of job‑‑‑Employees has to demonstrate such facts before the original forum‑‑‑Such prayer necessarily has to be made in the pleadings‑‑‑If during such period, employee has accepted other employment or engaged in profitable business, then any amount earned by way of salary from employment or as profits of such business would have to be set off against the salary due for two reasons, firstly, because a Government servant cannot without permission of Government serve any other master or engage in any other business and secondly, because on general principle too that a person cannot be allowed to reap a double advantage.

PLD 1981 SC 2,49; Pakistan. through General Manager, P.W.R., Lahore v. Mrs. A. V. Issacs PLD 1970 SC 415 and Qadeer Ahmad v. Punjab Labour Appellate Tribunal. Lahore and another PLD 1990 SC 787 fol.

(j) Civil service

‑‑‑‑Retrenchment‑‑‑Recognised principle of retrenchment is not to remove all the employees from service except to a limited extent by following the principle last come first go.

(k) Constitution of Pakistan (1973)

‑‑‑‑Arts. 185 & 212(3)‑‑‑Plea/point/objection/question not raised before lower Court/forum‑‑‑Effect‑‑‑Objection not raised before the forum, whose order had been assailed before Supreme Court, would not be entertained unless it had been shown that adjudication of such question was necessary as it involved question of public importance ‑or decision of such point would go to the root of the case.

(1) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 185 & 212(3)‑‑‑Appeal to Supreme Court‑‑‑Question of limitation‑‑­Proper forum for raising such question‑‑‑Normally, question of limitation is considered a mixed question of fact and law, and is required to be decided at the first instance by the Court seized of the matter keeping in view the material available on record, because appreciation of facts is not undertaken by Supreme Court in exercise of its Constitutional jurisdiction.

(m) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.212(3)‑‑‑Appointments made by Departmental Authorities on the directives of the persons at the helm of affairs/governing the country‑‑­Subsequent termination of services on the ground that such appointments were contrary to law as well as prevailing Rules and Regulations ‑‑‑Effect‑‑­Besides proceeding in such situation against the beneficiaries of so‑called illegal appointments the officers responsible for implementing such illegal directives should also be held equally responsible and sever action should be taken against them, so that in future, it may serve as a deterrent for other like‑minded person.

Secretary to Government of N.‑W.F.P. 1996 SCMR 413; Civil Petition for Leave to Appeal No. 1062 of 1998 and Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 ref.

(n) Interpretation of statutes‑

‑‑‑‑ Duty of Court‑‑‑Court/Tribunal seized of the matter was competent to interpret the law liberally with the object to extend its benefits largely to the aggrieved persons, provided such interpretation would not violate the spirit of law.

(o) Maxim‑‑‑

‑‑‑‑"Audi alteram partem"‑‑‑Application‑‑‑Principle enshrined in maxim "Audi alteram partem" has to be applied in all judicial and non-­judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As. Nos.2117 to 2125 of 2001).

Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate­-on‑Record for Respondents (in C.As. Nos.2117 to 2125 of 2001

Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate­-on‑Record for Appellants (in C.As. Nos.2126 to 2134 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court .and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in C.As. Nos.2117 to 2125 of 2001).

Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate-­on‑Record for Appellants (in C. A. No. 12 of 2002).

Nemo for Respondent (in C.A. No. 12 of 2002).

Date of hearing: 12th February, 2002.

2002 S C M R 1056

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

ZAFAR ULLAH BALOCH‑‑‑Petitioner

versus

GOVERNMENT OF BALOCHISTAN and others‑‑‑Respondents

Civil Petition No.6‑Q of 2002, decided on 27th February, 2002.

(On appeal from the judgment dated 6‑12‑2001 passed by Balochistan Service Tribunal in Service Appeal No.64/1998).

(a) Balochistan Civil Servants Act (IX of 1974)‑‑‑

‑‑‑‑S. 9‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Promotion‑‑­Eligibility‑cum‑fitness‑‑‑Promotion policy‑‑‑Service Tribunal, jurisdiction of‑‑‑Scope‑‑‑Promotion is not a vested right of a civil servant because it depends on eligibility‑cum‑fitness‑‑‑If a person is eligible for promotion being senior in rank in the grade but is not fit for share higher responsibilities, such civil servant would not be promoted to the next grade‑‑‑Eligibility for promotion of aggrieved civil servant can be subjected to judicial scrutiny by the Service Tribunal because it relates to terms and conditions of his service‑‑‑Fitness of a civil servant to hold next higher post depends upon his performance which he has been showing during the period prescribed for promotion to next grade and it is to he determined on the basis of material placed before Competent Authority including Annual Confidential Reports‑‑‑Performance of civil servant is to be evaluated, on quantifying the marks secured by him as per the invogue formula‑‑‑Where a right to consider the civil servant for promotion has been claimed on the ground that he has been bypassed in violation of the Promotion Policy, the Service Tribunal can examine the question of fitness of such civil servant.

Mian Abdul Malik v. Dr. Sabir Zameer. Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Mihammad Rahim Khan v. The Chief Secretary, N.‑W.F.P. and 4 others 1999 SCMR 1605 ref.

(b) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973). Art.212(3)‑‑‑Promotion‑‑‑Entry in Annual Confidential Report ‑‑‑Objection‑‑‑Civil servant on account of material discrepancies in one of his Annual Confidential Reports pertaining to the year 1997, had been deprived of requisite marks‑‑‑Contention of the civil servant was that if the entry in that Annual Confidential Report was treated to be as "very good" instead of good, he would have secured the requisite marks‑‑‑Validity‑‑Said entry was made in the Annual Confidential Report as far back as in the year 1997, therefore, its correctness could not be questioned at such late stage firstly for the reason that it was not an adverse entry and secondly on having come to know that the second countersigning officer had ranked him to be a good officer instead of very good, the civil servant did not challenge the entry before` any forum according to law‑‑­Leave to appeal was refused.

Mehta W.N. Kohli, Advocate‑on‑Record for Petitioner.

Haji Akhtar Zaman, Additional, Advocate‑General for Respondents Nos. l and 2.

Nemo for Respondent No.3.

Date of hearing: 27th February, 2002.

2002 S C M R 1061

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mina, JJ

Messrs TRACK TRIANGLE AVIATION SERVICES (PVT.) LIMITED through Chief Executive‑‑‑Petitioner

versus

CIVIL AVIATION AUTHORITY through Director‑General and another‑‑‑Respondents

Civil Petition for Leave to Appeal No. 197‑K of 2001, decided on 6th April, 2001.

(On appeal from the judgment/order dated 27‑3‑2001, passed by the High Court of Sindh, Karachi, in Constitutional Petition No. 1757 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑New plea‑‑‑Plea neither raised in affidavit‑in‑rejoinder nor urged before High Court, would not be available to the petitioner before Supreme Court.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.39‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition before High Court‑‑‑Maintainability‑‑‑Contract for carrying on work 6f Baggage Strapping and Tag Collection Services at Airport‑‑‑Petitioner was granted such contract through a licence agreement, whereunder ate had to make payment of security deposit and one month's licence fee in advance‑‑‑Cheque presented by petitioner for making such payment was dishonoured, over which Authorities cancelled the licence agreement‑‑‑Validity‑‑‑Nature of licence in favour of petitioner and its breach or otherwise might be determined before the competent forum but invocation of Constitutional jurisdiction of High Court for enforcement of the terms of a licence would not be appropriate‑‑‑Breach of agreement if was attributable to the Authorities even then remedy of petitioner, if any, would lie somewhere else, but not before High Court in Constitutional jurisdiction.

Khawaja Sharful Islam, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th April, 2001.

2002 S C M R 1064

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, C.J., Syed Deedar Hussain Shah and Khalil‑ur‑Rehman Ramday, JJ

GENERAL MANAGER/CIRCLE EXECUTIVE MUSLIM COMMERCIAL BANK LIMITED and another‑‑‑Petitioners

versus

MEHMOOD AHMED BUTT and others‑‑‑Respondents

Civil Review Petition No.55/L, Criminal Original Petition No. 32‑L of 1999 and Civil Miscellaneous Appeal No. 36 of 2001, decided on 29th January, 2002.

(On review from the judgment of this Court dated 22‑4‑1999 passed in C.P. No. 1773‑L of 1998).

(a) Civil service‑‑-

‑‑‑‑Re‑instatement‑‑‑Service benefits, grant of‑‑‑Principle‑‑‑Grant of service benefits to an employee, who had been illegally kept away from his employment, was the rule, and denial of service benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period.

(b) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XXVI, R.1‑‑‑Review petition‑‑‑Delay of 102 days in filing of review petition‑‑‑Absence of explanation‑‑‑Effect‑‑‑Ground for review was that respondent had practised fraud on the Court, which had led the Court into the passing of the judgment under review, thus, limitation did not run against the petitioners‑‑‑Validity‑‑‑Neither proof of any fraud having been played on the Court nor any explanation about delay of 102 days in filing the review petition, was available on record‑‑‑Review petition was dismissed in circumstances.

PLD 1954 Lah. 745; 1993 SCMR 618;1994 SCMR 782; PLD 1975 SC 331 and 1986 SCMR 1496 ref.

(c) Supreme Court Rules, 1980‑‑‑

‑‑‑‑Os.XXVI, R.1 & O.XXXIII‑‑‑Review petition‑‑‑Court directed the petitioners to pay service benefits to respondent from 12‑12‑1988 to 9‑9‑1997‑‑‑Petitioners sought review of said judgment on the ground that respondent had played fraud on the Court by concealing the fact of his having migrated to another country in year 1989 and settled there with no plan to return to Pakistan, thus, he was not entitled to service benefits for said period‑‑‑Validity‑‑‑Except for the petitioners' word of mouth, there was nothing on record to establish or even to indicate that respondent had been living abroad during all these years or had settled there and had no intention to return to Pakistan‑‑‑Declaration to said effect could not be given on mere oral statement of petitioners‑‑‑Mere fact that respondent had left the country and had gone abroad without any proof of his being gainfully employed somewhere during said period, was neither sufficient to deprive him of service benefits nor in absence of such proof, it could be held that he had committed any fraud on Court‑‑‑Review petition was dismissed in circumstances.

Raja Muhammad Akram, Senior Advocate Supreme Court instructed by Mehmood A. Qureshi, Advocate‑on‑Record for Petitioners.

M.A. Zafar, Advocate Supreme Court instructed by Syed Abul Asim Jaffari, Advocate‑on‑Record for Respondents.

Date of hearing: 29th January, 2002.

2002 S C M R 1067

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

KHAIR DIN and others‑‑‑Petitioners

versus

MUHAMMAD NIAZ and others‑‑‑Respondents

Criminal Petitions Nos.683‑L and 693‑L of 2001, decided on 15th March, 2002.

(On appeal from the judgment dated 1‑10‑2001 of the Lahore High Court, Lahore passed in Cr. A.273/96 and M.R. No. 162 of 1996).

Penal Code (XLV of 1860)‑‑-

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑‑Leave to appeal was granted by Supreme Court to re‑appraise the prosecution evidence and to, consider whether the High Court in circumstances of the case Was justified to reduce the sentence of accused from death to imprisonment for life.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners (in Cr.P. No.683‑L of 2001).

M.A. Qureshi, Advocate‑on‑Record and Ch. Mehdi Khan Mehtab. Advocate‑on‑Record for Petitioners (in Cr.P. No.693‑L of 2001).

M.A. Qureshi, Advocate‑on‑Record for Respondent (in Cr.P. No.683‑L of 2001).

Nemo for Respondent (in Cr.P. No.693‑L of 2001).

Date of hearing: 15th March, 2002.

2002 S C M R 1068

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD ANEES ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.774‑L of 2001, decided on 3rd April, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 23‑10‑2001 passed in Criminal Appeal No.981 of 1996/M.R. No.39/97).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑‑Sentence‑‑­Reduction‑‑‑Conviction of accused was based on correct appraisal of evidence and the same was consequently upheld‑‑‑Findings of the Trial Court as confirmed by the High Court were to the effect that the motive part of the story was not plausible‑‑‑Sister of accused according to the prosecution case was, married to the complainant and he had a grievance that his sister was being maltreated on account of which a Punchait was called and it was during the proceedings of the Principal that at the spur of moment something developed on account of which the incident of murder took place‑‑‑Such circumstances had eminently made the case of accused fit for reduction of sentence‑‑‑Petition for leave to appeal was converted into appeal and the sentence of death of accused was reduced to imprisonment for life with benefit of S.382‑B, Cr.P.C.

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

A.H. Masood, Advocate Supreme Court for the State.

Date of hearing: 3rd April, 2

2002 S C M R 1070

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

GOVERNMENT OF PUNJAB through the Secretary Communication and Works Department, Lahore and others‑‑‑Petitioner

versus

ASHERS TRADING CONSTRUCTION CO. and others‑‑‑Respondents

Civil Petition No.349 of 2002 and Civil Miscellaneous Application No.467 of 2002, decided on 9th April, 2002.

(On appeal from the judgment/order dated 3‑12‑2001 passed by Lahore High Court, Rawalpindi Bench in F.A.O. No.42 of 1997).

Constitution of Pakistan (1973)‑‑-

‑‑‑‑Art. 185(3)‑‑‑Appeal against consolidated judgment‑‑‑Procedure‑‑‑High Court dismissed the appeal filed by the petitioner against consolidated judgment passed in three cases‑‑‑Leave to appeal was granted by Supreme Court to examine as to whether non‑suiting of the petitioner on account of non‑filing of three appeals against three separate awards, was contrary to the principle of law pronounced by Supreme Court in the case of Haji Syed Ainullah v. Abdul Rashid reported as 1985 SCMR 1991.

Haji Syed Ainullah v. Abdul Rashid 1985 SCMR 1991 rel.

Ch. Arsahd Ali, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 9th April, 2002.

2002 S C M R 1071

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmad Khan, JJ

SHAUKAT NAZIR alias ZULFIQAR ALI alias BHUTTO and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Jail Petition No. 241 of 1999, decided on 6th September, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 13‑7‑1999 passed in Criminal Appeal No. 156‑J/1998).

Penal Code (XLV of 1860)‑‑-

‑‑‑‑Ss. 302/34, 394/34 & 324/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contentions were that the injured witness in her cross­examination had admitted that the accused at the time of occurrence had muffled their faces, thus, making the identification of accused doubtful and that the accused, three in number, had been sentenced to death for a single murder and an attempt to murder on the injured witness, though it had not been established as to who had inflicted the fatal injury to the deceased, thus, in the circumstances capital punishment was not warranted‑‑‑Leave to appeal was granted to accused by Supreme Court to reappraise the prosecution evidence for safe administration of justice‑‑‑Question of limitation was also to be considered at the time of hearing of the appeal as the petition through jail was barred by 59 days.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners.

Nemo for the State.

Dates of hearing: 5th and 6th September, 2001.

2002 S C M R 1073

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Hamid Ali Mirza, JJ

MUHAMMAD ARSHAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No. 180 of 1999, decided on 10th September, 2001.

(On appeal from judgment dated 18‑5‑1999 passed by the Lahore High Court, Lahore in Criminal Appeal No. 70 of 1994).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Contentions were that neither the Trial Court nor the High Court had considered the plea of right of self‑defence taken by the accused at the earliest in its true perspective; that the Courts below had erred in law in not specifying the relevant subsection of S.302, P.P.C. whereunder the accused was convicted and sentenced, as such specification being a requirement of S.367, Cr.P.C. Courts could not afford to do without it; that exculpatory part of confessional statement of accused could not be excluded from consideration by the concerned for and that the Courts below had erred in law in rejecting the plea of defence first and thereafter dealing with the prosecution evidence for convicting and sentencing the accused‑‑‑Leave to appeal was granted by Supreme Court to the accused to consider said contentions.

Muddassar alias Jimmi v. The State 1996 SCMR 3; Sultan Khan v. Sher Khan and others PLD 1991 SC 520: Javaid v. The' State. PLD 1994 SC 679 and Muhammad Nazir v. Tariq and another 1992 SCMR 983 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 10th September, 2001.

2002 S C M R 1076

[Supreme Court of Pakistan]

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

MAQBOOL REHMAN‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No. 73‑K of 2001, decided on 27th February, 2002. .

(Appeal from judgments of Sindh High Court, Karachi dated 10‑8‑2001 passed in Cr. Misc. Application No. 307 of 2000).

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

‑‑‑‑S. 561‑A‑‑‑Inherent jurisdiction of High Court‑‑‑Nature and scope.

In law, section 561‑A, Cr.P.C. does not confer inherent jurisdiction on the High Court. It merely assumes that there is something as "inherent jurisdiction" and then it preserves it to enable the High Court to make such orders as may be necessary to give effect to an order under Criminal Procedure Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is true that ordinarily inherent powers of the Court should not be invoked because inherent powers are exercised in extraordinary cases in the interest of justice. Such powers do not extend to uncalled for and unwarranted interference with the procedure prescribed by law, which must always be followed. Normally, High Court does not exercise its inherent jurisdiction unless there is gross miscarriage of justice and interference by the High Court seems to be necessary to prevent abuse of process of Court or to secure the ends of justice. Jurisdiction under section 561‑A, Cr.P.C. is neither alternative nor additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provisions should not be used to obstruct or direct the ordinary course of criminal procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice. It is neither akin to appellate jurisdiction nor to the revisional jurisdiction. The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non‑separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provision in the Code of Criminal Procedure be deemed to possess in its very constitution all such powers as are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist". 'the High Court has, in view of its general jurisdiction over all the Criminal Courts subordinate to it. inherent powers to give effect to any order of any such Court under the Code and to prevent the abuse of process of any such Court or otherwise to secure the ends of justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364‑A/365/368/34‑‑‑Criminal Procedure Code (V of 1898), 5.561‑A‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Quashing of proceedings by High Court assailed‑‑‑Basic mischief had arisen out of the ultrasound report given by the Lady Sinologist indicating twin child in the womb of the wife of the complainant‑‑‑Complainant's wife gave birth to a single healthy child as a result of caesarean section which was performed in the Operation Theatre of the Hospital under the supervision of Lady Doctor in the presence of a team of Doctors and para‑medical staff‑‑‑Complainant himself was also admittedly available in the Hospital premises outside the Operation Theatre and there was no occasion for removal of one of the children or kidnapping him in order to do away with his life, as mala fide and dishonestly alleged after a lapse of 13 days‑‑‑No direct or indirect substantial evidence was available even remotely tending to show that the Hospital Management had any animus or motive to deprive the complainant of his child and to commit the murder of an innocent child without any reason or rhyme‑‑‑Complainant himself had approached the Hospital Management for registration of his wife as a case of delivery and being informed about her condition after due deliberation and consideration had voluntarily executed an undertaking abiding by the consequences of the caesarean section‑‑‑Complainant was at liberty to accept or decline such course of treatment and to shift the patient to another Hospital for a second opinion, but he did not opt to do so‑‑‑Complainant had deliberately omitted to seek action against the Lady Sinologist whose aforesaid wrong report, duly admitted by her in writing, had given rise to the present controversy speaking volumes about the bona fides of the case, who was neither arrayed as accused nor cited as a witness before the Court of law‑‑‑Complainant had launched the prosecution without any legal or moral justification‑‑‑High Court was not debarred to quash the proceedings under S.561‑A, Cr.P.C. in cases where either the charge had been framed by the Trial Court or the accused were summoned by a Court of law‑‑‑Course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice‑‑‑High Court was under a duty to ensure that the process of law was not allowed to be misused and by passing the impugned order it had prevented the mischief and advanced the cause of justice‑‑‑Proceedings amounted to sheer abuse of process of law and the same had been rightly quashed‑‑‑Leave to appeal was refused to complainant by Supreme Court accordingly.

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

‑‑‑‑S. 561‑A‑‑‑Quashing of proceedings‑‑‑Scope‑‑‑Proceedings can be quashed even after framing of charge in the case‑‑‑Not incumbent upon Court to record evidence in all cases, wherein accused are summoned‑‑‑Question as to whether to allow the prosecution to continue or to nip in the bud depends on the facts of each case.

Umar Farooq, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent No. 1.

Azizullah K. Shaikh, Senior Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondents Nos.2 to 10.

Date of hearing: 27th February, 2002.

2002 S C M R 1082

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

MUHAMMAD AZAM‑‑‑Petitioner

versus

Mst. BAGBARI and others‑‑‑Respondents

Civil Petition No.2004‑L of 1999, decided on 23rd October, 2001.

(On appeal from the judgment/order, dated 6‑7‑1999 passed by Lahore High Court, Lahore in R.S.A. No.23 of 1995 and C.R. 1023 of 1995).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 39 & 42‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration and cancellation of gift deed‑‑‑Plaintiff being son of defendant's brother challenged the gift deed executed by her in favour of her husband through attorney on the ground of misrepresentation and fraud ‑‑‑Factum of gift and delivery of possession of property to her husband was admitted by defendant in written statement‑‑‑Dismissal of suit by Trial Court remained upheld up to High Court‑‑‑Validity‑‑‑Defendant being owner of the property had every right to use the same for her own benefit as well as for the benefit of her any other relative‑‑‑Defendant had executed gift deed in favour of her husband through her attorney (her son‑in‑law)‑‑‑No question of committing any misrepresentation or fraud by her husband, thus, had been made out‑‑­Defendant in her written statement as well as throughout the proceedings had maintained the transfer of property in favour of her husband‑‑‑Principle laid down in judgment reported as 1994 SCMR 818, thus, would not be applicable to the facts of present case‑‑‑Plaintiff had no locus standi to object to validity of gift deed as he had no legal entitlement in suit property inherited by defendant from her father‑‑‑Suit filed by plaintiff with regard to authenticity of gift deed was misconceived and without any legal justification‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

1994 SCMR 818 ref.

Mirza Naseer Ahmed, Advocate Supreme Court and Mahmoodul Islam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd October, 2001.

2002 S C M R 1085

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

NAWAB ALI ‑‑‑Appellant

versus

VICE‑CHANCELLOR, N.‑W.F.P. UNIVERSITY OF ENGINEERING & TECHNOLOGY, PESHAWAR and others‑‑‑Respondents

Civil Appeal No. 1329 of 1996, decided on 11th March, 2002.

(On appeal from the judgment dated 23‑4‑1996 of the Peshawar High Court, Peshawar, passed in Writ Petition 79 of 1995).

Educational institution‑‑-

‑‑‑‑ Prospectus of North‑West Frontier Province University of Engineering and Technoldgy, Peshawar, Chap. 5, cls. 5.2(8) & 6, Category 19‑‑­Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Admission‑‑‑Seat reserved for Gadoon area‑‑‑University issued advertisement on 19‑11‑1994 inviting applications for admission to 1st Year B.Sc. Engineering fixing last date for receipt thereof as 5‑12‑1994, whereas respecting reserved seat, last date for sending nominations was to be communicated to nominating Authority‑‑‑Dean of University through letter asked the Secretary, Government of N.‑W.F.P., to send nominations against reserved seat on or before 15‑11‑1994‑‑‑Appellant being bona fide resident of the area applied on 24‑11‑1994 for such seat, and his application reached the Secretary on 29‑11‑1994‑‑‑Respondent applied earlier than appellant, thus, his application reached the Secretary on 14‑11‑1994 and was forwarded to University‑‑­Appellant feeling aggrieved with said action of the Secretary filed Constitutional petition, which was dismissed by High Court ‑‑‑Validity‑‑­Dean of University had intimated the Secretary the last date for receipt of nominations as 15‑11‑1994‑‑‑Appellant could not have known about internal correspondence between Dean of University and the Secretary, unless and until the same was made public‑‑‑Appellant could not have any knowledge about last date for reserved seat, which had been internally fixed between Dean of University and the Secretary‑‑‑If last date was 15‑11‑1990, then why same had not been mentioned qua the reserved seat in publication of 19‑11‑1990‑‑‑If last date was 15‑11‑1994, then what was the fun in making publication in the press on 19‑11‑1994 after the last date and inviting applications from prospective candidates for sending nominations on reserved seats to the Secretary‑‑‑Judgment of High Court was based on surmises and conjectures as all said aspects had esaped its notice‑‑‑Appellant had completed his studies and his final result had been withheld by University simply on account of pendency of his appeal before Supreme Court‑‑‑Supreme Court accepted the appeal, set aside the judgment of High Court with direction to University Authorities to declare the result of appellant forthwith.

Javed A. Khan, Advocate Supreme Court for Appellant.

Mushtaq Ahmed, Incharge Legal Cell for Respondents Nos. l and 2.

Haris Khan, Additional Advocate‑General, N.‑W.F.P. for Respondents.

Date of hearing: 11th March, 2002.

2002 S C M R 1089

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ. and Qazi Muhammad Farooq, J

Mst. RASHEEDA BEGUM and others‑‑‑Petitioners

versus

MUHAMMAD YOUSAF and others‑‑‑Respondents

Civil Appeals Nos.327, 328, 1022 of 1995 and 1348 of 1996, decided on l lth April, 2002.

(On appeal from the judgment/order, dated 17‑4‑1993, 11‑12‑1993 and 14‑11‑1995 of the Lahore High Court, Lahore, passed in Civil Revision No. 186/88, Writ Petition No.3857/93, Civil Revisions Nos.1271/91 and 2274/95, respectively).

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S.12‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Agreement to sell‑‑‑Whether requires registration--‑­Agreement to sell itself does not create any interest in or charge on immovable property, rather same only creates a right to obtain another document conferring title in respect of immovable property mentioned therein, and for that very reason, the same does not require registration.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.10‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Agreement to sell‑‑‑Form‑‑­No legal provision existed to the effect that agreement to sell should only be in writing.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 17,(2)(a) & 79‑‑‑Agreement to sell‑‑‑Attestation by witnesses‑‑‑Proof of execution‑‑‑Agreement to sell involving future obligations, if reduced to writing and executed after coming into force of Qanun‑e‑Shahadat, 1984, is required by Art.17(2)(a) of Qanun‑e‑Shahadat, 1984 to be attested by two male or one male and two female witnesses, as the case may be‑‑‑Such agreement has to be proved in accordance with the provisions of Art.79 of Qanun‑e‑Shahadat, 1984.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 113 & 117‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Burden of proof‑‑‑Suit for specific performance of contract based on agreement to sell‑‑‑Onus to prove such contract would lie on plaintiff unless its existence was admitted by defendant.

(e) Contract‑‑‑

‑‑‑‑ Form of proof‑‑‑Must be in line with the format of document executed by parties to the contract.

(f) Evidence Act (I of 1872)‑‑‑

‑‑‑‑S.68‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17(2)(a) & 79‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Agreement to sell‑‑‑Attested and unattested by witnesses‑‑‑Proof of execution‑‑‑Agreement if executed prior to promulgation of Qanun‑e‑Shahadat, 1984 was not required by any law to be attested by witnesses‑‑‑Form of proof must be in line with the format of document executed by parties to the contract‑‑‑If agreement to sell had been reduced into writing and attested by witnesses, then its execution must be proved in accordance with provisions of S.68 of. Evidence Act, 1872, notwithstanding the fact that the same applied only to document required by law to be attested‑‑‑Where‑agreement to sell had been reduced to writing but 'not attested by witnesses, its execution and the contract embodied therein could be proved by other strong evidence and attending circumstances, which might vary from case to case‑‑‑Such evidence could also be produced in first category of cases as supporting evidence.

(g) Specific Relief Act (I of 1877)‑--

‑‑‑S.12‑‑‑Evidence Act (I of 1872), S 68‑‑‑Suit for specific performance‑‑­-Agreement to sell attested by two witnesses‑‑‑Execution, proof of ‑‑‑Non­ examination of attesting witnesses‑‑‑Effect‑‑‑Execution of agreement had not been proved within contemplation of S.68 of Evidence Act, 1872‑‑‑Bald statement of petition writer, who had allegedly scribed the agreement to sell, was not enough to prove its execution.

(h) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Evidence Act (I of 1872), S.68‑‑‑Contract Act (IX of 1872), S.62‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for specific performance of agreement to sell‑‑‑Plaintiff pleaded agreement to sell in respect of disputed land and payment of its sale price to defendants through different receipts‑‑‑Agreement to sell attested by two witnesses was in the shape of an extract from the register of a petition‑writer‑‑‑Plaintiff did not examine marginal witnesses of agreement to sell, rather they appeared as witnesses of defendant and denied its execution by deposing that when they signed the agreement, neither defendant was present nor any amount was paid in their presence‑‑‑Trial Court dismissed the suit‑‑‑Appeal and revision petition filed by plaintiff were dismissed‑‑‑Contention of plaintiff was that agreement was not required by law to be attested by witnesses, thus, non­examination of attesting witnesses was not fatal; and agreement to sell had been proved by means of secondary evidence of petition‑writer ‑‑‑Validity‑‑­None of the attesting witnesses had been examined by plaintiff‑‑‑Plaintiff had not placed on record and proved the document whereby receipt of sale price paid from time to time was acknowledged by defendant and contract was reiteraed‑‑Plea of novation of contract was also more imaginary than real for want of positive and tangible proof‑‑‑Supreme Court dismissed the appeal in circumstances.

Muhammad Saeed v. Mst. Sardar Begum 1990 SCMR 1176 ref.

(i) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S‑12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17(2)(a) & 79‑‑‑Suit for specific performance of agreement to sell‑‑‑Plaintiff examined only one attesting witness‑‑‑Trial Court dismissed the suit on the ground that agreement to sell had not been proved in accordance with Art.79 of Qanun‑e-­Shahadat, 1984‑‑‑Validity‑‑‑Agreement to sell having been attested by two witnesses and executed after promulgation of Qanun‑e‑Shahadat, 1984 ought to have been proved in accordance with Art.79 thereof‑‑‑Evidence on record consisted of only one attesting witnesses‑‑‑Payment of earnest money had not been proved‑ Evidence produced by plaintiff did not meet the requirement of Art.79 of Qanun‑e‑Shahadat, 1984.

Appellants in person (in CAs Nos.327 & 328 of 1995.

Respondents: Ex part (in CAs No‑327 & 328 of 1995)

Rai Muhammad Nawaz Kharal, A vocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellant (in C.A. No. 1022 of 1995)

M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents (in C.A. No. 1022 of 1995).

Mian Ghulam Hussain, Advocate Supreme Court for Appellant (in C.A. No. 1348 of 1996).

Abdul Waheed Chaudhry, Advocate Supreme Court for Respondents in C.A. No. 1348 of 1996).

Date of hearing: 21st February, 2002.

2002 S C M R 1098

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

KHAMISA ‑‑‑ petitioner

versus

Mst. ZAIB ELAHI and others‑‑‑Respondents

Civil Petitions Nos.769‑L and 943‑L of 2000, decided on 24th October, 2001.

(On appeal from the judgment/order, dated 25‑1‑2000 passed by Lahore High Court, Multan Bench, Multan‑in C.R. No.567‑D of 1982).

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for pre­emption ‑‑‑Sinker, doctrine of‑‑‑Applicability‑‑‑Plaintiff filed suit in respect of land purchased by defendants jointly‑‑‑Plea of first defendant (vendee) was that he being a tenant of. property had a preferential' right‑‑‑High Court dismissed the suit to the extent of first defendant (vendee) and decreed the same to the extent of second defendant (vendee) as shares of both the defendants‑vendees were set out specifically in sale‑deed and contribution of sale price was made individually‑‑‑Validity‑‑‑Shares of both the defendants­vendees according to sale‑deed were divisible and both of them had contributed proportionately towards the sale price‑‑‑View taken by High Court did not call for interference‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petitions in circumstances.

Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and Ghulam Muhammad and 11 others v. Bakhsh and 5 others PLD 1991 SC 563 ref.

Syed Sardar Shah Bokhari, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner (in C.P. No.769‑L of 2000).

Imrana Parveen Baloach, Advocate Supreme Court and Mehmood­ul‑Islam for Petitioner (in C.P. No.943‑L of 2000).

Date of hearing: 24th October, 2001.

2002 S C M R 1100

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

MAHMUD‑UL‑HASSAN and others‑‑‑Petitioners

versus

Mst. JAMILA FIRDOUS and others‑‑‑Respondents

Civil Petition No. 1182‑L of 1998, decided on 23rd October, 2001.

(On appeal from the judgment/order, dated 17‑4‑1998 passed by Lahore High Court, Lahore in C.R. No.2571 of 1989).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration and permanent injunction‑‑‑Two portions of a house i.e. northern and southern having independent access were allotted to the parties by Settlement Department‑‑­Petitioner filed the suit after dispute having arisen over the use of passage and a latrine‑‑Trial Court dismissed the suit, which was upheld up to High Court‑‑‑Petitioners filed petition for leave to appeal, over which Supreme Court appointed a Commission to inspect the disputed property and give his report‑‑‑Local Commission reported that both the parties could comfortably and without any interruption from either side, enjoy their respective property, if access as shown "A" in the plan was given to the party owning northern portion and the access shown as "B" in the plan was given to the party owning southern portion‑‑‑Supreme Court then remanded the case to High Court to decide revision petition after considering said evidence‑‑‑High Court on remand of case dismissed revision petition‑‑‑Supreme Court granted leave to appeal to consider, whether High Court had fully taken into consideration the direction made by Supreme Court in its earlier order.

Ch. Khursid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd October, 2001.

2002 S C M R 1104

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Javed Iqbal, JJ

BAKHTIAR AHMED ‑‑‑Petitioner

versus

MUHAMMAD YAR and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2363 of 2001, decided on 17th April, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 7‑6‑2001 passed in Civil Revision No. 144‑D of 1990).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision‑‑‑Suit for possession‑‑‑Defendant's plea was that plaintiff had gifted away disputed house to his wife in lieu of dower at the time of marriage‑‑‑Trial Court dismissed the suit on the finding that plaintiff had gifted the house to his wife, which was upheld by Appellate Court‑‑‑High Court dismissed the revision petition after finding that factum of gift had not been proved; other legal heirs being co‑sharers in the house had not consented to the gift; delivery of possession had not taken place; and plaintiff's letter for letting out the house on rent had been acted upon by real brother of his wife‑‑­Validity‑‑‑Having held that factum of gift had not been proved, High Court in all fairness ought to have accepted the revision petition and dismissed the suit, but such course had not been adopted‑‑‑Impugned judgment suffered from gross confusion and ambiguity‑‑‑Defendants conceded to setting aside of impugned judgment and remand of case to High Court for its fresh decision‑‑Supreme Court accepted said concession being fair, proper and reasonable and converted the petition into appeal and accepted same, set aside the impugned judgment and remanded the case to High Court for its fresh decision strictly in accordance with law.

Syed Asghar Hussain Sabswari, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Abdur Rashid Awan and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 17th April, 2002.

2002 S C M R 1106

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

Mst. SHAMIM BEGUM‑‑‑Petitioners

versus

MAQBOOL HUSSAIN and others‑‑‑Respondents

Civil Petitions Nos.682‑L and 1039‑L of 2000, decided on 25th October, 2001.

(On appeal from the judgment/order, dated 14‑12‑1999 passed by Lahore High Court, Multan Bench, Multan in C.R. No.322‑D of 1997).

Specific Relief Act (I of 1877)‑‑‑‑

‑‑‑‑Ss. 8 & 22‑‑‑Contract Act (IX of 1872), S.188‑‑‑Constitution of Pakistan (1973); Arts.l72 & 185(3)‑‑‑Supreme Court granted leave to appeal to consider, whether power of attorney executed by step‑mother of petitioner in favour of husband of petitioner had been validly executed in view of the fact that at the time, when power of attorney was executed, dispute relating to step‑mother's inheritance in the estate of her late husband was sub judice and petitioner was one of the contesting parties; whether in pursuance power of attorney petitioner's husband had legally entered into an agreement dated 11‑4‑1981 to sell the property of the step‑mother in favour of his wife (petitioner); whether on the basis of agreement dated 11‑4‑1981, any valid right had accrued . to petitioner for transfer of property in her name or otherwise; whether impugned judgment was based on correct appreciation of evidence available on record; whether High Court had rightly pressed into service the provision of S.22 of Specific Relief Act; whether the observation of High Court that dismissal of revision petition filed by petitioner would not confer any right on .respondents in property in dispute was correct; whether assertion of High Court that though there was strong possibility apparent from the record that step‑mother of petitioner had no legal heirs at the time of her death supported by any evidence, if so, to what effect; and whether High Court was right in holding that under the circumstances, case might be the one in which her estate would escheat to and vest in Provincial Government under Art. 172 of the Constitution.

Muhammad Kazim Khan, Advocate Supreme Court for Petitioner (in C.P. No.682‑L of 2000).

S. Abul Asim Jafri, Advocate‑on‑Record for Petitioners (in C.P. No. 1039‑L of 2000).

Date of hearing: 25th October, 2001

2002 S C M R 1108

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan JJ

MUHAMMAD SULTAN‑‑‑Petitioner

versus

MUHAMMAD ALI RAJA‑‑‑Respondent

Civil Petition for Leave to Appeal No.915 of 2000, decided on 4th April, 2002.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench dated 7‑4‑2000 passed in C.P. No. 38 of 1997).

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

‑‑‑‑Ss. 24(1)(2)‑‑‑Civil Procedure Code (V of 1908), Ss.115, 148 & 149‑‑­West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Pre‑emption suit‑‑‑Deposit of 1/3rd sale price‑‑‑Extension of time‑‑‑Date fixed by Court for making such deposit was declared holiday due to winter vacations‑‑‑Plaintiff filed application seeking permission to make said deposit with explanation that due, to vacations and his illness, he could not deposit the amount‑‑‑Trial Court accepted the application and deposit was made on same date‑‑‑Appellate Court upheld the order, but High Court accepted the revision petition filed by defendant‑‑‑Contention of plaintiff was that Trial Court had discretion to extend such period, which had been exercised judiciously, thus, High Court in exercise of its jurisdiction under S.115, C.P.C. was not competent to set aside orders of Courts below; provisions of S.24(1) of North‑West Frontier Province Pre‑emption Act, 1987 were not mandatory in nature despite the fact that Legislature had used the word "shall", but the same could be used as "may" to meet the circumstances beyond the control of a person to whom direction had been made to make the deposit; Legislature by means of S.24(1) of North‑West, Frontier Province Pre‑emption Act, 1987 had placed the condition upon pre‑emptor to deposit 1/3rd sale price in order to ensure, whether he had real intention to enforce his right, and when amount had been deposited with a delay of few days, then pre‑emptor could not be non‑suited for such hypertechnical reason and that Courts had always encouraged the decision of cases on merits instead of denying or granting relief on legal intricacies‑‑‑Defendant's contention was that provisions of S.24(1) of North­ West Frontier Province Pre‑emption Act, 1987 were mandatory as its subsection (2) had provided consequences in the form of rejection of plaint, thus, Court had not been left with discretion to extend the time at subsequent stage; discretion had to be exercised by Court only when law so provided, whereas under S.24(1) of North‑West Frontier Province Pre‑emption Act, 1987, no discretion could be exercised by Court with regard to extending period for deposit of 1/3rd sale price, thus, High Court had rightly corrected the irregularity committed by Courts below; and that provisions of S.13(6) of West Pakistan Rent Restriction Ordinance, 1969 and Ss.148 & 149, C.P.C. were different in nature and subject, whereas in pre‑emption cases as per mandatory provisions of S.24(2) of North‑West Frontier Province Pre‑emption Act, 1987, pre‑emptor's failure to deposit 1/3rd sale price by the date fixed by Court would mean that he had no intention in enforcing right of pre‑emption ‑‑‑Supreme Court granted leave to appeal, inter alia, to examine the said contentions of the parties.

Jahanzeb Khan v. Muhammad Iqbal 2000 SCMR.365; Zulfiqar Ali v. Akhtar Islam PLD 1967 SC 418 and Qadir Bakhsh v. Nizam‑ud‑Din Khan 2001 SCMR 1091 ref.

Muhammad Akram Sheikh, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Muhammad Munir Paracha, Advocate Supreme Court for Respondent.

Date of hearing: 4th April, 2002.

2002 S C M R 1112

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mina, JJ

MAQSOOD AHMAD‑‑‑Petitioner

versus

KHALID HUSSAIN KHAN and others‑‑‑Respondents

Civil Petition No.386‑K of 2001, decided on 5th December, 2001.

(On appeal from the judgment dated 27‑4‑2001 passed by the High Court of Sindh, Hyderabad Circuit in R.F.As. Nos.51 and 53 of 1996).

Sindh Rented Premises Ordinance (XVIU of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord‑‑‑Entitlement of co‑sharer to ejectment on personal requirement‑‑‑High Court allowed appeal filed by co‑owners of the premises and modified the order passed by Rent Controller‑‑‑Validity‑‑‑High Court had properly assessed the evidence on record and legally and equitably came to the conclusion that the co‑owner had proved his requirement in good faith‑‑‑Where no misreading or non‑reading or misapplication of law was pointed out. Supreme Court declined to interfere‑‑‑Leave to appeal was refused.

Abrar Hasan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Respondent in person.

Date of hearing: 5th December, 2001.

2002 S C M R 1114

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

NAZIR AHMED through L.Rs.‑‑‑‑Petitioner

versus

UMRA and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2036‑L of 2001, decided on 18th July, 2001.

(On appeal from the judgment dated 9‑5‑2001 of the Lahore High Court, Lahore, passed in Civil Revision No. 1731 of 1995).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115(1)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑‑Interference by High Court under S.115, C.P.C.‑‑‑Validity‑‑‑Where the judgments challenged before High Court concurrently resolve a controversy of facts one way or the other, such judgments cannot be interfered with by the High Court‑‑‑High Court in the present case had declined to interfere with the concurrent findings of fact recorded by the Courts below‑‑‑Supreme Court refused to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

M. Anwar Sipra, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 18th July, 2001.

2002 S C M R 1115

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

NASEER‑UD‑DIN and others-‑‑Petitioners

versus

Ch. ALI MUHAMMAD and others‑‑‑Respondents

Civil Petition No. 1433‑L of 2000, decided on 26th October, 2001.

(On appeal from the judgment/order, dated 4‑5‑2000 passed by Lahore High Court, Bahawalpur Bench in F. A.0. No. 12 of 2000BWP).

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

‑‑‑‑O.XXI, R.17‑‑‑Constitution of Pakistan (1973) Art.185(3)‑‑‑Execution petition-‑‑Limitation‑‑‑New plea‑‑‑Raising of new plea before Supreme Court‑‑‑Validity-‑‑Where question of non‑execution of decree on account of being barred by limitation was not agitated before Executing Court, Supreme Court declined to allow such question, to be restrained circumstances.

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

‑‑‑‑O.XXI, 8.103 & S.12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Execution proceedings‑‑‑Objection‑‑‑Petitioners claimed to be bona fide purchasers of suit property for valuable consideration‑‑‑Decree passed against the suit property was assailed by the petitioners in application under S.12(2), C.P.C.‑‑‑Decision on the application by the Civil Court was accepted by the petitioner as a result the decree achieved finality‑‑‑Objection to validity of the decree was again raised by the petitioners before the Executing Court at the time of execution proceedings‑‑‑Objection so raised was not entertained by the Courts below‑‑‑Validity‑‑‑After having accepted the order of the Civil Court, the petitioners could not be allowed to raise argument that the decree was nullity in the eyes of law and could not operate against them‑‑‑Supreme Court declined to interfere in, the execution proceedings‑‑‑Leave to appeal was refused.

Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th October, 2001.

2002 S C M R 1118

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

GULSHAN‑‑‑Petitioner

versus

MUHAMMAD TUFAIL and others‑‑‑Respondents

Civil Petition No. 1541‑L of 1998, decided on 23rd October, 2001.

(On appeal from the judgment/order, dated 8‑5‑1998 passed by Lahore High Court, Lahore in Civil Revision No. 1048 of 1992).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Constitution of ‑ Pakistan (1973), Art. 185(3)‑‑‑Revision‑‑­Appreciation of evidence by High Court ‑‑‑Judgemnt and decree passed by Trial Court was set aside by Lower Appellate Court‑‑‑High Court in exercise of its revisional jurisdiction disbelieved the‑evidence produced by defendant, therefore, judgment and decree passed by the Lower Appellate Court was set aside‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether in exercise of revisional jurisdiction High Court had rightly appreciated evidence available on record.

M. Saleem Chaudhry, Senior Advocate Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Ch. Khursheed Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for‑Respondents Nos. 1 to 5.

Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent No.6.

Date of hearing: 23rd October, 2001.

2002 S C M R 1120

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

Syed YAQOOB SHAH‑‑‑Petitioner

versus

XEN PESCO (WAPDA), PESHAWAR and another‑‑‑Respondents

Civil Petition No. 1123 of 2001, decided on 4th April, 2002.

(On appeal from the judgment/order dated 29‑1‑2001 passed by Federal Service Tribunal, in Appeal No. 342(P)/1999).

Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑

‑‑‑‑S. 5‑‑‑Electricity Act (IX of 1910), Ss.39 & 39‑A‑‑‑Federal Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Termination of setvice at direction of Army Officer ‑‑‑F.I.R. under S.39‑A, Electricity Act, 1910 was registered against the owner of brick‑kiln for having removed electricity meter to reverse its reading and having obtained unauthorised connection of electric supply‑‑‑Sub‑Divisional Officer on same day reported that petitioner (employee of WAPDA) had removed said meter, over which his explanation was called‑‑‑Executive Engineer without conducting any inquiry and probing into the matter, after receipt of explanation issued show‑cause notice to the petitioner, and thereafter terminated his services‑‑‑Service Tribunal dismissed the petitioner's appeal‑‑‑Validity‑‑‑Competent Authority under R.5, Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, enjoyed jurisdiction to dispense with inquiry, but subject to giving reason for the same‑‑‑Executive Engineer and Sub­-Divisional Officer had terminated the services of petitioner on the basis of bogus proceedings as there was a note on record written by Incharge Army Team to the effect "terminate him from service'‑'‑‑‑ Departmental record did not reveal on basis of which material said order had been passed arid what was the authority of Army Officer to direct termination of petitioner ‑‑‑Sub­-Divisional Officer and Executive Engineer instead of complying with said unlawful order should have followed the prescribed procedure to punish petitioner, if he was found guilty of the offence of removing meter‑‑­Supreme Court converted the petition into appeal and accepted the same; set aside the judgment of Service Tribunal as well as order of removal of petitioner from service; reinstated the petitioner into service with all back benefits to be payable by Executive Engineer .and Sub‑Divisional Officer personally at the ratio of 60 % and 40 % respectively as on account of their conduct and non‑following the procedure laid down under Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, petitioner had suffered and for their negligence in performing duties, public exchequer could not be burdened by making payment of back benefits‑‑‑Supreme Court directed WAPDA to conduct disciplinary proceedings against Executive Engineer and Sub‑Divisionsl Officer for not performing their duties accordingly and that WAPDA would be at liberty to initiate fresh departmental disciplinary proceedings against appellant, if so advised‑‑‑Supreme Court declined to take action against Member, Federal Service Tribunal, who heard the case, on his making statement on oath that he or any other Member had no knowledge about involvement of his son in the case.

Raja Muhammad Asghar, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Said Rehman, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Muhammad Ayub Khan, Member, FST, Islamabad.

Umar Farooq Bungash, XEN (PESCO), Gohar Ali, SDO (PESCO).

Date of hearing: 4th April, 2002.

2002 S C M R 1124

[Supreme Court of Pakistan]

Present: Javed Iqbal, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

Syed SIKANDAR ALI SHAH‑‑‑Appellant

versus

AUDITOR‑GENERAL OF PAKISTAN and others‑‑‑Respondents

Civil Appeal No. 32 of 2001, decided on 1st April, 2002.

(On appeal from, the judgment of the Federal Service Tribunal, Karachi, dated 27‑7‑2000 passed in Appeal No. 163(K)/1998).

(a) Civil Servants (Confirmation) Rules, 1993‑‑‑

‑‑‑‑8. 6(2)‑‑‑Civil Servants Act (LXXI of 1973), S.11(1)(i)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Supreme Court granted leave to appeal to consider, whether petitioner had acquired a right to revert to his parent organization having already retained his lien by Competent Authority or whether in view of 8.6(2) of Civil Servants (Confirmation) Rules, 1993 read with cl. (i) of subsection (i) of S.11 of Civil Servants Act, 1973, he had ceased to hold the lien.

(b) Civil Servants (Confirmation) Rules, 1993‑‑‑

‑‑‑‑R. 6(2)(3)(4)‑‑‑Civil Servants Act (LXXI of 1973), S.11(1)(i)‑‑­Government Servants (Efficiency and Discipline) Rules, 1973, R 41(b)(iv)‑‑­Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Termination of service during subsistence of lien period‑‑‑Civil servant joined other Organization after obtaining prior approval of Competent Authority of his parent department for retaining his lien for two years vide order dated 7‑5‑1996‑‑‑Civil servant after termination of his services by other Organization submitted joining report to his parent department on 4‑2‑1998, which remained pending for 3‑1/2 months, whereafter his services were terminated vide order dated 13‑5‑1998 w.e.f. 7‑5‑1996 i.e. the date on which he was relieved to join other Organization‑‑­Service Tribunal dismissed the appeal of civil servant relying on R.6(2) of Civil Servants (Confirmation) Rules, 1993‑‑‑Validity‑‑‑Termination order could not be issued with retrospective effect unless Competent Authority was expressly empowered in this regard by some statute or rules made thereunder‑‑‑Termination order dated 13‑5‑1998 was vague, wherein no specific rule of Civil Servants (Confirmation) Rules, 1993 had been mentioned on the basis whereof services of civil servant were terminated‑‑‑Removal of civil servant with retrospective effect was unlawful‑‑‑Civil servant had submitted joining report to parent department on 4‑2‑1998 i.e. within a period of two years for which his lien was retained‑‑‑Civil servant had never been absorbed permanently in other Organization, thus, his lien could not be terminated‑‑‑Department could not, show any plausible explanation as to how services of a civil servant having eleven years' service to his credit, could be terminated without adhering to ' prescribed procedure as enumerated in Civil Servants Act, 1973; Government Servants (Efficiency and Discipline) Rules, 1973 and Civil Servants (Confirmation) Rules, 1993‑‑‑Service Tribunal had erred while relying exclusively on R.6(2) of Civil Servants (Confirmation) Rules, 1973, which could not be read in isolation and provisions of sub‑rules (3) & (4) thereof could not be ignored‑-‑Various extraneous considerations having no nexus with controversy had prevailed upon Service Tribunal while deciding appeal, which being artificial and superfluous hardly deserved any consideration‑‑‑Supreme Court accepted the appeal and set aside impugned judgment directing reinstatement of civil servant with back benefits w.e.f. 4‑2‑1988, when he had submitted his joining report.

Secretary Education v. Viqar‑ul‑Haq 2000 SCMR 1978 and Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 ref.

(c) Civil service‑‑‑

‑‑‑‑ Termination of service with retrospective effect‑‑‑Validity‑‑‑Termination of service could not be with retrospective effect unless Competent Authority was expressly empowered, in this regard by some statute or rules made thereunder.

Noor Muhammad v. Member Election Commission 1985 SCMR 1178; Noor Muhammad v. Muhammad Abdullah 1984 SCMR 1578; Dr. Muhammad Abdul Latif v. The Province of East Pakistan PLD 1964 Dacca 647 and Nawab Syed Raunaq Ali v, Chief Settlement Commissioner PLD 1973 SC 236 ref.

(d) Civil service‑‑‑

‑‑‑‑ Competent Authority, power of‑‑‑Rectification of wrong‑‑‑Competent Authority could not rectify a wrong after lapse of considerable period and that too without following the prescribed procedure.

(e) Civil service‑‑-

‑‑‑‑ Political influence‑‑‑Effect‑‑‑Duty of Competent Authority‑‑‑Competent Authority should be bold enough to face political influence‑‑‑Obeying capricious and arbitrary directions of political bosses without raising slightest protest by Competent Authority depicts a cowardly and condemnable trend.

M.M. Aqil Awan, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record (absent) for Appellant.

Sardar M. Aslam, Deputy Attorney‑General for Respondents.

Date of hearing: lst April, 2002.

2002 S C M R 1130

[Supreme Court of Pakistan]

Present Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

PAKISTAN INTERNATIONAL AIRLINES‑‑‑Petitioner

versus

OMAR SAEED KAZI‑‑‑Respondent

Civil Petition No. 131‑K of 2001, decided on 18th April, 2002.

(On appeal from the judgment/order dated 6‑12‑2000 passed by Federal Service Tribunal, Islamabad in Appeal No. 1322‑K of 1998).

Constitution of Pakistan (1973)‑--

‑‑‑‑Art. 212(3)‑‑‑Reinstatement in service‑‑‑Illegal appointment‑‑‑Service of employee of Pakistan International Airlines Corporation were terminated for the reason that his appointment was the result of favouritism and nepotism shown to him‑‑‑Service Tribunal allowed the appeal filed by the employee and he was reinstated in service‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider, whether appointment of the employee as Officer Marketing had been made contrary to the principle laid down by Supreme Court in the case of Abdul Jabbar Memon reported as 1996 SCMR 1349 or otherwise.

Abdul Jabbar Memon and other's case 1996 SCMR 1349 ref.

Fazal‑e‑Ghani, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 18th April, 2002.

2002 S C M R 1135

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

AZHAR MAJEED KHALID‑‑‑Appellant

Versus

FORCE COMMANDER AIRPORT SECURITY FORCE QUAID‑E‑AZAM INTERNATIONAL AIRPORT HQ KARACHI and 2 others‑‑‑Respondents

Civil Appeal No. 152 of 1999, decided, on 29th January, 2002.

(On appeal from the judgment dated 1‑7‑1998 of Federal Service Tribunal, Islamabad passed in Appeal No.477(K) of 1998).

(a) Airport Security Force Act (LIBLVII of 1975)‑‑‑

‑‑‑‑S. 7‑A(4)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the Service Tribunal had correctly applied the ratio decidendi of the judgment of Supreme Court in the case titled‑ Force Commander, Airports Security Force, Karachi and others v. Haji Muhammad Rashid and another reported as 1996 SCMR 1614.

Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614 ref.

(b) Airport Security Force Act (LXXVH of 1975)‑‑-

‑‑‑S. 7‑A(4)‑‑‑Pakistan Army Act (XXXIX of 1952), Preamble—Service Tribunals Act (LXX of 1973), S.4‑‑‑Dismissal from service‑‑‑Jurisdiction of Service Tribunal‑‑‑Civil servant was working as Sub‑Inspector in the Airports Security Force and on account of absence from, duty he was dismissed forthwith by the Chief Security Officer‑‑‑Appeal filed by civil servant was dismissed for want of jurisdiction‑‑‑Validity‑‑‑Service Tribunal or for that matter any Authority, except as mentioned in S.7(A) of the Airports Security Force Act, 1973, had no jurisdiction to vary, modify, alter, annul, set aside, revise or review any order passed by officer of the force authorised under the Pakistan Army Act, 1952‑‑‑Chief Security Officer being an officer of the force within the , meaning of Pakistan Army Act, 1952, the Tribunal had rightly declined to entertain the appeal for want of jurisdiction‑‑‑Supreme Court declined to interfere with the order passed by the Service Tribunal‑‑‑Appeal was dismissed.

Gul Muhammad v. The Force Commander and another 1999 SCMR 2935 and Fasihuddin v. Khawar Latif Butt and others 1993 SCMR 1 distinguished.

Kunwar Mukhtar Ahmad, Advocate Supreme Court for Appellant.

Ch. Sultan Mansoor, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Muhammad Munir (Legal Officer), ASF.

Muhammad Ishaque, Security Officer, ASF.

Respondent No.3: Ex parte.

Date of hearing: 29th January, 2002.

2002 S C M R 1138

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Syed Deedar Hussain Shah, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Executive Director, Karachi, and another‑‑‑Petitioners

versus

Doctor WASEEM IMRAN SHEIKH and another‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1877 of 2000, decided on 17th April, 2002.

(On appeal from judgment dated 27‑10‑2000 passed by the Federal Service Tribunal, Islamabad in Appeal No. 104(R)(CE)/2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑State Life Employees (Service) Regulations, 1973, Reglns.27 & 33‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Termination from service‑‑‑Departmental remedy, non‑availing of‑‑‑Appeal before Service Tribunal was filed without filing of appeal before the Departmental Authorities‑‑‑Validity‑‑‑Where appeal against termination from service was not provided in Reglns‑ 27 & 33 of the State Life Employees (Service) Regulations, 1973, the employee had correctly approached the Service Tribunal for redressal of his grievance‑‑‑Service Tribunal, after considering each and every aspect of the case, had rightly allowed the appeal of the employee and reinstated him in service with back benefits‑‑‑Judgment passed by the Service Tribunal was well‑reasoned and based on the law laid down by Supreme Court and was not open to exception‑‑‑Question of public importance as contemplated under Art.212(3) of the Constitution was not involved in the case‑‑‑Leave to appeal was refused.

Pakistan International Airlines Corporation through its Chairman, Head Office Karachi and others v. Koural Channa and others 1999 PLC (C.S.) 1539 and Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 . SCMR 197 ref.

Abdur Rashid Awan, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Nasir Saeed Shaikh, Advocate Supreme Co with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No .1.

Date of hearing: 17th April, 2002.

2002 S C M R 1141

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

MUHAMMAD ZUBAIR and another‑‑‑‑Petitioners

versus

THE STATE‑‑‑‑Respondent

Jail Petition No. 111 of 2001, decided on 28th March, 2002.

(On appeal from the judgment dated 24‑7‑2001 of the Lahore High Court, passed in Criminal Appeal No. 151 of 1998).

(a) Penal Code (XLV of 1860)‑--

‑‑‑‑S.302(b)/34‑‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ocular version was fully supported by medical evidence and recovery of blood­stained dagger at the instance of accused coupled with the positive reports of the Chemical Examiner and the Serologist‑‑‑Forthright, definite and credit­worthy ocular evidence had rightly been relied upon by the Courts below‑‑­Murder was premeditated‑‑‑Accused had failed to discharge the burden of proving the plea of grave and sudden provocation which was on him and he could not even show the slightest possibility of his version being true‑‑­Evidentiary value of the recovery of the dagger was not diminished on account of some‑delay in the recovery and in its despatch to the Chemical Examiner/Serologist‑‑‑No ill‑will or motive having been attributed to the Investigating Officer in absence whereof the question of false plantation of dagger would not arise ‑‑‑Acquittal of co‑accused did not affect the overwhelming incriminating evidence available on record against the accused ‑‑‑Impugned judgment being free from any illegality or infirmity did not warrant any interference by Supreme Court‑‑‑Leave to appeal was refused to accused accordingly.

Dhanno Khan's case 1957 Cr.LI 498; Manawar Ali v. The State 2001 SCMR 614; Khalid Javed v. Ansar Khan 1995 SCMR 1846; Anwarul Hassan v. State 1980 SCMR 649; Muhammad Iqbal v. Muhammad Tahir PLD 1985 SC 361; Riaz Hussain v. The State 2001 SCMR 177 and Samano v. State 1973 SCMR 162 ref.

(b) Criminal trial‑‑-

‑‑‑‑ Appreciation of evidence‑‑‑Maxim "falsus in uno falsus in omnibus" is not applicable in prevalent system of criminal administration of justice and there is no rule of universal application that where some accused persons have not been found guilty, the other accused would ipso facto stand acquitted, because the Court has to sift the grain from the chaff.

Riaz Hussain v. The State 2001 SCMR 177 and Samano v. State 1973 SCMR 162 ref.

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

Date of hearing: 28th March, 2002

2002 S C M R 1146

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

FAIZ MUHAMMAD and 7 others‑‑‑‑Petitioners

versus

AISHA BIBI and 6 others‑‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1694‑L of 1999, decided on 23rd October 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 27‑9‑1999 passed in Civil Revision No. 1831 of 1984).

Islamic law‑‑‑

‑‑‑‑Gift‑‑‑Proof‑‑‑Pedigree‑table‑‑‑Plaintiff asserted that her mother was not a limited other of the suit land, rather the land was gifted to her by her husband in lieu of dower‑‑‑To prove the ownership only document produced was pedigree‑table‑‑‑Trial Court decreed the suit whereas, the Appellate Court allowed the appeal‑‑‑High Court dismissed the revision petition filed against the judgment and decree passed by the Appellate Court ‑‑‑Validity‑‑­Neither there was any documentary evidence in support of said plea nor oral evidence in that behalf was confidence‑inspiring‑‑‑Mere entry in the side box of the pedigree‑table would not make the mother of the plaintiff full owner of the estate unless there was other substantial evidence to that effect‑‑­Appellate Court and the High Court after scrutinizing the evidence on record had rightly found the mother of the plaintiff to be 'limited owner and the legacy of the original owner of the estate was properly distributed amongst his legal heirs which warranted no interference by Supreme Court.

Shamim Abbas Bokhari, Advocate Supreme Court and S. Abul Aasim Jaferi, Advocate‑on‑Record for Petitioners.

Qamar Riaz Hussain Basra, Advocate Supreme Court and C.M. Lateef, Advocate‑on‑Record for Respondents.

Date of hearing: 23rd October, 2001.

2002 S C M R 1149

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Mian Muhammad Ajmal, JJ

Mst. BALQISAM JANA and others‑‑‑‑Petitioners

versus

SALEEM ANWAR KHAN and others‑‑‑‑Respondents

Civil Petition No.496‑P of 2000, decided on 6th April, 2002.

(On appeal from the judgment and order of the Peshawar High Court, Circuit Bench, D.I. Khan dated 26‑10‑2000 in W.P. No.128 of 2000).

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.6‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for maintenance‑‑‑Leave to appeal was granted by Supreme Court to examine in detail the relevant law as to whether first wife could refuse to live with her husband and perform marital obligations on account of second marriage of her husband.

Abdul Aziz Kundi, Advocate‑on‑Record for Petitioners.

Respondent in person. ANN

Date of hearing: 6th April, 2001.

2002 S C M R 1150

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

CITY SCHOOLS (PVT.) LTD., LAHORE CANTT.‑‑‑‑Petitioner

versus

PRIVATIZATION COMMISSION, GOVERNMENT OF PAKISTAN and others‑‑‑‑Respondents

Civil Petition No.240 of 2002, decided on 27th March, 2002.

(On appeal from the judgment dated 2‑1‑2002 of Lahore High Court chore passed in Writ Petition No. 1453 of 1999).

(a) Contract Act (IX of 1872)‑‑-

‑‑‑‑Ss.2(h) & 10‑‑‑Contract‑‑‑Tender notice‑‑‑Legal status‑‑‑Tender notice, whether a valid contract enforceable at law‑‑‑Validity‑‑‑Tender notice was merely an invitation for making an offer and not by itself an offer or proposal‑‑‑Advertisement of the notice did not constitute a proposal; it would become promise or agreement only by acceptance of offer or proposal by the person calling for tender‑‑‑When offer of tender was not accepted by the relevant authority, no legal rights accrued to the tenderer ‑‑‑Agreement enforceable by law became a contract‑‑‑Test for deciding whether a valid contract was made between the parties or not was to ascertain if the parties were of one mind on all the material terms at the time it had been finalized and whether they intended that the matter was closed and concluded between them‑‑‑Correspondence between the parties must be looked into for the purpose.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss.2(h) & 10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Contract‑‑­Auction proceedings‑‑‑Petitioner participated in auction proceedings conducted by the Privatization Commission‑‑‑Although the petitioner was the highest bidder yet the auction was not confirmed by the Commission and the property was decided to be re‑auctioned‑‑‑Commission did not re‑auction the property rather en‑cashed the Bank draft tendered by the petitioner as, earnest money‑‑‑Contention of the petitioner was that the tender notice was a valid contract enforceable under law and that property once placed before commission' for auction could not be delisted ‑‑‑Validity‑‑‑True test for deciding the question if in a particular circumstance a contract was made or not was to ascertain whether the parties were of one mind on all material terms and conditions or not‑‑‑Property could be delisted from auction Pool of commission before finalisation of sale process‑‑‑Commission had never agreed to accept the bid offered by the petitioner and the re‑auction proceedings were never held, as such the same was enough to hold that the Commission was not inclined to sell the property‑‑‑Leave to appeal was refused.

Meraj Din v. Noor Muhammad and 3 others 1970 SCMR 542; Munshi Muhammad and another v. Faizanul Haq and another 1971 SCMR 533; Muhammad Sharif v. Sharifuddin and 3 others 1972 SCMR 63; Babu Pervez Qureshi v. Settlement Commissioner, Multan and Bahawalpur Divisions, Multan and 2 others 1974 SCMR 337; Moirnud‑Din v. Negotiating Committee for Disinvestment of AKMIDC Unit, Muzaffarabad and 8 others PLD 1987 (AJ&K) 99; Messrs Javed (Pvt.) Ltd. v. Government. of Pakistan' and another 1991 CLC Note 313 at p. 237; Muhammad Ali v. District Council, Gujrat and another 1993 MLD 1500; Muhammad Din & Sons, Shahdara Mills, Lahore v. The Province of West Pakistan and 5 others PLD 1969 Lah. 823; Ch. Muhammad Yunus v. The Islamic Republic of Pakistan and 3 others PLD 1972 Lah. 847; Calicon (Pvt.) Ltd. v. Federal Government of Pakistan and others 1996 MLD 705; Premier Paper Mills Ltd. v. N.‑W.F.P. Text Book Board 1997 CLC 1288; K.N. Guruswamy v. The State of Mysore and others AIR 1954 SC 592; Haridwar Singh v. Begum Sumbrui and others AIR 1972 SC 1242 and Haji T.M. Hassan Rawther v. Kerala Financial Corporation AIR 1988 SC 157 ref.

Syed Shariffudin Pirzada, Senior Advocate Supreme Court for Petitioner.

Raja Muhammad Akram, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 27th March, 2002.

2002 S C M R 1155

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and ‑ Sardar Muhammad Raza, JJ

HAMEED KHAN alias HAMEEDAI‑‑‑‑Petitioner

versus

ASHRAF SHAH and another‑‑‑‑Respondents

Criminal Petition for Leave to Appeal No.82‑P of 2001, decided on 16th January, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar dated 16‑10‑2001 passed in Criminal Appeal No.37 of 1999).

(a) Penal Code (XLV of 1860)‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑­Presence of accused with fire‑arm at the spot at the relevant time showed that the crime was premeditated and pre‑planned‑‑‑Atrocious crimes sometimes were committed without any notice or for very minor motive, as such adequacy or weakness of the motive or where motive was alleged but not proved, Court was duty bound to scrutinize the prosecution evidence carefully‑‑‑Motive would become immaterial in the presence of trustworthy and reliable ocular evidence as it being a guess of the complainant was only within the exclusive knowledge of the offender‑‑­Prosecution had proved its case by reliable evidence beyond any doubt‑‑‑No mitigating or extenuating circumstance was available on record for reducing the normal penalty of death to lesser punishment of imprisonment for life‑‑­Leave to appeal was refused to accused by Supreme Court in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Absence of motive or failure to prove the motive would not adversely affect the prosecution case if it has been proved by reliable evidence.

M. Zahoorul Haq, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th January, 2002.

2002SCMR1157

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

NASIR MAHMOOD‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Petition No. 22‑L of 2002 , decided on 11th April, 2002.

(On appeal from the judgment dated 28‑11‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 126 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑F.I.R. was not delayed‑‑‑Incident having taken place round about the time of sunset, which could not be said to be the dark hours of the night, identity of accused was not doubtful‑‑‑Prosecution version was fully corroborated by medical evidence as well as by the evidence of recovery of the rifle from the accused which had matched with the crime empty secured from the place of occurrence‑‑‑Eye‑witnesses including the complainant were the natural witnesses of the occurrence who had no animosity against the accused and being the truthful witnesses they could not be disbelieved‑‑‑Motive was fully established on record‑‑‑Incident was premeditated ‑‑‑Co‑accused had been acquitted because role attributed to him in the occurrence was not supported by medical evidence‑‑‑Conviction and sentence of accused recorded by the Court below did not call for any interference‑‑‑Leave to appeal was refused to accused by Supreme Court accordingly.

Asif Mahmood Chughtai, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 11th April, 2002.

2002 S C M R 1161

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq an Abdul Hameed Dogar, JJ

SHAHID RASHID and 4 others‑‑‑Appellants

versus

Mirza MUNAWAR BEG and 7 others‑‑‑Respondents

Civil Appeal No. 1468 of 1995, decided on 30th April, 2002.

(On appeal from the judgment dated 10‑10‑1994 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Writ Petition No.87/R­76/BWP).

(a) Constitution of Pakistan (1973)‑‑‑

‑.‑‑Art.185(3)‑‑‑Management and Disposal of Available Urban Immovable Property Scheme‑‑‑Leave to appeal was granted by Supreme Court to consider whether while determining the area in excess of the entitlement which the allottee should be made to surrender, the allottee should have been allowed a choice or that the area which he had obtained after his entitlement had been exhausted, ought to have been taken away from him.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S.2‑‑‑Management and Disposal of Available Urban Immovable Property Scheme‑‑‑Cancellation of allotment in excess of entitlement‑‑‑Allotment o1 cancelled land under Management and Disposal of Available Urban Immovable Property Scheme‑‑‑Appellant's father was allotted the disputed land in the year 1947 and the same remained in his possession all along‑‑­Three allotments were made in favour of the respondent against his confirmed claims and in the third allotment, the land in possession of the father of the appellant was wrongly allotted to the respondent‑‑‑Contention of the appellant was that the third allotment was in excess of the entitlement of the respondent‑‑‑Validity‑‑‑First two allotments were in accordance with the produce index units and there was no legal objection to the transfer whereas the third transfer was in excess of his entitlement as by that time the respondent had only 21 produce index units left with him but he anyhow managed to have land equivalent to 68 produce index units transferred thus being in excess of 47 produce index units as such it was the last allotment which suffered from legal defect‑‑‑Supreme Court maintained judgment passed by the High Court and directed the respondent to surrender immediately 47 produce index units obtained in excess from his last allotment to which he was not legally entitled‑‑‑Appeal was disposed of accordingly.

Ch. Qamaruddin Meo, Advocate‑on‑Record for Appellants.

Respondents Nos. l. 6 and 8: Ex Parts.

Respondent No.4 in person.

Date of hearing: 22nd March, 2002.

2002 S C M R 1166

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

ALI HUSSAIN ‑‑‑Petitioner

vers s

THE STATE‑‑‑Respondent

Criminal Petition No. 575‑L of 2001, decided on 13th February, 2002.

‑(On appeal from the judgment dated 13‑7‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 794 of 1993).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art,185(3) ‑‑‑ Ocular testimony furnished by natural witnesses was corroborated by medical evidence‑‑‑No background ‑ of enmity existed between the parties‑‑­Complainant had no motive to implicate the accused falsely in the murder case‑‑‑Complainant who was father of the deceased, had charged only the accused and had not thrown the net wide‑‑‑Substitution in the case of a single accused was a rare phenomenon‑‑‑Complainant could not be expected to have charged an innocent person and spared the real murderer of his son‑‑­Leave to appeal was declined to accused by Supreme Court in circumstances.

Syed Zulfqar Ali Bokhari, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑R rd for Petitioner.

Nerno for the State.

Date of hearing: 13th February, 2002.

2002 S C M R 1168

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

GULZAR SHAH.‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.96‑L of 2002, decided on 1st March, 2002.

(On appeal from order dated 7‑1‑2002 of Lahore High Court, Lahore passed in C.M.A. No. 2 of 2001 in Criminal Appeal No. 872 of 2002).

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 426(1)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suspension of sentence‑‑‑High Court while disposing of the application of accused for suspension of his sentence had passed an order that in case the appeal was not fixed within four months, similar application could be repeated‑‑‑Contention was that the sentence of accused was short and after the expiry of four months the unserved period of his sentence would not be more than one month‑‑‑Accused, in circumstances, was directed by Supreme Court to make an application to the Chief Justice of High Court for fixation of the main appeal at an early date‑‑‑Petition was disposed o~ the said observations accordingly.

Ahmad wais, A vocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 1st March, 2002.

2002 SCMR 1169

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

ABDUL RASHID ‑‑‑Petitioner

versus

BASHIR alias BUSHRI and another‑‑‑Respondents

Criminal Petition No. 660‑I, of 2001, decided on 15th February, 2002.

(On appeal from the judgment dated 24‑7‑2001 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No. 163/98 and Murder Reference No. 145/98).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Family honour‑‑­Mitigating circumstance‑‑‑Sentence‑‑‑Petition for leave to appeal was barred by 53 days and no valid ground for condonation was contained in the application moved for the purpose‑‑‑In any event no case for interference in the sentence of accused was made out as the deceased appeared to have played a vital role in the plight of the abductee and the main reason for awarding lesser sentence was based on sound judicial principles‑‑‑Leave to appeal was refused to the complainant by the Supreme Court accordingly.

Rao Naeem Hashim Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 15th February, 2002.

2002 SCMR 1170

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

EHSAN alias QADRI‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No.823‑L of 2001, decided on 5th March, 2002.

(On appeal from the order of the' Lahore High Court, Lahore dated 30‑11‑2001, passed in Cr. A. No. 1332 of 2000).

Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 324‑‑‑Constitution of Pakistan (1973) Art.185(3) ‑‑‑ Statement of the injured complainant who had received the injuries at the hands of the accused was supported by medical evidence‑‑‑Defence had not alleged any malice or ill‑will with the injured complainant so as to implicate the accused falsely in the case‑‑‑Impugned judgment of High Court convicting and sentencing the accused after his acquitted by the Trial Court, was based on proper appreciation of evidence and did not suffer from any misreading or non­reading of evidence or jurisdictional error‑‑‑Leave to appeal was refused to accused by Supreme Court accordingly.

Mansoor‑ur‑Rehman Khan Afridi, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th March, 2002.

2002 S C M R 1173

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

ABDUL JABBAR and others‑‑‑Petitioners

versus

MUHAMMAD~JABBAR and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.1023/L of 2000, decided on 21st February, 2002.

(On appeal from the judgment dated 28‑2‑2000 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.47 of 1995).

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

‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Revision‑‑­Grievance of petitioners against judgment passed in revision petition was that they were condemned unheard‑‑‑Validity‑‑‑Presence of M as counsel of petitioners had been recorded in the impugned judgment‑‑‑No plea had been raised in the petition for leave to appeal to the effect that petitioners had not engaged M as their counsel‑‑‑Omission of said plea in the petition and the other omission of making an application before High Court for re‑hearing of revision petition on said ground was sufficient to hold that they had been represented by M as their counsel, who had been duly heard by High Court before passing impugned judgment‑‑‑Supreme Court repelled the contention on account of being an afterthought.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 31‑‑‑Admission by party to proceedings‑‑‑No one would make any admission against his own interest unless the same was true.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115---Qanun-e-Shahadat (10 of 1984), Art. 31‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration‑‑‑Deceased had two . wives, from first wife, he had three daughters and from second wife, he had one son and two daughters‑‑ Children from second wife of deceased were left out from inheritance mutation, whereas first wife of deceased had no male child, thus, petitioners being children of deceased's brothers were found to inherit the property of deceased as residuaries‑‑‑Respondents being heirs of deceased from his second wife filed suit for declaration that they were entitled to inherit the property in dispute‑‑‑Trial Court decreed the suit after considering the evidence and admission made by first wife that respondents were heirs of deceased from his second wife‑‑‑Appellate Court set aside the decree and dismissed the suit‑‑‑High Court accepted the revision petition and set aside the judgment and decree of Appellate Court for having failed to take into consideration said admission which was a material piece of evidence‑‑­Validity‑‑‑Statement of first wife of deceased had been rightly treated to be true on the principle that no one would make any admission against his own interest unless the same was true‑‑‑Findings recorded by Trial Court and affirmed by High Court through impugned judgment did not suffer from any illegality such as misreading of non‑reading of evidence calling for interference by Supreme Court‑‑‑Petition was dismissed and leave to appeal was refused in circumstances.

Ghulam Nabi Bhatti, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 21st February, 2002.

2002 SCMR 1176

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

COLLECTOR OF CUSTOMS, LAHORE and others‑‑‑Petitioners

versus

TARIQ IQBAL and others‑‑‑Respondents

Civil Petition No. 97‑L of 2002, decided on 11th March, 2002.

(On appeal from the judgment dated 13‑11‑2001 of the Lahore High [court, Lahore passed in Writ Petition No.5323 of 2001).

Customs Act (IV of 1969)‑‑‑

‑‑‑Ss.156(1)(8) & 217‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Relief granted to the respondent by the High Court was not challenged, but only the observations made in the impugned judgment against the concerned officers of the Customs Department were assailed on the ground of having been protected under S.217 of the Customs Act, 1969‑‑‑Merits of the case were not consequently adverted to‑‑‑Supreme Court, however, turned down the observations made in the impugned judgment and Competent Authority was directed to look into the matter and take appropriate action against the concerned Officers, if deemed necessary‑‑‑Leave to appeal was declined to the petitioner with the said observations.

A. Karim Malik, Senior Advocate Supreme Court with Syed Abul`~Aasim Jafri, Advocate‑on‑Record for Petitioners.

Kh. Haris Ahmed, Advocate Supreme Court with Ijaz Ahmed Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 11th March, 2002.

2002SCMR1179

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

GHULAM QASIM KHAN‑‑‑Petitioner

versus

SHAUKAT ABBAS and another‑‑‑Respondents .

Criminal Petition No.530‑L of 2001, decided on 12th March, 2002.

(On appeal from the judgment, dated 11‑7‑2001 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 146 of 1998/BWP).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sentence‑‑­Contention was that High Court after holding that the prosecution had proved its case against the accused had altered his sentence of death to imprisonment for life without any justification as there was no mitigating circumstance for alteration of sentence‑‑‑Leave to appeal was granted by Supreme Court to the complainant to consider the quantum of sentence of accused with the direction that he would not ,be released from jail till the decision of the appeal.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 12th March, 2002.

2002SCMR1180

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ABDUL SATTAR‑‑‑Petitioner

versus

Mst. JAMILA BIBI and 9 others‑‑‑Respondents

Civil Petition No. 562‑L of 1999, decided on 12th March, 2002

(On appeal from the , order, dated 22‑2‑1999 of the Lahore High Court, Lahore, passed in Civil Revision No.251 of 1997).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss.12(2) & 115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Failure of respondent to adduce evidence in support of his application under S.12(2), C.P.C.‑‑‑Trial Court dismissed the application, but Appellate Court accepted the appeal by remanding case to Trial Court with direction to allow one opportunity to respondent for adducing evidence‑‑‑Revision petition filed by petitioners against remand order was dismissed by High Court ‑‑‑Validity‑‑­Record showed that witnesses of respondents had been present on several occasions, but due to non‑availability of the file of previous suit, their statements could not be recorded‑‑‑Impugned order did not suffer from any legal infirmity so as to warrant interference by Supreme Court‑‑­Petition was dismissed and leave to appeal was refused in circumstances.

Muhammad Khan, Advocate Supreme Court with Syed Abul Asim Jafri, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 12th March, 2002.

2002 SCMR 1181

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah. JJ

AZIZ ULLAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.623‑L of 2001, decided on 5th March, 2002

(On appeal from the judgment dated 20‑7‑2001.of the Lahore High Court, Lahore passed in Criminal Appeal No, 257 of 2001).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.320 & 279‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Order of the Courts below directing the accused to pay Diyat‑‑‑Validity‑‑‑Accused was directed to pay Diyat in accordance with law‑‑‑Complainant party had no enmity to involve the accused falsely in the case‑‑‑Accused admittedly was driving the vehicle and his own contention was that the deceased was negligently driving which was not supported by any evidence on record‑‑‑Leave to appeal was consequently refused to accused by Supreme Court‑‑‑Accused, however, was directed to pay Diyat within a period of three years in 36 equal monthly instalments.

Khalid Aseer Chaudhry, Advocate Supreme Court and Ch. Talib Hussain, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 5th March, 2002.

2002 S C M R 1183

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil-ul-Rehman Ramday, JJ

ALLAH DAWAYA and others---Petitioners

versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Petition No.556-L of 1999, decided on 8th March, 2002.

(On appeal from the order dated 28-1-1999 of the Lahore High Court, Lahore, passed in Writ Petition No.7931 of 1996).

Muslim Family Laws Ordinance (VIII of 1961)---

----S.4---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973),Art. 185(3)---Succession---Res judicata, principle of--- Applicability---Petitioners being children of daughter of deceased filed suit claiming 1/2 share out of the estate of deceased---Respondents resisted the suit including plea of res judicata---Trial Court decreed the suit observing that petitioners in previous suit had challenged validity of gift in favour of respondents, whereas in present suit, petitioners had claimed legal share out of inheritance of deceased, thus, cause of action in both the suits was different---Appellate Court set aside the judgment and decree and dismissed the suit as barred by res judicata---Validity---Judgment passed by Trial Court in previous suit that questions of gift as well as claim of petitioners with regard to inheritance of deceased had been agitated and duly determined by finding them not entitled to any share out of inheritance of deceased--­Such judgment and decree having not been challenged had attained finality. thus, present suit was squarely hit by principle of res judicata and as such impugned judgment did not warrant interference---Supreme Court dismissed the petition and refused to grant leave to appeal.

Zahid Hussain Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th March, 2002.

2002 SCMR 1185

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J. Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

GHULAM MUHAMMAD ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.209‑L of 2001, decided on 5th March, 2002.

(On appeal from the judgment, dated 13‑3‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal Nb.99 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art .185(3)‑‑‑Accused had fired with a lethal weapon and thus had the knowledge that his act was so imminently dangerous that it must in all probability cause death‑‑‑Offence committed by accused, therefore, fell under S.302(b), P.P.C.‑‑‑Contention that the accused had committed the act under sudden and grave provocation was not supported by any evidence on record as the allegation that his daughter‑in‑law alongwith her mother was sitting in objectionable condition with her paramour had not been believed‑‑‑Prosecution had proved its case through reliable evidence and both the Courts below had rightly found the accused guilty of offence and rightly convicted and suitably sentenced him‑‑­Leave to appeal was refused to accused accordingly.

M. Akram Awan, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 4th March, 2002.

2002 SCMR 1188

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

GUL MUHAMMAD GONDAL‑‑‑Petitioner

versus

MUHAMMAD NAWAZ and others‑‑‑Respondents

Criminal Petition No.434‑L of 2001, decided on 11th February, 2002.

(On appeal from the judgment, dated 1‑6‑2001 of the Lahore High court, Lahore passed in Criminal Appeal No.792 of 1997).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(c)/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑­H'_gh Court had taken lenient vin the matter of sentence for the reasons that bout the accused were of tender age being 14/15 years old-‑Peculiar facts and circumstances of the case also squired determination of the question of sentence within the purview of section 302(c). C.P_C. in a lenient manner‑‑‑Leave to appeal was refused by Supreme Court to the complainant in circumstances.

Arshad Mehmood, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th February, 2002.

2002 S C MR 1189

[Supreme Court.of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

NASIR and another‑‑‑Petitioners

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Petition No.210‑L of 2001, decided on 25th February, 2002.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 14‑3‑2001 passed in Criminal Appeal No.27 of 2001).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Petition for leave to appeal was barred by time by seven days‑‑­No sufficient ground had been disclosed for condonation of delay‑‑‑View taken by High Court that the petitioners had no locus standi or right to file appeal against acquittal of accused, was not shown to be legally incorrect‑‑­Petition was consequently dismissed both on merits and also being barred by time‑‑‑Leave to appeal was refused accordingly.

Masood Akhtar, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 25th February, 2002

2002 S C M R 1190

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

Haji FAZAL DIN‑‑‑Petitioner

versus

AKHLAQ AHMED and others‑‑‑Respondents

Criminal Petition No.282‑L of 2001, decided on 7th February, 2002.

(On appeal from the judgment, dated 16‑4‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1022 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Complainant's counsel, did not press the petition against the acquittal of accused and rightly so because the grounds of his acquittal advanced by High Court did not appear to be perverse, fanciful and speculative‑‑‑Petition for leave to appeal was dismissed having not been pressed.

Seerat Hussain Naqvi, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th February, 2002.

2002 SCMR 1191

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

FAIZ AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.589‑L of 2001, decided on 8th March, 2002.

(On appeal from the judgment, dated 19‑7‑2001 passed by 'the Lahore High Court, Lahore in Criminal Appeal No.742 of 1996 and Murder Reference No.216 of 1996).

Penal Code (XLV of 1869)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑F.I.R. had been lodged without loss of time within 30 minutes of the occurrence giving active role of the accused of having caused dagger blows on the chest and thigh of the deceased, which was supported by trustworthy ocular testimony and medical evidence ‑‑‑Co‑accused had been acquitted of the charge of murder on benefit of doubt as injuries attributed to him were not supported by medical evidence‑‑‑Courts below had properly considered the evidence and rightly awarded death sentence to accused for the brutal murder caused by him‑‑­High Court had dismissed the appeal of accused on cogent reasons‑‑‑No matter of general public importance was involved in the case as contemplated under Article 185(3) of the Constitution‑‑‑Leave to appeal was refused by Supreme Court to accused in circumstances.

Sardar Faiz Muhammad Khosa, Advocate Supreme Court with Ch. Talib Hussain, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 8th March, 2002.

2002 SCMR 1194

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

MUHAMMAD AFZAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Bail Petitions Nos. 143 and 179 of 1999, decided on 5th September, 2001.

(On appeal from the judgment of the Lahore High Court, dated 1‑4‑1999 passed in Criminal Appeals Nos. 13‑J and 15‑J of 1993).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Contention that the accused had been convicted and sentenced to death on the basis of vague, sketchy and partisan evidence which should have been disbelieved and moreso, that the defence version was never kept in juxtaposition with that of prosecution a evidence which had caused a serious prejudice and on this score alone the impugned judgment was liable to be set aside‑‑‑Reappraisal of entire evidence was considered to be in the interest of justice to examine the said contention thoroughly and further to ascertain as to whether the High Court had followed the principles of safe administration of justice in criminal cases‑‑‑Leave to appeal' was granted to accused by the Supreme Court accordingly.

Ata Muhammad v. The State 1995 SCMR 599 and Siraj Din v. Kala PLD 1964 SC 26 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 5th September, 2001.

2002 SCMR 1196

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C.J. and . Faqir Muhammad Khokhar, J

ALLAH DITTA and another‑‑‑Petitioners

versus

MUHAMMAD ASLAM‑‑‑Respondent

Civil Petition No.61‑L of 1999, decided on 14th February, 2002.

(On appeal from the judgment, dated 17‑11‑1998 of the Lahore High Court passed in C.R. No.2082 of 1997).

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O.XXXIX, Rr.l & 2‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Temporary injunction, grant of‑‑‑Suit for declaration and permanent injunction‑‑‑Dismissal of application for temporary injunction to restrain respondent to use exclusively internal passage leading to Chah situated in disputed land‑‑‑Validity‑‑‑Petitioners in the plaint had not claimed to be owners of disputed land or its adjacent land‑‑‑Petitioners had not alleged that respondent was not the owner of disputed land or had no right to approach said Chah from said internal passage, which they wanted to use exclusively‑‑‑Said Chah according to Revenue Record existed at the spot, which in view of assertions made in the plaint had been abandoned long time ago‑‑‑Petitioners had failed to establish prima facie case for issuance of temporary injunction‑‑‑No case had been made out for interference in well‑reasoned discretionary order passed by Courts below‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal in circumstances.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.

Abdul Wahid Ch., Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Respondent in person.

2002 S C M R 1198

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

ARSHAD ALI HASHIMI ‑‑‑ Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 Others‑‑‑Respondents

Civil Petition No.709‑L of 2002, decided on 8th March, 2002.

(On appeal from the judgment dated 6‑2‑2002before Lahore High Court passed in Writ Petition No. 17177 of 1999).

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

‑‑‑‑S.15‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.27‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional petition before High Court‑‑‑Appeal against ejectment order‑‑‑Additional evidence‑‑‑Appellate Authority on petitioner‑tenant's application under O.XLI, R.27, C.P.C., allowed him to produce additional evidence, but he could not produce the same in spite of having availed several opportunities, thus, further adjournment was refused to him‑‑‑Petitioner then filed Constitutional petition. which was dismissed by High Court‑‑‑Validity‑‑‑Order allowing additional evidence had not been challenged by anyone, thus. Supreme Court considered it inappropriate to go into question of desirability or validity of order allowing said opportunity at a. fairly late stage‑‑‑Petitioner bad been allowed permission three years ago, but even after lapse of such period he was not possessed of certified copies, which he had wished to produce as additional evidence‑‑‑Conduct of petitioner was evident from such fact, thus, possibility of having initiated such exercise only to prolong ejectment proceedings could not be ruled out‑‑‑No exception could be taken to impugned orders‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal.

Abdul Aziz Qureshi, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th March, 2002.

2002 S C M R 1200

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

ABDUL REHMAN SHAH‑ ‑‑Petitioner

versus

Khawaja MUHAMMAD SULEMAN and others‑‑‑Respondents

Civil Petition No. 302‑L of 1999, decided on 25th February, 2002.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 21‑12‑1998 passed in Civil Revision No.26 of 1997).

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.185(3)‑‑‑Petition for leave to appeal, withdrawal of‑‑‑Petitioner did not press the petition and prayed that he be allowed to have the right to file suit for partition as he had purchased' land from same joint Khata from same vendor, and thus, had stepped into shoes of his vendor as joint owner‑‑­Supreme Court dismissed the petition as withdrawn while observing that petitioner might avail the remedy of filing suit for partition, if available under the law even in the presence of impugned judgment, which, if filed, would be tried and decided on its own merits.

Mian Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioner.

Nerno for Respondents.

Date of hearing: 25th February, 2002.

2002 S C M R 1201

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

GHULAM HUSSAIN ‑‑‑Petitioner

versus

MUHAMMAD NAWAZ and 2 others‑‑‑Respondents

Criminal Petition No.565‑L of 2001, decided on 12th March, 2002.

(On appeal from the judgment dated 26‑7‑2001 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.295 of 1999 and Murder Reference No.353 of 1999).

Penal Code (XLV of 1866)‑‑‑

‑‑‑S.302(c)/34‑‑‑Constitution of Pakistan (1973). Art.185(3)‑‑‑Sentence, reduction of‑‑‑Impugned judgment passed by High Court reducing the sentence of each accused from death to 14 years R.I. was based on sound and cogent reasons and did not suffer from any misreading or non‑reading of evidence, jurisdictional error or misconstruction of law‑‑‑No question of general public importance as contemplated under Art. 185(3) of the Constitution was involved in the case‑‑‑Leave to appeal was declined to the complainant by the Supreme Court accordingly.

Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 12th March, 2002.

2002 S C M R 1205

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday JJ.

GHULAM ALI and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.103‑L of 2001, decided on 6th February, 2002.

(On appeal from the judgment dated 11‑1‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos.344 of 1996, 351 of 1996 and Murder Reference No. 173 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑F.I.R. had been recorded with promptitude with specific roles attributing to the accused‑‑‑Ocular account had been furnished by both the injured witnesses who were natural witnesses and their presence at the place of incident could not be doubted as the occurrence had taken place in front of the main gate of the house of the complainant‑‑‑Unimpeachable ocular testimony was supported by medical evidence, recovery of incriminating weapon from the accused and motive‑‑‑Leave to appeal was refused to accused by Supreme Court in circumstances.

Malik Saeed Hassan, Senior Advocate Supreme Court with Ch Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for the State

Date of hearing: 6th February, 2002.

2002 S C M R 1208 .

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, .Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

GHULAM HUSSAIN ‑‑‑‑Petitioner

versus

AHMAD YAR and others‑‑‑‑Respondents

Criminal Petition No.300‑L of 2000, decided 25th February, 2002.

(On appeal from the judgment, dated 11‑2‑2000 passed by the Lahore High Court, Lahore in Criminal Appeal No.568 of 1997).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302, 337‑A(ii), 337‑A‑(i), 337‑F(i) & 337‑F(v)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑High Court in appeal while maintaining the convictions of the accused had reduced their sentences to the terms of imprisonment already undergone by them‑‑‑Direction issued by the Trial Court in respect of payment of compensation, Arsh and Daman was set aside as the accused apparently had acted in self‑defence‑‑ ‑High Court after having thoroughly and carefully examined each and every aspect of the case and the evidence on record, had reached the said cancellation which was in accordance with the principles laid down by the superior Courts for appraisal of evidence and safe administration of criminal justice‑‑‑Impugned judgment was not shown to have been based on misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was declined to the complainant by the Supreme Court in circumstances.

Asghar Khan Rokhri, Advocate Supreme Court with Mahmudul Islam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th February, 2002.

2002SCMR1211

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

FAZAL MUHAMMAD and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.61‑L of 2002, decided on 14th February, 2002.

(On appeal from the judgment, dated 21‑12‑2001 of the Lahore High Court, Multan, passed in Criminal Miscellaneous Nos.l and 2 in Criminal Appeal No. 1757 of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), Ss.419/420/468/471‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suspension of sentence‑‑‑Arguments raised on behalf of the accused went to the root of .the case which could only be appreciated at the time of hearing of the appeal by the High Court when the entire evidence adduced by the parties would be thrashed out‑‑ ‑Order passed by High Court dismissing the application for suspension of the sentence of accused did not suffer from any illegality‑‑‑Leave to appeal was refused to accused by the Supreme Court in circumstances.

Abdul Hafeez Cheema, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 14th February, 2002.

2002 SCMR 1213

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

MUHAMMAD MUSHTAQ HUSSAIN SHAH‑‑‑Petitioner

versus

MUHAMMAD NAWAZ and another‑‑‑Respondents

Criminal Petition No.246‑L of 2001, decided on l1th February, 2002

(On appeal from the judgment dated 28‑3‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.828 of 1995 and Murder Reference No.7 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sentence‑‑= High Court had altered the sentence of death awarded to accused by Trial Court to imprisonment for life on correct premises‑‑‑Contention raised on behalf of complainant for enhancement of sentence of each accused to death lacked substance‑‑‑Leave to appeal was refused to c6mplainant by Supreme Court accordingly.

Ahmed Hussain Bokhari, Advocate Supreme Court and Sh. Masood tar, Advocate‑on‑Record for Petitioner.

Nemo:for Respondents, Date of hearing: 11th February, 2002.

2002 S C M R 1214

[Supreme Court of Pakistan] .

Present: Qazi'Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD FAROOQ ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 700(L) of 2001, decided on 6th February, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 2‑10‑2001 passed in Criminal Petition No.450 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sentence‑‑­Accused had not seen his female relative in compromising position with the suspected man and his only having seen them together in the 'Bazar' could be no cause for any grave and sudden provocation, because it was only his impression that they were returning after committing Zina with each other‑‑­Courts below had already shown leniency to the accused in the matter of sentence‑‑‑Leave to appeal was refused to accused by Supreme Court in circumstances.

Ali Ahmed Malik, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 6th February, 2002.

2002 S C M R 1217

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

IMRAN TAJAMAL KHAN‑‑‑Petitioner

versus

MUMTAZ AHMED alias KAKA and others‑‑‑Respondents

Criminal Petition No.460‑L of 2001, decided on 13th February, 2002.

(On appeal from the judgment dated 23‑5‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.411 of 1996 and Murder. Reference No.64 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑‑High Court had taken a lenient view in the matter of sentence because the murder was preceded by a quarrel between the parties and firing was made by the accused during the process of grappling between him and the deceased‑‑­Sentence of death of accused had rightly been altered to imprisonment for life by the High Court‑‑‑Leave to appeal was declined to the complainant by the Supreme Court in circumstances.

Tanvir Ahmed, Advocate-on‑Record for Petitioner, Nemo for Respondents.

Date of hearing: 13th February, 2002.

2002 S C M R 1218

[Supreme Court of Pakistan]

Present: Sheikh Riaz Ahmed, C.J., Nazim Hussain Siddiqui, Qazi Muhammad Farooq, Rana Bhagwandas and Mian Muhammad Ajmal, JJ .

SHIREEN RAZA and others‑‑‑Petitioners.

versus

FEDERATION OF PAKISTAN through Secretary Education, Ministry of Education, Islamabad and others‑‑‑Respondents.

Civil Review Petitions Nos.386 and 423 of 2001, decided on 16th April. 2002.

(On appeal from judgment of this Court dated 22‑3‑2001 passed in Civil Appeal 758 of 1998 and others).

Constitution of Pakistan (1973)‑

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Educational institution‑‑‑Admission to Medical Colleges in the Province of Punjab‑‑‑Supreme Court, by allowing partial review of its judgment in Attiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 held that students of Northern Areas and Azad Kashmir having neither been arrayed as parties to the proceedings before the High Court in the case under review nor any of them having appealed against the judgment of the High Court before Supreme Court, condition of receiving pre‑medical education in such areas attached to reserved seats as per judgment under review shall not apply to the students of Azad Kashmir and Northern Areas‑‑‑Time limit fixed in respect of students of foreign origin on reciprocal basis would also be unnecessary as it was a common practice throughout the world to admit students of foreign origin on reciprocal basis, which, apart from extending mutual cooperation and cohesion between the countries, also add to the revenue of the State‑‑‑Condition of time limit, therefore, would` not apply in the case of students of foreign countries for their admission on reciprocal basis to the Medical Colleges.

Mst. Attiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 partially reviewed.

K.M.A. Samdani, Advocate Supreme Court and M.S, Khattak, Advocate‑on‑Record for Petitioners (in Civil Review Petition No.386 of 2001).

Makhdoom Ali Khan, Attorney‑General for Pakistan for Respondent/Federation (in Civil Review Petition No.386 of 2001).

Sardar M. Siddique Khan, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners (in Civil Review Petition No.423 of 2001).

Ch. Afrasiab Khan, Advocate Supreme Court for Respondents (in Civil Review Petition No.423 of 2001).

Date of hearing: 16th April, 2002.

2002 S C M R 1220

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Messrs SOHAIL TEXTILE MILLS LIMITED through

Mian Najeeb Usman, Director---Petitioner

versus

WATER AND POWER DEVELOPMENT AUTHORITY through superintending Engineer, Electricity WAPDA, Shiekhupura --- Respondent.

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

----S.115---Constitution of Pakistan (1973), Art. 185(3)---Revision=-­Limitation---Condonation of delay---Leave to appeal was granted by the Supreme Court to consider the contention that the revision petition was badly barred by limitation but the delay was condoned for reasons devoid of substance and concurrent findings of fact recorded by the two Courts below were set aside by the High Court without highlighting instances of misreading and non-reading of evidence.

(b) Electricity Act (IX of 1910)---

----S. 39---Constitution of Pakistan (1973), Art.185(3)---Slowness of electric meter---Leave to appeal was granted by the Supreme Court to consider the contention of the consumer that High Court had not only overlooked the admission of Executive Engineer that he had checked the meter through a Revolving Selector Switch and had not sent the same to the laboratory for testing but also the statement of Electric Inspector, a witness, that it was not possible to judge the slowness of meter through a Revolving Selector Switch.

Sardar Muhammad Siddique, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Muhammad Akram Khokhar, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 4th February, 2002.

2002 S C M R 1222

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

NAZAR MUHAMMAD ‑‑‑Petitioner

versus

MUHAMMAD NAWAZ and others‑‑Respondents

Civil Petition N6.2839‑L of 2001, decided on 5th March, 2002.

(On appeal from the judgment dated 22‑5‑2001 of Lahore High Court, Lahore passed in R.S.A. No.96 of 1985).

Punjab Pre‑emption Act (I of 1913)‑-‑

‑‑‑‑Ss.4 & 21‑‑‑Limitation Act (IX of 1908), S.12 & Art.152‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Petitioners‑vendees contended that appeal filed by respondents/pre‑emptors before Appellate Court was time‑barred, because respondents applied for certified copy at place which according to record was not returned to them, and when they applied to Copying Agency at place G, the appeal had become barred by time, and the respondents' plea that Copying Agency of H had sent their application for grant of certified copy directly to Copying Agency at G was contrary to record; and that the case was clearly of partial pre‑emption as not only certain Khasra numbers had been omitted, but in the prayer instead of Rs.8,000 fixed in registered sale‑deed as sale price, the plea had been taken that decree be passed for Rs.4,000 Supreme Court granted leave to appeal to consider, said contentions raised in the light of case‑law reported as PLD 1973 Pesh. 115 and PLD 1973 SC 444.

Samar Qand and another v. Muhammad Yunis PLD.1972 Pesh. 115 and Ghulam Muhammad and 3 others v. Khushi Muhammad and another PLD 1973 SC 444 ref.

S.M. Masud, Advocate Supreme Court with Muhammad Aslam Ch. Advocate‑on‑Record for Petitioner.

Maqbool' Sadiq, Advocate Supreme Court with Mahmudul Islam, Advocate‑on‑Record for Respondents.

Date of hearing: 5th March, 2002.

2002 S C M R 1225

[Supreme Court of Pakistan].

Present: Javed Iqbal, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ .

ZIA ULLAH---Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORIST COURT, FAISALABAD and 7 others---Respondents

Civil Petition No.3430-L of 2001, decided on 22nd March, 2002.

(On appeal from the order, dated 22-10-2001 of the Lahore High Court, Lahore, passed in W. P. No. 18526 of 2001).

(a) Administration of justice---

---- Expeditious disposal of case---Affected parties trying their best to create numerous hurdles under the garb of law to get the., same delayed---Such practice deprecated.

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

----S.6 [as substituted by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)) & S.23---Penal Code (XLV of 1860), Ss.302/324/148/149--­Constitution of Pakistan (1973), Arts. 185(3.) & 199---Constitutional petition before High Court---Transfer of case to regular Court---Murder of Advocate in Court vicinity and injuring Assistant Sub-Inspector of Police with fire­arms---Special Court rejected transfer application of accused, but High Court accepted their Constitutional petition and withdrew the case from Special Court and transferred the same to Sessions Judge---Validity---Alleged murder of Advocate in Court vicinity, who was in his robe, had been committed in a wanton, reckless and brutal manner, and one Assistant Sub-Inspector of Police had been injured by means of the fire-arms---Deceased Advocate was on his way to Court to conduct trial of a murder case, while Assistant Sub­-Inspector of Police was going to get his statement recorded in a criminal case---Occurrence was the result of indiscriminate firing causing sensation and wave of panic, which amounted to sense of insecurity not only amongst a section of public, but community of Advocates as well---Gravity of the offence could not be diminished or minimized merely on the ground that alleged occurrence had not taken place exactly within the Court premises--­Examination of provisions of S.6(i)(b), (2)(a)(m)(n) would render irresistible conclusion that alleged occurrence fell within the ambit of S.6 of Anti­-Terrorism Act, 1997---Invocation of Constitutional jurisdiction by filing Constitutional petition by accused after recording of statements of six witnesses in the case demonstrated propensity to get the trial prolonged for reasons best known to them---Contents of F.I.R. had neither been read properly nor understood in its true perspective, which had resulted in serious miscarriage of justice on the one hand and had protracted the trial on the other without any fault of the affected party---Impugned order could not be termed as speaking one, but was perfunctory having been passed in a cursory manner by ignoring the objects and reasons for the enactment of Anti-­Terrorism Act. 1997---High Court had not taken into consideration previous orders passed in this regard by High Court, which had resulted in confusion and serious miscarriage of justice---Supreme Court converted the petition into appeal and accepted the same and set aside the impugned order.

Abdul Karim v. State 1999 MLD 3236 and Bashir Ahmad v. Naveed Iqbal PLD 2001 SC 521 ref.

Khan Muhammad Vehniwal, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Chaudhry Afrasiab Khan, Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record for Respondents Nos.3 to 8.

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

Date of hearing: 22nd March, 2002.

2002 S C M R 1229

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

HAJAN KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 140 of 1998, decided on 29th March, 2002.

(On appeal from the judgment dated 17‑11‑1997 of the High Court of Balochistan, Quetta, passed in Criminal Appeal No.277 of 1997)..

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to accused to consider the question whether the retracted confession was supported by any independent and reliable circumstantial evidence to provide sound. justification for holding him guilty of capital offence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)-‑‑Appraisal of evidence‑‑‑Prosecution case rested solely on the circumstantial evidence coupled with confessional statement of the accused and recovery of incriminating weapon from him‑‑‑Recovery of crime weapon was not of much help to the prosecution as report of the Forensic Science Expert was in the negative‑‑‑Confessional statement of accused had been recorded after 13 days of his arrest i.e., on the last day of his remand‑‑­Neither the complainant nor his sister‑in‑law whose name was mentioned in the F.I.R. had appeared at the trial to support prosecution case‑‑­Complainant, according to the F.I.R., had only suspected the accused but he never appeared in the witnesses-box to substantiate his stance‑‑‑Retracted confessional statement of accused‑was not in line with the medical evidence and was not supported by any other independent and reliable piece of evidence‑‑‑Accused was acquitted in circumstances.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for the State.

Date of hearing: 29th March, 2002.

2002 S C M R 1232.

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C.J., Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

ABDUL KHALID and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.407 of 2000, decided on 13th March, 2002.

(On appeal from the judgment of Lahore High Court, Lahore dated 3‑8‑2000 passed in Criminal Appeal No.287 of 1992 and Murder Reference No. 162 of 1992).

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S..367‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to the accused to examine whether the impugned judgment did not qualify on the touchstone of S.367, Cr.P.C. as the evidence led in defence consisting of two injured witnesses was not considered and defence plea was not appreciated in its correct perspective.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑High Court, no doubt, had omitted to discuss the defence evidence, but in fact there was no defence plea except bare denial without any explanation‑‑‑Ocular evidence furnished by eye­witnesses whose presence at the site had been established did not suffer from any inherent defect or material lacuna‑‑‑Mere relationship of the witness with the deceased, per se, would not render him an interested or partisan witness‑‑‑Other eye‑witness, .however, was an independent and disinterested witness having no animus against the accused‑‑‑Accused had a strong motive for the murders of the deceased‑‑‑Recovery of crime weapons and medical evidence had further corroborated the ocular testimony‑‑‑Case of acquitted co‑accused was distinguishable and not at par with that of the present accused‑‑‑Defence evidence was not only interested but an afterthought and hired one‑‑‑No tangible and concrete evidence was available on record to indicate a free fight at the site between the parties‑‑‑Accused had acted in a callous and brutal manner which did not justify mitigation of sentence‑‑‑Record did not show any exceptional circumstance for taking a lenient view and for award of lesser penalty‑‑‑Appeal was dismissed accordingly.

(c) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Credibility‑‑‑Intrinsic worth and value of evidence is always relevant for determining the reliability of a witness in a case rather than quantity of witnesses.

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

Malik Ainul Haq, Advocate Supreme Court for Respondent.

Date of hearing: 13th March, 2002.

2002 S C M R 1239

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

ABDUL RAZZAQUE‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No. l ‑Q of 20.02, decided on 25th February, 2002.

(On appeal from the judgment dated 20‑12‑2001 passed by the High Court of Balochistan, Quetta, in Criminal Appeal No. 198 of 2001).

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

‑‑‑‑S.423‑‑‑Powers of Appellate Court in disposing of appeal‑‑‑Plea of reduction in sentence does not constitute a bar for the Appellate Court from interfering where the findings rendered by the Trial Court are based on erroneous or speculative presumptions or non‑reading or misreading of evidence, violation settled judicial principles concerning administration of justice and reviewing the entire case to draw, its own conclusion.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑High Court had not decided the appeal on merits after having gone through the record of the case and critical evaluation of the entire evidence‑‑‑Merely because the counsel for the appellant had not pressed the appeal on merits but only on the question of sentence, High Court was not relieved of its duty to examine the evidence on the record in order to find out whether there was ample evidence against the accused to convict him for the offence for which he had been charged‑‑‑Leave to appeal was granted by the Supreme Court to the accused, in circumstances, for reappraisal of evidence so that the case could be decided on merits.

Abdul Siddique v. The State 1971 SCMR 625; Ramzan v. The State PLD 1967 SC 545; The Queen v. Roop Gowalla 15 W.R. 41, Parmeshur Lal v. Mst. Rukrniit and another AIR 1925 Oudh 305; Emperor v. Sursing Mathuradas P Cr.LJ 939; King‑Emperor v. Dahu Raut AIR 1935 PC 89; Khalil and others v. The Crown PLD 1953 SC 133; Muhammad Ashiq Faqir v. The State PLD 1970 SC 177; Rabari Ghela Jadav v. State of Bombay AIR 1960 SC 748 and Muhammad Siddique v. The State NLR 1995 Criminal 559 ref.

Ehsan‑ul‑Haq. Khan, Advocate Supreme Court and Melita W.N. Kohli, Advocate‑on‑Record (absent) for Petitioner.

Haji Akhtar Zaman, Additional Advocate‑General, Balochistan for the State.

Date of hearing: 25th February, 2002.

2002 S C M R 1243

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMMAD FAROOQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No.46 of 2001, decided on 22nd March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 16‑3‑1999, passed in Criminal Appeal No.321 of 1992).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302, 364‑A & 507‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Appraisal of evidence‑‑‑Extra judicial confession made by accused was corroborated by his confession made before the Magistrate and the letters produced in the Court‑‑‑Prosecution witnesses who. had apprehended the accused and the complainant had no enmity for false implication of accused in the case of such a heinous crime‑‑‑Both the said confessions made by the accused were in total conformity with the prosecution story and surrounding circumstances‑‑‑Impugned judgment was well‑reasoned and based on law laid down by Supreme Court‑‑‑No misreading or non‑reading of evidence or misconstruction of law was made in the case‑‑‑Jail petition was barred by 742 days for which no plausible explanation had been given for condonation of delay‑‑‑Petition was dismissed on merits as well as on the point of limitation in circumstances.

Joygun Bibi v.. The State PLD 1960 SC (Pak.) 313; Wazir Khan v. The State 1989 SCMR 446 and The State v. Minhun alias Gul Hassan PLD 1964 SC 813 ref.

Arshad Ali Ch., Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd March, 2002.

2002 S C M R 1247

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Sardar Muhammad Raza Khan, JJ

AMJAD JAVED---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 47-L of 2002, decided on 8th March, 2002.

(On appeal from the judgment dated 27-12-2001 of the Lahore High Court passed in Cr. A. 988 of 2002 and M.R. No. 451-T/2000).

(a) Penal Code (XL V of 1860)---

----Ss. 302 & 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(ii)--­Qanun-e-Shahadat (10 of 1984), Art. 3---Constitution of Pakistan (1973), Art. 185(3)---Child eye-witness aged 5/1-2 years used to- accompany his deceased sister aged 10 years to the house of accused being their tutor and as such the question of his absence from the place of occurrence did not arise who had communicated the information of the incident to his father (complainant)---Trial Court had recorded the statement of the said child witness after having found him intelligent enough to portrait the facts of the event---Statement of the said witness was consistent, worthy of credence, straightforward and confidence-inspiring having the ring of truth and innocence, on the basis of which conviction could safely be recorded and which had been corroborated by circumstantial evidence, medical evidence, recovery, of blood-stained hatchet duly supported by the report of the Serologist and the extra judicial confession made by accused which was also supported by other credible evidence---Accused was also seen running from the place of occurrence by the prosecution witnesses who had no animus or malice whatsoever against him---Absence of motive could hardly affect the overwhelming incriminating evidence led by the prosecution---Courts below having not clarified as to under which clause of S.302, P.P.C. the conviction was awarded and as the same could not be . awarded under S.302(a), P.P.C. without undertaking "Tazkiyah-al-Shahood"---Supreme Court . substituted S.302, P.P.C. to S.302(b), P.P.C. while maintaining the death sentence of accused, as a young girl had been murdered in a barbaric, callous and merciless manner---Leave to appeal was refused accordingly.

Muhammad Ajmal v. The State 1997 SCMR 1595; Sarfraz Khan v The State 1996 SCMR 188 and Mumtaz Ahmad v. The State PLD 1990 FSC 38 ref.

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

----S. 302(a)---Punishment with death as Qisas---Tazkiyah-al-Shahood--­Tazkiyah-al-Shahood may be undertaken at the end of the evidence at least in criminal cases and it can be done even at the appellate stage or by remanding case if the facts and circumstances of the case so warrant---If a party to the case assails the credibility of a witness for Tazkiyah-al-Shahood is necessary in every case, otherwise it is a must only, in Hudood and Qisas cases whether any party objects or not.

Mumtaz Ahmad v. The St a 1991 PSC 450 FSC ref.

Rab Nawaz Khan Ntazi,~Advocate Supreme Court Aasim Jafri, Advocate-on-Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 8th March, 2002.

2002 S C M R 1251

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Faqir Muhammad Khokhar, JJ

MUHAMMAD HAFEEZ ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No. 179 of 2000, decided on 6th March, 2002.

(On appeal from the judgment dated 31‑8‑2000 of Lahore High Court, Lahore passed in Crl. Appeal No. 17‑J of 1995 and M.R. No. 15 of 1995).

Penal Code X~LV of 1860)‑‑

‑‑‑‑Ss.302, 302(b) & 324‑‑‑Constitution of Pakistan (1973) Art.185(3)‑‑­Trial Court as well as High Court both had sifted the evidence in accordance with the established judicial norms believing the complainant and the prosecution witnesses from which no miscarriage of justice had resulted‑‑‑To believe or disbelieve a witness was primarily the function of Trial Court and First Appellate Court and Supreme Court invariably did not interfere with the discretion exercised by High Court ‑‑‑ Impugned judgment did not warrant any interference‑‑‑None of the Courts below had specified the clause of S.302, P.P.C. under which the accused was convicted‑‑‑Evidence revealed that the accused had been awarded death penalty not as Qiasa but as Tazir‑‑­Accused, thus, was specified to have been convicted under S.302(b), P.P.C.‑‑‑Murder being a pre‑planned and brutal one and no extenuating circumstance being available in favour of accused for lesser punishment his death sentence was upheld in circumstances‑‑‑Leave to appeal was refused to accused accordingly.

M. Javed Aziz Sindhu, Advocate Supreme Court for Petitioner.

Nemo for Respondent:

Date of hearing: 6th March, 2002.

2002 S C M R 1255

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MUHAMMAD SHARIF‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.51 of 2000, decided on 28th March, 2002.

(On appeal from the judgment, dated 19‑10‑1998 of the Lahore High Court, Multan, passed in Criminal Appeal No.39 of 1994 and Murder Reference No.59 of 1994).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence ‑‑‑F.I.R. had been promptly lodged specifying role of the accused in the occurrence and mentioning the names of eye‑witnesses‑‑‑Presence of eye‑witnesses at the place of incident had been established through trustworthy and unimpeachable evidence and their deposition could not be discarded simply on the ground of their names having not been mentioned in Column No.4 of the inquest report which only pertained to the names of the persons who had identified the dead body‑‑­Witnesses had clearly deposed that the accused by giving 2/3 strokes of hatchet on the neck of the deceased had removed his head‑‑­Version of the complainant was fully corroborated by the other prosecution witness‑‑‑Recovery of the hatchet at the behest of accused stood fully established on record which was found to be stained with human blood‑‑‑Occurrence having taken place on a Highway which was not surrounded by residential houses, no independent witness could be produced by the prosecution‑‑‑Medical evidence was completely in line with the ocular version which was also supported by the recovery of incriminating weapon‑‑‑Conviction and sentence of accused were maintained in circumstances.

Malik Saeed Hassan, Senior Advocate Supreme Court for Appellant.

Arshad Ali Chaudhry, Advocate Supreme Court for the State.

2002 S C M R 1260

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Faqir Muhammad Khokhar, JJ

ALLAH BUKHSH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No.87 of 2000, decided on 4th March, 2002.ON"

(On appeal from the judgment dated 17‑2‑2000 of Lahore High Court passed in Cril. A. No. 176/1997 and M.R. No. 138 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Presence of eye­witnesses at the scene of offence had been proved beyond any shadow of doubt who had no reason to falsely implicate the accused‑‑‑Ocular testimony was corroborated by medical evidence‑‑‑No misreading or non‑reading of evidence was found in the case which had been appreciated by the Courts below according to the established judicial norms laid down by the superior Courts‑‑‑Murders had been committed in a planned and brutal manner justifying death sentence‑‑‑Leave to appeal was refused to accused by the Supreme Court in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973). Art.185(3)‑‑‑Appreciation of evidence‑‑‑Interference by Supreme Court‑‑‑Scope‑‑‑Supreme Court ordinarily does not interfere with appreciation of evidence done by High Court, particularly when Trial Court and High Court have recorded . concurrent findings and no law point is raised which could provide a ground to reverse the findings recorded by the Courts below‑‑‑Supreme Court would not review the evidence simply for the reason that another view was possible if evidence had been evaluated from a different angle‑‑‑Primary function of Trial Court and High Court to sift the evidence in its true perspective‑‑­Interference by Supreme Court in concurrent findings of two Courts below relating to appraisal of evidence is exceptional, which of course can be resorted when it is manifested that appraisal of evidence was misdirected and had ultimately resulted into miscarriage of justice.

Sh. Mehmood Ahmed, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 4th March, 2002.

2002 S C M R 1264

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

MUHAMMAD LATIF and others‑‑‑Petitioners

versus

Mian AHMED ALI and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.746‑L of 2001, decided on 14th February, 2002.

(On appeal from the judgment, dated 10‑10‑2001 of the Lahore High Court, Multan, passed in Criminal Appeal No.930 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/467/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Special Judge Anti­Corruption had initially issued process against the accused after going through enquiry report as well as preliminary evidence brought on record, but subsequently on an application moved under S.249‑A, Cr.P.C. by some of the accused quashed the proceedings against them‑‑‑Order of the Trial Court in acquitting the accused was scanty and had been passed in a slipshod manner without providing opportunity to the prosecution to lead evidence... High Court in such circumstances had committed no illegality in accepting the appeal of the respondents and remanding the case to the Trial Court for re‑trial against the accused‑‑‑Leave to appeal was consequently declined to the accused by the Supreme Court.

Dr. A. Basit, Advocate Supreme Court for Petitioners.

Saleem Sehgal, Advocate Supreme Court with Tanvir Ahmed for Respondent No. 1.

Date of hearing: 14th February, 2002.

2002 S C M R 1266

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C.J. and Faqir Muhammad Khokhar, J

MUHAMMAD TUFAIL‑‑‑Petitioner

versus

SHAHID PERVEZ‑‑‑Respondent

Civil Petition No.3367‑L of 2001, decided on 13th February, 2002

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12‑9‑2001 passed in C. R. No. 1086 of 2001).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.12 & 9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Specific performance of oral agreement to sell‑‑‑Concurrent findings of fact by the Courts below‑‑‑Plaintiff was initially tenant in the suit property, eviction proceedings went up to Supreme Court and the .eviction order attained finality‑‑‑Possession was handed over to the defendant in execution of decree passed by Rent Controller, but plaintiff illegally dispossessed the defendant, against which suit under S.9 of the Specific Relief Act, 1877, was filed by the defendant which was decreed in his favour and execution proceedings were pending‑‑‑Plaintiff during the pendency of execution proceedings filed the suit on the basis of oral agreement to sell‑‑‑Trial Court dismissed the suit and the judgment and decree was maintained by Appellate Court as well as by High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Courts below had not ignored any material piece of evidence produced by the plaintiff‑.‑Courts had appreciated the evidence and it was ejected as the same could not be believed for the reason that after contesting litigation for such a long time and getting possession of the property, it was improbable that the defendant would enter into the agreement of sale‑‑‑Oral evidence of the plaintiff had been disbelieved on cogent reasons that in such a situation, no man of ordinary prudence would agree to sell the property to the plaintiff and the plaintiff as a man of ordinary prudence would not under mere oral agreement of sale pay earnest money in such circumstances as the parties were neither having cordial relations nor they were enjoying confidence of each other so that the transaction of sale could be struck through oral agreement of sale and payment made without any document ‑‑‑Evidence had been appreciated and considered in' accordance with the principles of appraisal of evidence‑‑‑Findings recorded by the Courts below did not suffer from any illegality such as misreading or non‑reading of any material piece of evidence‑‑‑Supreme Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Leave to appeal was refused.

Rao Munawar Khan, Advocate Supreme Court and S.Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for Respondent

Date of hearing: 13th February, 2002

2002 S C M R 1269

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

TAUSEEF CORPORATION (PVT.) LTD. ‑‑‑Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY and others‑‑‑Respondents

Civil Petition No.3914‑L of 2001, decided on 6th March, 2002.

(On appeal from the order dated 12‑10‑2001 of Lahore High Court Lahore, passed in F.A.O. No.296 of 2001).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 56 & 54‑‑‑Arbitration Act (X of 1940), S.20‑‑‑Civil Procedure Code (V of 1908). O.XXXIX, Rr.l & 2‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Interim injunction, grant of ‑‑‑Necessary ingredients‑‑‑Loss measurable in terms of money‑‑‑Contract for construction of parking plaza was awarded to the plaintiff‑company‑‑‑Company was required Io complete the construction with its own funds and in lieu thereof would claim ownership of certain areas specified in the contract‑‑‑Authorities terminated the contract and construction raised by the plaintiff was demolished‑‑­Authorities got the plaza designed by another company and construction was completed by the Authorities at a heavy cost‑‑-Plaintiff initially invoked Constitutional jurisdiction of High Court for enforcement of the contract but the same was dismissed‑‑‑Later on suit for specific performance of the agreement was filed but the Trial Court rejected the plaint‑‑‑Lastly application under S.20 of the Arbitration Act, 1940, was filed by the plaintiff‑‑‑All the Courts below declined grant of interim injunction to the plaintiff‑‑‑Validity‑‑‑In view of the changed scenario the plaintiff did not have a prima facie case for the purpose of interim relief‑‑‑Balance of convenience also did not tilt in favour of the plaintiff as possession of the construction made by the plaintiff and the site was taken by the Authorities long ago and the process of leasing out the newly‑constructed parking plaza had already commenced‑‑‑Loss allegedly suffered by the plaintiff was measurable in terms of money‑‑‑Supreme Court declined to grant interim injunction‑‑‑Leave to appeal was refused.

Mian Allah Nawaz, Advocate Supreme Court with Muhammad Islam, Advocate‑on‑Record for Petitioner

Advocate Supreme Court, Muhammad Rashid Ahmed, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on­Record for Respondent No.2.

Date of hearing: 6th March, 2002.

2002 S C M R 1272

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

MUHAMMAD KHALID and another‑‑‑Petitioners ., .

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.739-L of 2001, decided on 12th February, 2002.

(On appeal from the judgment dated 31‑10‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal N .774 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 337‑A(ii) & 337‑A(iii)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Occurrence was admitted by the parties‑‑‑Plea taken by the defence was baseless and did not fit in the circumstances of the case ‑‑‑Eye­witnesses were natural witnesses of the occurrence‑‑‑Complainant had no earthly reason to implicate the accused for the murder of his son leaving the actual culprits ‑‑‑Complainant and the two injured witnesses had stated in their statements in unequivocal terms that it was the accused who had fired with the rifle at the deceased‑‑‑Ocular testimony was fully corroborated by medical evidence‑‑‑Leave to appeal vas refused to accused by Supreme Court in circumstances.

Syed Mazahir Abbas Naqvi, Advocate Supreme Court for Petitioners.

Munir Ahmed Bhatti, Advocate Supreme Court for the Complainant.

Date of hearing: 12th February, 2002.

2002 S C M R 1275

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD BOOTA‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Civil Petition No.3633‑L of 2001, decided on 2nd April, 2002.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 9‑10‑2001 passed in W.P. No. 1490 of 2000).

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Muslim Family Laws Ordinance (VIII of 1961); S.7‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Claim for maintenance of wife and minor children‑‑‑Divorce‑‑‑Proof‑‑‑Husband alleged that he had divorced the wife and one of the minors was not his son‑‑‑Family Court decided the issue of divorce in favour of the husband and maintenance to the wife and the son was refused‑‑‑Appellate Court reversed the findings of the Family Court qua divorce and found the wife and the son entitled to maintenance‑‑­Judgment and decree passed by the Appellate Court was upheld by High Court in exercise of Constitutional jurisdiction‑‑‑Only evidence produced by the husband to prove the factum of divorce was divorce deed and Divorce Certificate issued by Union Council‑‑‑Validity‑‑‑No independent evidence was produced on record that the husband in fact sent divorce to the wife, as the same was required under the Muslim Family Laws Ordinance, 1961, and thereafter gave intimation to the Union Council‑‑‑Findings of the facts recorded by the Appellate Court and maintained by the High Court did not suffer from any legal infirmity such as misreading or non‑reading of any material piece of evidence‑‑‑Supreme Court declined to interfere with the judgment passed by High Court and leave to appeal was refused.

Muhammad Ashraf Mohandra, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2002.

2002 SCMR 1278

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

MUHAMMAD SIDDIQUE‑‑‑Petitioner

versus

GENERAL MANAGER, PAKISTAN RAILWAYS and ‑‑‑Respondents

Civil Petition No. 1981‑L of 2000, decided on 18th April, 2002.

(On appeal from the judgment dated 7‑6‑2000 of the Federal Service Tribunal, Lahore, passed in Appeal No.445‑L of 1998).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Removal from service‑‑‑Grievance notice‑‑­Delay of six years in sending such notice and filing appeal before Labour Court‑‑‑Appeal before the Service Tribunal was also barred by time as S.2‑A, came into existence in the Service Tribunals Act, 1973, on 10‑6‑1997‑‑‑Appeal before Service Tribunal was dismissed being time‑barred‑‑‑Validity‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal and leave to appeal was refused.

Rana Maqbool Ahmed Khan, Advocate‑on‑Record for Petition

Nemo for Respondents.

Date of hearing: 18th April, 2002.

2002 S C M R 1279

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMMAD WASEEM NAWAZ alias CHHINA LOOLA‑‑‑Petition

versus

THE STATE‑‑‑Respondent

Criminal Petition No.814‑L of 2001, decided on 5th March, 2002.

(On appeal from the order, dated 3‑12‑2001 of the Lahore High Court in Criminal Miscellaneous No.6541‑B of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Allegation against accused was that he being a member of an unlawful assembly armed with lethal weapons had fired from motorcar, as a consequence whereof, one passerby was injured‑‑‑No reasonable grounds, prima faice, existed to believe the accused being innocent in the case‑‑‑Record showed that accused was a desperate criminal and there were series of murders between parties‑‑‑Discretion exercised by High Court in refusing bail to accused was not open to any exception and interference by Supreme Court‑‑‑Leave to appeal was declined to accused accordingly.

Irfan Qadir, Advocate Supreme Court for Petitioner.

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

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for the Complainant.

Date of hearing: 5th March, 2002.

2002 S C M R 1280

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHAFI‑‑‑Petitioner

versus

ADDITIONAL DISTRICT & SESSIONS JUDGE and others‑‑‑Respondents

Civil Petition No.4126‑L of 2001, decided on 27th February, 2002

(On appeal from the judgment dated 1‑11‑2001 of the Lahore High Court, Lahore passed in Writ Petition No. 13513 of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.145‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Attachment of property‑‑‑Inquiry into last possession over the property ‑‑‑Pendency of civil suit before Civil Court‑‑‑Criminal Court attached the disputed property on the apprehension of breach of peace‑‑‑Appellate Court remanded the case to the Criminal Court for determination of the last possession over the disputed property two months prior to the institution of the proceedings under S.145, Cr.P.C.‑‑‑High Court, in exercise of Constitutional jurisdiction maintained the order passed by the Appellate Court‑‑‑Contention of the petitioner was that the Appellate Court could not remand the case to the Criminal Court as the matter was pending before Civil Court‑‑‑Validity‑‑‑No order of temporary injunction had been passed in favour of the petitioner to secure his possession‑‑‑Observation of the High Court that mere pendency of civil suit regarding property in dispute would not be sufficient to oust the jurisdiction of the Criminal Court in circumstances did not suffer from any illegality‑‑­Appellate Court had rightly pointed out that the Criminal Court was concerned with the position‑ as to the possession within two months of the commencement of the proceedings under S.145, Cr.P.C. which point having not been decided by the Criminal Court the remand of the case for that purpose did not suffer from any illegality‑‑‑Supreme Court declined to interfere with the order passed by High Court‑‑‑Leave to appeal was refused.

Malik Abdul Wahid, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2002

2002 S C M R 1282

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ

ANWAR FAROOQ SADOZAI, RESEARCH OFFICER, NATIONAL EDUCATION AND TRAINING COMMISSION, (NOW PMLC), ISLAMABAD‑‑‑Appellant

versus

CHAIRMAN, NATIONAL EDUCATION AND TRAINING COMMISSION, ISLAMABAD and 2 others‑‑‑Respondents

Civil Appeal No.79 of 1997, decided on 15th June, 2001.

(On appeal from judgment dated 31‑10‑1996 passed by the Federal Service Tribunal, Islamabad in Appeal No. 14‑P of 1993).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑­Reappointment in service‑‑‑Petitioner and respondent were appointed in a project which was disbanded and for the new project senior most four, persons were to be appointed‑‑‑Contentions of the petitioner were that no seniority list was issued by the Competent Authority at the time of disbandment of the project and, therefore, the order of appointment of respondent was based on erroneous assumption of facts and that in any case, the petitioner was senior to the respondent before disbandment of the project that with the disbandment of the project, the petitioner was appointed afresh on merits as Research Officer with back benefits of his previous service, in view of his experience on a high post and length of service and that appointment was lawfully made by the Competent Authority and, therefore, respondent had neither locus standi to challenge the appointment nor he had acquired any vested right to hold the office of Research Officer in place of the petitioner‑‑‑Leave to appeal was granted by Supreme Court to consider such contentions of the petitioner.

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

‑‑‑‑S.4‑‑‑Seniority‑‑‑Re‑appointment in service‑‑‑Disbandment of previous project and appointment in new project‑‑‑New appointment was made on the basis of seniority list prepared during the previous project‑‑‑Dispute was with regard to the seniority of the parties‑‑‑Respondent was at Serial No. 17 and the appellant was at Serial No.20 of the seniority position and the recommendations of the Selection Committee were approved according to the Notification fixing their inter se seniority‑‑‑Appellant was appointed by the Authorities despite the fact that the respondent was senior in the list‑‑­Respondent filed appeal before Service Tribunal which was allowed and respondent was appointed in .place of the petitioner‑‑‑Validity‑‑‑Service Tribunal was right, in allowing the appeal of the respondent as he was at Serial No.17 of the seniority list prepared while the appellant was at No.20 of the list‑‑‑Appellant had not denied determination of inter se seniority of the employees on 23‑7‑1985 and the same was not objected to by him at any time between the years 1985 and 1992‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal and appeal was dismissed.

Federation of Pakistan and others v. Rais Khan 1993 SCMR 609 distinguished.

Ziaul Haq and others v. Secretary, Ministry of Education, Islamabad and others 1991 SCMR 1632; Federation of Pakistan through Secretary, Establishment, Islamabad and another v. B.A. Tabassum and 11 others 1995 SCMR 1229 and Abdul Hanud Khan v. Secretary, Establishment Division and others 1994 SCMR 543 ref.

Bashir Ahmed Ansari, Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Salahuddin Khan, Deputy Attorney‑Generals Punjab. on Court's Notice).

Nemo for Respondents Nos. l and 2.

Shah Abdur Rashid, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondent No. 3.

Date of hearing: 15th June, 2001.

2002 S C M R 1289

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

MUHAMMAD ANWAR ‑‑‑Petitioner

versus.

THE STATE‑‑‑‑Respondent

Criminal Petition No. 804‑L of 2001, decided on 14th February, 2002.

(On appeal from the judgment dated 22‑10‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.899 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S 302(b)‑‑‑Constitution of Pakistan (1973), Art;185(3) ‑‑‑ Contentions were that identification of accused in the night time occurrence in moonlight and torch light was questionable particularly when the torch‑mentioned in the F.I.R. was not taken into possession by the police; that the ocular evidence furnished by interested and inimical witnesses who were closely related to the deceased lacked corroboration; that the role attributed to the accused was at par with that of his acquitted co‑accused and that the evidence on record was not appreciated in consonance with the principles laid down by Supreme Court for appraisal of evidence in criminal cases‑‑‑Leave to appeal was granted to accused by the Supreme Court to consider such contentions.

Imran Ahmed Malik, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 14th February, 2002.

2002 S C M. R 1290

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MUHAMMAD RAFIQUE‑‑‑Petitioner

versus

SAIMA RAFIQUE (Minor) and 2 others‑‑‑Respondents

Civil Petition No.2647‑L of 2001, decided on 16th April, 2002.

(On appeal from the order dated 12‑6‑2001 of the Lahore High Court, Lahore, in Writ Petition No. 18643 of 2000).

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑-Constitution of Pakistan (1973), Art. 185(3)‑‑­Maintenance allowance‑‑‑Concurrent findings of fact by .the Courts below‑‑­Courts below had fixed Rs.1,000 per month as maintenance allowance of the minor from the date of the institution of the suit‑‑‑Validity‑‑‑Such amount being reasonable and justified‑‑‑Supreme Court declined to interfere with the concurrent findings of fact and law‑‑‑Order passed by the Courts ,below was maintained by Supreme Court and leave to appeal wasrefused.

Ch. Ali Muhammad, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 16th April, 2002.

2002 S C M R 1291

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

BASHIR AHMAD and another‑‑‑Petitioners

versus

MUHAMMAD RAFIQ‑‑‑Respondent

Civil Petition for Leave to Appeal No. 3979/L of 2001, decided 17th April, 2002.

(On appeal from the order dated 3‑12‑2001 of the Lahore High Court, Lahore, passed in Civil Revision No. 5 of 2001).

Islamic Law‑

‑‑‑‑ Gift‑‑‑Proof‑‑‑Plaintiff assailed mutation of gift in civil suit‑‑‑Trial Court dismissed the suit while the Appellate Court allowed the appeal and decreed the suit‑‑‑Judgment and decree passed by the Appellate Court were maintained by High Court as revision petition filed by the defendant was dismissed‑‑‑Defendant failed to prove the factum of gift; since no date, time venue and person in whose presence, it was made, had been established‑‑­Only witness of the mutation i.e. Lumbardar, who also identified the vendor, was not produced rather the witness appearing from the plaintiffs side had contradicted the mutation by saying that the vendor was unable to comprehend about the nature of transaction‑‑‑Validity‑‑‑Nothing was available on the record that possession was delivered at the time, when the gift was made; no specific change in possession in pursuance of the gift was trade‑‑‑Defendant failed to point out any legal infirmity in the order warranting interference by Supreme Court‑‑‑Judgment and decree passed by High Court was maintained and leave to appeal was refused.

Ch. Sardar Ali, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 17th April, 2002.

2002 S C M R 1293

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Malik SHAMA‑UD‑DIN‑‑‑Petitioner

versus

MUHAMMAD FAYYAZ and 2 others‑‑‑Respondents

Criminal Petition No.255‑L of 2001, decided on 12th March, 2002.

(On appeal from the judgment, dated 10‑4‑2001 of the Lahore High Court, Lahore passed in Criminal Revision No.397 of 1995).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Accused had not assailed his conviction and sentence before Supreme Court as he on dismissal of his appeal by the High Court had absconded‑‑‑Counsel for the accused was allowed to withdraw the petition for the time being with the permission to file fresh petition as and when the accused would surrender or file the petition challenging his conviction and sentence‑‑‑Petition was dismissed as withdrawn in circumstances.

Mian Aftab Farrukh, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 12th March, 2002.

2002 S C M R 1294

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. CJ. and Faqir Muliammad Khokhar, J

NOOR MUHAMMAD‑‑‑Petitioner

versus

Mst. WALAYAT KHATOON and others‑‑‑Respondents

Civil Petition No.392‑L of 1999, decided on 13th February, 2002.

(On appeal from the judgment dated 14‑1‑1999 of the Lahore High Court passed in C.R. No. 1976 of 1998).

Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 4 ‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Constitution of Pakistan (1973), Art. 185(3),‑‑Easement of necessity‑‑‑Perpetual injunction, grant of‑‑‑Concurrent findings of fact by the Court below‑‑‑Plaintiff filed a suit seeking injunction to restrain the defendant from closing the passage which was being used by him‑‑‑Plaintiff claimed that it was a common passage whereas the defendant alleged that the passage was his exclusive property‑‑­Trial Court decreed the suit and the judgment and decree was maintained by the Appellate Court as well as by High Court‑‑‑Contention of the defendant was that the plaintiff before succeeding in the suit had to establish that they had prescriptive right of easement‑‑‑Validity‑‑‑Finding of fact had been recorded that the passage was not part of the property of the defendant and the same was being used as passage by the plaintiff and was the only source of approach to his house, therefore, case of easement of necessity had been established‑‑‑Findings recorded by the Court below did not suffer from any legal infirmity‑‑‑Supreme Court declined to interfere with the judgment and decrees passed by the Courts below‑‑‑Leave to appeal was refused.

M. Nisar Arshad Kotla, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th February, 2002.

2002 S C M R 1296

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

MUHAMMAD FAROOQ‑‑‑Petitioner

versus

GOVERNMENT OF PUNAJB and another‑‑‑Respondents

Civil Petition No.88‑L of 2002, decided on 18th April, 2002.

(On appeal from the judgment dated 11‑3‑2001 of the Punjab Service Tribunal, Lahore passed in Service Appeal No. 1067 of 1993).

Punjab Service Tribunals Act (IX of 1974)

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Ad hoc appointment‑‑‑Termination of service‑‑‑Discrimination‑‑‑Although civil servant was appointed on ad hoc basis yet he continued in service and had completed about 13 years without any break‑‑‑Civil servant was terminated from service and his departmental appeal as well as appeal before the Service Tribunal were futile‑‑‑Contention of the civil servant was that he had been discriminated against others who though in the same category were regularized‑‑‑Leave to appeal was granted by Supreme Court to consider such contention of the civil servant.

Muhammad Abbas v. Executive Engineer and others C.P. No.570‑L of 1998 fol.

Abdul Wahid Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents

Date of hearing: 18th April, 2002.

2002 S C M R 1298

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C.J. and Faqir Muhammad Khokhar, J

SARDAR‑‑‑Petitioner

versus

ISLAMIA COLLEGE OLD BOYS COOPERATIVE HOUSING SOCIETY LIMITED‑‑‑Respondent

Civil Petition No. 1619‑L of 1998, decided on 15th February, 2002.

(On appeal from the judgment dated 17‑9‑1998 of the Lahore High Court passed in_C.R. No. 1469 of 1998).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Interim injunction, grant of‑‑­Purchase of land out of joint Khata without its partition‑‑‑Suit for permanent injunction was filed to restrain the defendant from interfering in. the possession of the plaintiff‑‑‑Courts below declined to grant interim injunction in favour of the plaintiff as the defendant had purchased the suit‑land from joint owner out of joint property‑‑‑Validity‑‑‑All the Courts below had found that the defendant had purchased land from one of the joint owners of the Khata, and had stepped into the shoes of the joint owners and could maintain its right in the land‑‑‑Findings recorded by the Courts below on application for temporary injunction which were tentative in nature were in accordance with the principles governing the temporary injunction ‑‑‑‑‑Supreme Court declined to interfere in the discretionary matter decided by the Courts in accordance with law‑‑‑Leave to appeal .was refused.

Jehangir A. Jhoja, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo foR Respondent.

Date of hearing: 15th February, 2002,

2002 S C M R 1299

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, C.J. and Tanvir Ahmed Khan. J

MUHAMMAD ASGHAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.581‑L of 2001, decided on 24th January, 2002.

(On appeal from the order, dated 2‑8‑2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.4154‑B of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Accused, after successive investigations, had been declared innocent by the police and was placed in Column No.2 of the Challan‑‑‑Only allegation against the accused was that he drove the car through which the accused party reached the spot and opened murderous attack‑‑‑Accused was in the Jail for the last about 14 months‑‑‑Accused was admitted to bail in circumstances.

S.M. Masud, Advocate Supreme Court with Mahmudul Islam, Advocate‑on‑Record for Petitioner.

Miss Salma Malik, A.A.‑G. Punjab for the State.

Ch. M. Abdus Saleem, Senior Advocate Supreme Court with Ch. Muhammad Aslam, Advocate‑on‑Record for the Complainant.

Date of hearing: 24th January, 2002.

2042 S C M R 1301

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

NOOR MUHAMMAD ‑‑‑Petitioner

versus

NAZAR MUHAMMAD ‑‑‑Respondent

Civil Petition No. 557‑L of 1999, decided on 6th March, 2002.

(On appeal from the order dated 25‑2‑1999 of the Lahore High Court, Lahore, passed in Civil Revision No. 248‑D/99).

Evidence Act (I of 1872)‑‑‑‑

‑‑‑‑S. 68‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.79‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Execution of document‑‑‑Proof‑‑‑Concurrent findings of fact by the Courts below‑‑‑Dispute was with regard to the execution of sale‑deed‑‑‑Petitioners denied execution of the sale‑deed in favour of respondent‑‑‑All the Courts below had concurrently decided the matter in favour of the respondent‑‑‑Contention of the petitioner was that the document had not been proved in accordance with provisions of Art.79 of the Qanun‑e­Shahdat, 1984, and the judgments of the Courts below were an outcome of misreading of evidence‑‑‑Validity‑‑‑Sale‑deed in question was executed prior to the promulgation of the Qanun‑e‑Shahadat, 1984, therefore, its execution was to be proved in the light of the provisions of S.68 of the erstwhile Evidence Act, 1872, and not under Art.79 of the Qanun‑e‑Shahadat, 1984‑‑­Execution of the sale‑deed was proved in the light of the statement of one of the marginal witnesses and the testimony of the witness was not vulnerable to any .criticism and its effect could not be offset by the ipse dixit of the petitioner‑‑‑No misreading or non‑reading of evidence had been found in the judgments passed by the Courts below‑‑‑Supreme Court declined to interfere with the judgments passed by the Courts below‑‑‑Leave to appeal was refused.

Muhammad , Nisar Arshad Kotla, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 12th March, 2002.

2002 S C M R 1303

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

RAHIM JAN‑‑‑Petitioner

versus

SECURITIES EXCHANGE COMMISSION OF PAKISTAN and others‑‑‑Respondents

Civil Petition o. 3978‑L of 2001, decided on 27th February, 2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 29‑10‑2001 passed in Commercial Appeal No. 2 of 2001).

Securities and Exchange Commission of Pakistan Act, (XLII of 1997)‑‑‑

‑‑‑‑S. 34‑‑‑Limitation Act (IX of 1908), Ss.5 & 29‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal before High Court ‑‑‑Condonation of delay‑‑‑Failure to file appeal within limitation provided under S.34 of the Securities and Exchange Commission of Pakistan Act, 1997‑‑‑Petitioner, instead of tiling appeal within sixty days against order of the Commission, preferred Constitutional petition before the High Court which was withdrawn and the appeal was filed‑‑‑High Court dismissed the appeal being time‑barred‑‑­Validity‑‑‑Petitioner had the knowledge of the date having been fixed by the Commission in the case and even if he was not able to appear on the date fixed, nothing was said in the application for condonation of delay as to what prevented him from filing the appeal within period of limitation before the High Court‑‑‑View taken by the High Court in the judgment that the appeal was barred by time did not suffer from any legal infirmity and Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

Irfan Qadir, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioner.

Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

2002 S C M R 1304

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MUHAMMAD SULEMAN---Petitioner

versus

RIASAT ALI and another---Respondents

Criminal Petition No.41-L of 2002, decided on 15th April, 2002.

(On appeal from the order, dated 14-12-2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.7498-B of 2001).

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

----Ss.497(2)(5)---Penal Code (XLV of 1860), S.395---Constitution of Pakistan (1973), Art. 185(3)---Bail, cancellation of---Failure to hold identification parade---Accused not nominated in F.I.R.---Effect---Non­holding of identification parade after arrest of the accused person had brought his case within the purview of S.497(2), Cr.P.C. and he was rightly granted bail by High Court---Principles. regarding cancellation of bail being different from that of grant of bail---Supreme Court declined to cancel the bail---Leave to appeal was refused.

Ch. Ali Muhammad, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 15th April, 2002.

2002 S C M R 1306

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Ch. NASEER AHMAD‑‑‑Petitioner

versus

REHAM DAD and others‑‑‑Respondents

Civil Petition No.636 ‑L of 2002, decided on 8th March, 2001.

.

(On appeal from the judgment dated 28‑1‑2002 of the Lahore High Court, Lahore passed in Civil Revision No. 1898 of 1995).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XL, R.1‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appointment of receiver‑‑‑Allegation of wasting and damage to property‑‑‑No such allegation was levelled in the plaint against the petitioner who was only receiving rent of the suit property and the respondents were denied their share‑‑‑Contention of the petitioner was that instead of appointment of receiver, direction could be issued to the petitioner to deposit rent already received by him as well as the current rent in the Court and there was no need to appoint a receiver for the purpose‑‑‑Supreme Court issued notice to the respondents in circumstances.

Benoy Krishna v. Satish Chandra AIR 1928 PC 49 ref.

Malik Muhammad Qayyum, Advocate Supreme Court and Tanvir Ahmad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents, Date of hearing. 5th March, 2002

2002 S C M R 1308

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

MUHAMMAD YOUNIS---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.612-L of 2000, decided on 18th March, 2002.

(On appeal from the judgment/order dated 17-10-2000 passed by Lahore High Court Lahore in Cr.A.297/94 and M. R. No. 133 of 1994).

Penal Code (XLV of 1860)---

----Ss. 302/34, 309 & 311---Criminal Procedure Code (V of 1898), S.544-A---Conviction under Tazir after compounding of offence---Conduct of accused---Enhancement of compensation---First case registered against the accused was regarding abduction of daughter of the deceased---Accused after release on bail again tried to abduct the daughter of the deceased and then injured wife of the deceased---Two more cases were registered, against the accused---Deceased was pursuing the cases against the accused and had refused to effect compromise in the cases with the accused---Accused on refusal of the deceased, committed his murder---Trial Court awarded death sentence to the accused and High Court maintained the same---During the proceedings before Supreme Court, legal heirs of the deceased compromised the matter out of the Court and they waived their right of Diyat---State did not have any objection to the compromise but contended that the offence was committed in a shocking manner, therefore, jurisdiction was required to be exercised under S.311, P.P.C.---Validity---Supreme Court after verification accepted the compromise effected between the legal heirs of the deceased and the accused---Supreme Court, in exercise of jurisdiction under S.311, P.P.C. keeping in view the facts and circumstances of the case and manner in which the offence was committed by the accused, convicted the accused and sentenced him to 14 years of imprisonment---Compensation to the legal heirs, under S.544-A, Cr.P.C. was enhanced from Rs.70,000 to Rs.2,50,000---Supreme Court directed that the amount of compensation would be recovered from the accused before his release-- -Conviction awarded by the Trial Court and confirmed by the High Court was also modified---Petition for leave to appeal was converted into appeal and same was disposed of accordingly.

M.A. Zafar, Advocate Supreme Court for Petitioner.

Maqbool Elahi Malik, Advocate-General, Punjab for the State:

Date of hearing: 18th March, 2002.

2002 S C M R 1311

[Supreme Court of Pakistan]

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

FATIMAGIRLSHIGH SCHOOL---Appellant.

versus

GOVERNMENT OF THE PUNJAB through Member, Board of Revenue (Settlement), Lahoreand 2 others---Respondents

Civil Appeal No. 1383 of 1995, decided on 8th May, 2002.

(On appeal from judgment dated 25-5-1991 passed by the Lahore High Court, Lahore in W.P. No. 932-R/1997).

Privately Managed Schools' and Colleges (Taking Over) Regulation, 1972 [M.L.R. 118])---

----Para. 5---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10---Constitution of Pakistan (1973y, Art. 185(3)--­Settlement Scheme No.l, Para. 20-- Compensation pool---Disposal of evacuee property---Powers of Chief Settlement Commissioner---School was being run in the disputed property by the predecessor of the appellants--­Application of allotment of the property in the name of appellants was pending when Martial Law Regulation No.118 was promulgated---School was nationalized under para. 5 of the Martial Law Regulation No. 118 and the management of the school was taken over by the Education Department of the Government---Settlement Authorities replaced the name of the original management with that of the Education Department and the property was allotted in the name of the Department instead of the appellants---Such allotment was assailed by the appellants- before High Court in exercise of Constitutional jurisdiction which was dismissed by the High Court--­Contention of the appellants was that since all formalities regarding allotment were complete, the property should have been transferred in the name of the appellants and not in the name of the Department---Validity---Central Government/the Chief Settlement Commissioner was authorised under S.10 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, to dispose of the property out of compensation pool---Chief Settlement Commissioner or any other officer authorized by him was empowered to transfer/dispose of any property out of compensation pool on evaluation basis or by sale or by means of auction or otherwise in accordance with the Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958---High Court with sound and cogent reasons had dealt with all aspects of the case---Judgment passed by 'the High Court neither suffered from any flaw or legal infirmity nor there was any question of public importance as contemplated under Art.185(3) of the Constitution---Supreme Court declined to interfere with the judgment passed by High Court---Appeal was dismissed.

Board of Foreign Missions v. Government of Punjab 1987 SCMR 1197; Muhammad Bashir v. Anjuman Himayat-i-Islam PLD 1988 SC 96 and Mst. Khadua v. K.M.C. through Mayor 1983 CLC 535 distinguished.

S. M. Masud, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record (absent) for Appellants.

M. Zaman Bhatti, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondents.

Date of hearing: 8th May, 2002.

2002 S C M R 1315

[Supreme Court of Pakistan]

Present: Iffikhar Muhammad Chaudhry and Javed lqbal, JJ

Mst. ZEBA---Petitioner

versus

ABDUL ALI --- Respondent

Civil Petition No. 13-Q of 2002, decided on 10th May, 2002.

(On appeal from the judgment/order dated 3-1-2002 passed by High Court of Balochistan, Quetta in Constitutional Petition 775/99 and 356/2000).

(a) Islamic Law-

Divorce---Pronouncement---Shia sect---Contention of the petitioner was that according to Shia School of Thought, the husband had not pronounced Talaq in Arabic language (ﻪﻐﻴﺼ) in presence of two witnesses--­Validity---Leave to appeal was granted by Supreme Court to consider the contention of the petitioner---Constitution of Pakistan (1973), Art.185(3).

(ﻞﻋﺎﺳﻤﻠﺍ ﺢﻳﻀﻮﺗ) p.377, para. 2517; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousaf PLD 1963 SC 51 and Mirza Qamar Raza v. Mst. Tahira Begum and 14 others PLD 1988 Kar. 169 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Arts. 199 & 185,--­Constitutional jurisdiction of High Court---Interference in finding of fact--­Family Court decided the issue of divorce against the husband but High Court in exercise of Constitutional jurisdiction reversed the finding of fact--­Contention of the wife was that findings of fact were intervened by High Court in its Constitutional jurisdiction very rarely unless it was established that the Trial Court had recorded the perverse findings and had drawn conclusion which was contrary to law---Validity---Leave to appeal. was granted by Supreme Court to consider the contention.

Amanullah Kanrani, Advocate Supreme Court and Zahid Muqeem Ansari, Advocate for Petitioner.

Nemo for Respondent.

Date of hearing: 10th May, 2002.

2002 SCMR 1317

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

ISMAIL and others‑‑‑Petitioners

versus

MUHAMMAD KHAN and others‑‑‑Respondents

Civil Petition No. 561‑L of 1999, decided on 30th April, 2002.

(On appeal from the judgment dated 8‑4‑1999 passed by the Lahore High Court; Lahore in R.S.A. No.775 of 1975).

West Pakistan Land Reforms Regulation, 1959 [M.L.R. 64]‑‑‑

‑‑‑‑Paras. 3, 6(6) & 27‑‑Civil Procedure Code (V of 1908), S.9‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Transaction was hit by provisions of Martial Law Regulation No.64‑‑‑Subsisting holding of owner, decision on‑‑‑Cancellation of mutation‑‑‑Jurisdiction of. Civil Court‑‑­Disputed property was sold to the respondents and mutation of sale was sanctioned‑‑‑Revenue Authorities reviewed the sale mutation on the ground that after the sale, remaining land of the owner had gone below the subsisting holding‑‑‑Subsequently the owner transferred the land in favour of the petitioners by way of gift mutation‑‑‑Respondents assailed the gift mutation which was cancelled by the Revenue Authorities and the sale mutation was restored‑‑‑Respondents having been unsuccessful up to Board of Revenue filed civil suit‑‑‑Trial Court dismissed the suit for lack of jurisdiction‑‑­Judgment and decree passed by the Trial Court was maintained by Appellate Court and second appeal was also decided against the petitioners‑‑­Contention of the petitioners was that the Trial Court, instead of dismissing the suit, could have kept the matter pending and had referred the petitioner to move t6 the Chief Land Commissioner‑‑‑Validity‑‑‑Petitioners failed to show that the jurisdiction of Civil Courts could be invoked to determine the question whether the transaction was hit by Martial Law Regulation No‑64 or not‑‑‑Power to declare any transaction as offending the provisions of Martial Law Regulation No.64 was vested in the Land Commission or the Land Commissioner and the jurisdiction of the Civil Courts was expressly excluded‑‑‑Land Commission was the final Judge to decide the question of a transaction being hit by the provisions of Martial Law Regulation No.64‑‑­Judgment passed by the High Court did not suffer from any legal infirmity so as to call for any interference by Supreme Court‑‑‑Leave to appeal was refused.

Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935 and Khushi Muhammad and 9 others v. The Chief Land Commissioner, Sindh at Hyderabad and 17 others 1993 SCMR 878 ref.

Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667; Mst. Hajiani v. West Pakistan Land Commission, Lahore PLD 1966 SC 114 and K.B. Mian Feroze Shah. v. Nawabzada Muhammad Umar Khan and others PLD 1966 SC 340 rel.

M Amjad Hussain Syed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Syed Shabbar Raza Rizvi, Advocate Supreme Court for Applicant.

Date of hearing: 30th April, 2002.

2002 S C M R 1320

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed lqbal, JJ

MUHAMMAD TAYYUB ‑‑‑ Petitioner

verst,s.

Syed ABDUL HABIB ‑‑‑Respondent

Civil Petition No. 20‑Q of 2002, decided on 11th May, 2002.

(On appeal from the judgment/order dated 12‑4‑2002 passed by High Court of Balochistan Quetta in F.A.O. No. 25/2001).

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

‑‑‑‑S. 13(3)(ii)(a)‑‑‑Ejectment of tenant‑‑‑Bona fide personal need o1 landlord‑‑‑Non‑residential building‑‑‑Requirement of child/children o1 landlord‑‑‑Basic consideration‑‑‑Right conferred upon landlord to recover possession from tenant under S.13(3)(ii)(a) of West Pakistan Urban Rent Restriction Ordinance, .1959‑‑‑Scope‑‑‑Two types of rights are conferred upon a landlord to apply to Rent Controller for order directing tenant to put landlord in possession of non‑residential building in good faith for his own use or for the use of any of the male children/child‑‑‑When landlord exercises his right on behalf of male child/children to occupy non‑residential building, his claim is based on altogether different consideration from the one when he exercises such right for his own use‑‑‑Cause of action with regard to obtaining possession in good faith for the use of male child/children depends factually upon the requirement of his children or child for whom the premises is required to be occupied by him‑‑‑Reading the provision of law alongwith S.13(3)(ii)(b) of West Pakistan Urban Rent Restriction Ordinance, 1959, removes the ambiguity regarding bona fides of the child for whom the premises is required because the landlord has to show that his child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land as the case may be suitable for his needs at the time.

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

‑‑‑‑S. 13(3)(ii)(a)‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord for his son‑‑‑Non‑residential premises‑‑‑Prerogative of landlord‑‑‑Courts below denied eviction of tenant for the reason that the landlord had another vacant shop which could be used by his son to establish his .business‑‑­Validity‑‑‑Prerogative was of tire landlord to express suitability in respect of any shop which was required to be occupied by him either for himself or for his children and his such right could not be curtailed under any flimsy consideration‑‑‑Son of the landlord for whom the shop was required to be vacated was not in occupation of any other suitable shop, therefore, for such reason the landlord had obligation to establish his case for obtaining possession of the shop from the tenant in respect of the shop which he earmarked for the use and occupation of his son notwithstanding the fact that the adjacent shop was vacated by the tenant‑‑‑Occupation of non‑residentual building by landlord for his child was a question of fact and the same was to be decided on the basis of available material instead of denying relief to the landlord merely on the basis of surmises or conjectures as well as contrary to the facts available on record‑‑‑Landlord, in the present case had produced overwhelming evidence to prove that the shop in occupation of the tenant was required in good faith for running the business by his son who was not presently occupying any non‑residential building for doing so‑‑‑High Court as well as Rent Controller failed to appreciate the case of the landlord in its real perspective and denied relief to him without any legal justification‑‑‑Supreme Court converted petition for leave to appeal into appeal and the tenant was evicted from the premises‑‑‑Appeal was allowed.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑S. 13(3)(ii)(a)‑‑‑Bona fide personal need of landlord far his son‑‑‑Proof‑‑­ Tenant contradicted the bona fides of the landlord on the ground that another shop was vacated during pendency of the application and the landlord instead of occupying the same displayed a sign board showing intention of the landlord to let out the shop‑‑‑To prove the contention tenant produced a photograph showing the signboard‑‑‑Validity‑‑‑Such photograph alone was not convincing evidence on record‑‑‑Such type of board could be displayed quite conveniently by anyone else with mala fide intention‑‑‑Supreme Court repelled the contention of the tenant.

Tariq Mehmood, Advocate Supreme Court and Mehta W.N. Kohli, Advocate‑on‑Record for Petitioner.

Naeem Akhtar, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 10th May, 2002.

2002 S C M R 1326

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

Dr. SARFRAZ HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.807‑L of 2001, decided on 5th March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 7‑11‑2001 passed by Criminal Appeal No.577 of 1997).

Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Constitution of Pakistan (1973), Ats.185(3), 199 & 204‑‑­Constitutional petition‑‑‑Contempt of Court‑‑‑Issuance of false medical certificate by doctor in respect of ailment of an under-trial prisoner‑‑­Petitioner (a Physician) admitted his guilt by offering unconditional apology and throwing himself at the mercy of Court‑‑‑High Court convicted him considering his said act an interference with administration of justice‑‑­Contention of petitioner was that during inquiry certificate issued by him had been found to be correct‑‑‑Validity‑‑‑Petitioner had in fact submitted a false certificate and tried to mislead the Court‑‑‑Supreme Court did not interfere with sentences awarded to petitioner as being legal‑‑‑Petition was dismissed being devoid of merit.

Rana Muhammad Arshad Khan, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 5th March, 2002.

2002 S C M R 1327

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

TANWEER AHMED HARAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.833‑L of 2001, decided on 12th February, 2002.

(On appeal from the judgment, dated 20‑11‑2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.4350/B of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.420/468/471/476/406/109‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail, grant of‑‑‑Allegation in F.I.R. against accused was that when application of co‑accused for grant of finance facility was under process of approval by complainant‑Bank, accused obtained letter of guarantee from ABN Amro Bank, whereupon finance facility was sanctioned and amount of 208.00 million was withdrawn; and that letter of guarantee was later on found to be forged and fabricated‑‑­Accused had been found fully implicated in the case during investigation as he had personally encashed the cheques issued to withdraw said amount of facility‑‑‑No case for grant of pre‑arrest bail to accused was made out‑‑­Supreme Court dismissed the petition and refused to grant leave to appeal in circumstances.

Sardar Muhammad Latif Khosa, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 12th February, 2002

2002 S C M R 1329

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

RASHAD ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.215‑L of 2002, decided on 15th April, 2002

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979); S.10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑‑Plea of accused was that both the facts i.e. incident being unseen one and unexplained delay of 6/7 days in lodging of F.I.R., had made his case to be of further inquiry‑‑‑Validity‑‑‑Direct allegation of committing Zina had been levelled against accused‑‑‑Offence being heinous in nature, accused was not entitled to concession of 'bail‑‑‑Judgment of High Court dismissing bail application of accused was not suffering from any defect or illegality, warranting interference by Supreme Court‑‑‑High Court had directed conclusion of trial expeditiously‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal.

Mahtnood A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 15th April, 2002,

2002 S C M R 1330

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

ABDUL HAQ and another‑‑‑Petitioners

Versus

Mst. SURRYA BEGUM and others-- Respondents

(On appeal from the judgment of the Lahore High Court, Lahore, dated 16‑11‑2001 passed in Civil Revision No,728 of 1991).

(a) Islamic Law

‑‑Will‑‑‑Will made by deceased in favour of non‑heir(s) would be effective even without consent of heir(s) of the deceased.

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

‑‑‑‑S.42‑‑‑Qanun‑‑e‑Shahadat‑ (10 of 1984), Art.64‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration‑‑‑S died in year 1960 leaving behind one son namely A, whereas his other son namely M had predeceased him‑‑­ Inheritance mutation of S was sanctioned on 16‑2‑1961 in favour of defendants on the basis of will=‑‑Plaintiffs' claim was that they were sons of M. whereas defendants were not his daughters, but were daughters of 'N, previous husband of their mother, thus, were not entitled to inherit the whole property of S‑‑‑Trial Court disnussed the suit finding that defendants were daughters of M‑‑‑Appellate Court decreed the suit, but High Court in revision set aside the decree and dismissed the suit‑‑‑Contention of plaintiff was that in view of direct evidence of defendants' mother to the effect that defendants were born from her previous wedlock with N, it could not be said that defendants were daughters of M‑‑‑Validity‑‑‑Defendants' mother had certainly an interest to support plaintiffs (her sons) in order to retain the property in family so that defendants‑daughters might not have any share therein and their husbands might not get the same‑‑‑Plaintiffs had not led evidence about inheritance of N (previous husband of defendants' mother) in order to show that after his death, inheritance mutation of his property had been sanctioned in favour of his widow and daughters‑‑‑Such direct evidence having been withheld, mere statement of defendants' mother to support her sons would not be sufficient to deprive defendants of their status as daughters of M‑‑‑None of the parties to the suit being heirs of M (predeceased son of S) were entitled to inherit the property of S in presence of A‑‑‑Will made in favour of defendants, thus, was not a will made in favour of any heir of S, as such same was effective even without consent of A‑‑‑Plaintiffs claiming property through A as his heirs had filed the suit in 1979, about nine years after sanction of mutation, which had already been given effect to in record of rights‑‑‑Plaintiffs had no locus standi to challenge the mutation independently, for A through, whom they claimed inheritance had not challenged the same during his lifetime‑‑‑Findings of Trial Court and High Court did not suffer from any legal infirmity warranting interference by Supreme Court‑‑‑Petition was dismissed and leave to appeal was refused in circumstances.

Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th February, 2002.

2002 S C M R 1334

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

TANWEER AHMED HARAL---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.832-L of 2001, decided on 12th February, 2002.

(On appeal from the judgment, dated 20-11-2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.4349/B of 2001).

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420/468/471/476/406/109--­Constitution of Pakistan (1973), Art. 185(3)---Bail---Allegation against accused was that he as Relationship Manager of complainant-Bank secured letter of guarantee for Rs.80 million from Bank (ABL), and after that facility was processed and co-accused drew a sum of Rs.74.088,609; that letter of guarantee was later on found to be forged and fabricated as not having been issued by said Bank (ABL): that accused had received two cheques issued by

co-accused; and that out of amount withdrawn by co-accused from complainant Bank, accused had admitted receipt of Rs.33,000---All such facts prima facie showed that accused was fully involved in the commission of such big fraud, thus, was not entitled to concession of bail--­Supreme Court dismissed the petition and refused to grant leave to appeal.

Sardar Muhammad Latif Khosa, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 12th February, 2002. .

2002 S C M R 1336

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MUHAMMAD RAMZAN‑‑‑Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY, LAHORE‑‑‑Respondent

Civil Petition for Leave to Appeal No.481‑L of 1999, decided on 29th April, 2002.

(On appeal from order of Lahore High Court, Lahore dated 25‑2‑1999 passed in Review Application No.29 of 1999).

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

‑‑‑‑O.XLVII, R.1‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑­Review petition against judgment passed in Constitutional petition by the High Court‑‑‑Petitioner filed Constitutional petition through AKM, Advocate, which was argued by SH, Advocate for MKK, Advocate and was decided on merits‑‑‑Petitioner sought review of judgment on the ground that he was out of country at relevant time; that his case was not properly argued; and that he did not engage MKK, Advocate‑‑‑High Court dismissed the review petition‑‑‑Validity‑‑‑Petitioner had not denied his signatures on power attorney of MKK, Advocate‑‑‑Petitioner had neither initiated any action against said counsel for alleged unauthorised representation nor explained the absence of AKM, Advocate, through whom Constitutional petition had been filed‑‑‑Strong presumption of correctness and sanctity of high order was attached to judicial proceedings‑‑‑Supreme Court directed. ‑ petitioner to submit his original passport for verification of material dates on which he claimed his absence from Pakistan, over which he produced his British Passport reflecting that he landed in Pakistan on 22‑12‑1999, but in spite of having a bunch of British and Pakistani Passports, he could not produce other Passport to show that he was away from country on 6‑3‑1996, which was the date on power of attorney filed by his counsel‑‑‑No substance in petitioner's plea that his case had not been argued properly nor such plea could be a ground for review of final judgment‑‑‑Scope of review was restricted to some mistake or error apparent on the face of record, discovery of new or important matter or evidence, which despite due diligence was not within the knowledge of petitioner, when order was passed or for any other sufficient reason‑‑‑None of such grounds was made out in the case with necessary corollary that Supreme Court dismissed the petition and refused to grant leave to appeal.

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

‑‑‑‑O.XLVII, R.1‑‑‑Review‑‑‑Scope‑‑‑Scope of review was restricted to some mistake or error apparent on the face of record, discovery of new or important matter or evidence, which, despite due diligence, was not within the knowledge of petitioner, when order was passed or for any other sufficient reason.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.91‑‑‑Judicial proceedings‑‑‑Strong presumption of correctness and sanctity of high order is always attached to judicial proceedings.

Muhammad Sharif Khokhar, Advocate Supreme Court and Mehmood‑ul‑Islam, Advocate‑on‑Record for Petitioner.

M. Rashid Ahmad, Advocate Supreme Court and S. Abul Aasim Jaffri, Advocate‑on‑Record for Respondent. .

Date of hearing: 29th April, 2002.

2002 S C M R 1339

[Supreme Court of Pakistan]

Present; Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

SARFRAZ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.60‑L of 2002, decided on 17th April, 2002.

(On appeal from the judgment dated 20‑12‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 102‑J of 1996, 319 of 1997 and Murder Reference No.261 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/324/337‑F(iii)/148/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑F.I.R. had been lodged with promptitude attributing specific roles to assailants including petitioner and describing their respective lethal weapons, which they were carrying at the time of occurrence‑‑‑Complainant (brother of both the deceased) and injured witness had given ocular account of incident and their presence at the spot could not be doubted‑‑‑Defence, in spite of having cross‑examined said witnesses at length could not shatter their testimony‑‑‑Medical evidence was. also completely in line with ocular version‑‑‑Both the Courts below had considered the stance of prosecution in juxtaposition with that of taken by defence‑‑‑Defence story was that 20‑25 persons carrying lethal weapons arrived in front of the house of accused and resorted to indiscriminate firing, but not a single person from accused side had sustained any injury‑‑‑Story put up by defence, thus, did not appeal to reason as being unnatural and improbable‑‑‑Incriminating gun had been recovered from petitioner, which according to Forensic Science Laboratory was wedded with crime empties recovered from place of occurrence‑‑‑No justification having been found Supreme Court declined to interfere with well‑reasoned judgment of High Court‑‑‑Petition was dismissed and leave to appeal was declined in circumstances.

Ch. Muhammad Aslam Sandhu, Advocate Supreme Court with Tanvir Ahmad, Advocate‑on‑Record for Petitioner.

Nemo for the State, Date of hearing: 17th April, 2002

2002 S C M R 1342

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar. JJ

Dr. MUHAMMAD BASHIR‑‑‑Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others‑‑‑Respondents

Civil Petition No. 3591‑L of 2001, decided on 12th March, 2002

(On appeal from the order dated 17‑9‑2001 of the Lahore High Court, Lahore, passed in Civil Misc. Application No.3/2001 in Writ Petition No. 2146/2001).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 185(3)‑‑‑Constitutional petition, transfer of‑‑‑Discretion of High Court‑‑‑Petitioner sought transfer of his. Constitutional petition from one Division Bench of High Court to another‑‑‑High Court declined to transfer the petition and the application was dismissed‑‑‑Validity‑‑‑Prayer for transfer of the matter was not backed by any law or the Constitution‑‑‑Order passed by the High Court, being prerogative related act was unexceptionable‑‑‑Supreme Court declined to transfer the petition‑‑‑Leave to appeal was refused.

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

Nerno for Respondents.

Date of hearing: 12th March, 2002.

2002 S C M R 1343

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar,J

GHULAM FARID‑‑‑Petitioner

versus

GHULAM MUSTAFA and another‑‑‑Respondents

Criminal Petition No. 573‑L of,2002, decided on 26th March‑2002.

(On appeal from the judgment dated 23‑7‑2001 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.. 367 of 1998 and Murder Reference No.42 of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Reappraisal of evidence‑‑‑Prosecution witnesses were not residents of the area where the occurrence had taken place and their presence on the spot was doubtful=‑­Court witness on whom the murderous assault was made did not support the prosecution story‑‑‑Death sentence awarded to the accused by the Trial Court was set aside by the High Court‑‑‑Validity‑‑‑Supreme Court after re‑appraisal of evidence concluded that the findings of the High Court were based on correct, elaborate and careful appraisal of evidence which was in accordance with the principles laid down by superior Courts for safe administration of criminal justice‑‑‑Supreme Court declined to interfere with the judgment passed by the High Court as the same did not suffer from any illegality‑‑­Leave to appeal was refused.

Ch. Sardar Ali, Advocate Supreme Court with M. Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th March, 2002.

2002 S C M R 1345

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

Mst. SAEEDA SULTANA and another‑‑‑Petitioners

versus

Mgt. ROSHAN ARA and others‑‑‑Respondents

Civil Petition No. 70‑L of 2002, decided on 7th February, 2002.

(On appeal from the judgment dated 21‑12‑2001 passed by the Lahore High Court, Lahore in F.A.O. No. 29 of 2001).

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

‑‑‑‑O.XXXIX, Rr.l & 2‑‑‑Constitution of Pakistan (1973), Art.185(3)‑-­Interim injunction, grant of‑‑‑Suit for partition‑‑‑ Plea of gift raised by defendant‑‑‑Equal treatment by law‑‑‑Deceased owner of the suit property had one son and four daughters‑‑‑Son excluded the daughters from the inheritance on the basis of gift deeds made in his favour‑‑‑One of the daughters filed a suit for possession through partition and interim injunction was granted by High Court on the statement of the son made in favour of the daughter whereby the son had offered himself not to deal with or sell that part of the property which could fall to the share of the daughter in case the alleged gift deeds were found invalid‑‑‑High Court had restrained the son from alienating the property to the extent of the share of the daughter‑‑‑Later on two other daughters also instituted the suit and filed application for interim injunction ‑‑‑Courts below refused injunction to the plaintiffs‑‑­Validity‑‑‑Where the Trial Court and the High Court had in the first round of litigation commenced by the other daughter came to the conclusion that the safeguard was required to be provided to one daughter of the deceased owner then denial of the same protection to the other daughters of the same father was not understandable and such denial was unjust‑‑Technicalities of law, if any, involved in the matter, could not be permitted to lead to unfair and unjust conclusions‑‑‑Son in the present case, had taken a different stance vis­a‑vis the other daughters of the same deceased owner‑‑‑Supreme Court converted the petition into appeal and directed that the protection provided earlier to the daughter to the extent of her Islamic share in the properties left behind by the deceased owner be allowed to the plaintiffs also‑‑‑Interim injunction was granted.

(b) Practice and procedure‑‑

‑‑‑‑ Technicalities of law could not be permitted to lead to unfair and ujust conclusion.

Iqbal Mahmood Awan, Advocate Supreme Court and Faiz‑ur-­Rehman; Advocate‑on‑Record for Petitioner.

Syed Misbahul Hasan, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record for Respondents.

Date of hearing: 7th February, 2002.

2002 S C M R 1349

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

AZHAR IQBAL and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition. No. 160‑L of 2002, decided on 22nd March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 21‑12‑2001 passed in Crl. Rev. No. 242 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Reappraisal of evidence‑‑‑Fire‑arm injury on vital part of body‑‑‑Enhancement of sentence‑challenged‑‑‑Accused persons caused injuries on the vital parts of the body of the injured person by fire‑arm weapons‑‑‑Trial Court awarded sentence of 4 years' imprisonment but High Court enhanced the same to 7 years‑‑Plea raised by the accused persons was that the enhancement of the sentence was illegal ‑‑‑Validity‑‑‑Accused persons had done all to cause death of the injured and it was his luck' that he was saved‑‑‑Keeping in view serious nature of the injuries caused by the accused persons, the High Court had rightly enhanced the sentence from 4 years' imprisonment to 7 years‑‑­Order of the High Court did not suffer from any legal infirmity‑‑‑Leave to appeal was refused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.324 & 337‑F(i)‑‑‑Enhancement of sentence‑‑‑Principle of double jeopardy‑‑‑Applicability‑‑‑Accused persons were awarded 4 years' imprisonment by the Trial Court and they had undergone the sentence‑‑‑High Courts in appeal enhanced the sentence from 4 years to 7 years' imprisonment‑‑‑Plea raised by the accused persons was that after the lesser sentence awarded by the Trial Court had been undergone by the accused persons, the enhancement of the sentence by High Court would cause double jeopardy‑‑‑Validity‑‑‑Maximum sentence prescribed under S.324, P.P.C. was 10 years' imprisonment, therefore, while having undergone the sentence of lesser period awarded to the accused, the full sentence prescribed under the law was not said to have been undergone‑‑‑High Court was legally competent and vested with the jurisdiction to enhance the sentence up to maximum period of imprisonment which was prescribed as one full sentence‑‑‑Principle of double jeopardy was not applicable in circumstances.

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

‑‑‑‑Ss. 410, 422 & 423‑‑‑Penal Code (XLV of 1860) Ss.324 & 337‑F(i)‑‑ Appeal‑‑‑Notice to all convicted persons‑‑‑Enhancing of sentence in absence of all the convicted persons‑‑‑Trial Court awarded four years' imprisonment and appeal before High Court against the sentence was heard at the time when the convicted persons had undergone the sentence‑‑‑One of the convicts after having undergone the sentence had gone abroad‑‑‑High Court without declaring such convict as absconder decided the appeal and enhanced the sentence of all the convicted persons‑ ‑‑Contention of the convicts present before the Court was that the sentence could not have been enhanced, as the case could not be heard unless all the convicts were before the Court‑‑­Validity‑‑‑Present was a case of notice of enhancement of sentence and not the original trial, therefore, the convicts present before the High Court could not raise any objection as they were heard before their sentence was enhanced‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Convict having gone abroad, if feeling aggrieved by order of High Court could seek his remedy in accordance with law.

Mian Allah Nawaz, Advocate Supreme Court and Mehmood‑ul­-Islam, Advocate‑on‑Record for Petitioners.

Nasim Sabir, Additional Advocate‑General, Punjab and Walayat Umar, Advocate‑on‑Record for the State.

Complainant and injured (on notice) in person.

Date of hearing: 22nd March, 2002.

2002 S C M R 1353

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

BAKHSHA and others‑‑‑Petitioners

versus

CHUGATTA‑‑‑Respondent

Civil Petition No. 3977‑L of 2001, decided on 8th April, 2002.

(On appeal from the judgment dated 2‑10‑2001 passed by High Court, Bahawalpur Bench in R.S.A. No. 4 of 1987).

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

‑‑‑‑Ss.8 & 42‑‑‑Limitation Act (IX of 1908), Arts.120 & 144‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for declaration. and recovery of possession‑‑‑Limitation‑‑‑Concurrent findings of fact by the Courts below‑‑­Plaintiffs after purchase of the suit land filed the suit‑‑‑Defendants being in possession of the suit land resisted the suit and alleged the mutation of sale a result of fraud‑‑‑Defendants could neither prove place of attestation of the mutation nor the persons who identified the plaintiffs were produced as witness‑‑‑Trial Court decreed the suit in favour of the plaintiffs‑‑‑Judgment and decree passed by the Trial Court was maintained by the Appellate Court as well as High Court in exercise of appellate jurisdiction‑‑‑Contention of the defendants was that the suit was barred by limitation as the suit was governed by Art. 120 of the Limitation Act, 1908‑‑‑Validity‑‑‑Defendants failed to persuade the Supreme Court that the findings recorded by the Courts below on question of fact suffered from any illegality such as misreading or non-­reading of any material piece of evidence‑‑Plaintiff had claimed recovery of possession of land as a consequential relief, therefore, the suit was primarily of recovery of possession of land and by applying Art. 144 of the Limitation Act, 1908, the Trial Court had rightly found that the same was not barred by limitation‑‑‑Supreme Court declined to interfere with the findings of the Courts below‑‑‑Leave to appeal was refused.

(b) Fraud‑‑‑

‑‑‑‑ Suit based upon allegation of fraud‑‑‑Limitation‑‑‑Computing period of limitation‑‑‑Right to sue accrues when the factum of fraud comes to the knowledge of the plaintiff.

Muhammad Anwar Ghuman, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 8th April, 2002.

2002 S C M R 1355

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

REHMAT KHAN‑‑‑Petitioner

versus

Mst. MAUJ BIBI and others‑‑‑Respondents

Civil Petition No.452‑L and Criminal Original No. 13 of 1999, decided on 6th March, 2002.

(On appeal from the order dated 17‑2‑1999 of the Lahore High Court, Lahore, passed in Civil Revision No. 4003/94).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 64‑‑‑Constitutionof Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration‑‑‑Plaintiff challenged inheritance mutation of deceased claiming 3/4th share therefrom‑‑‑Trial Court decreed the suit‑‑‑Appellate Court dismissed the suit, which judgment was upheld by High Court in revision‑‑‑Validity‑‑‑Evidence adduced by plaintiff to prove that he was a collateral of deceased was too deficient to establish his alleged relationship‑‑‑Both witnesses examined by plaintiff were strangers as the former about two years ago had taken up residence in the village, where disputed land was situated, whereas the latter's village was situated at a distance of 10/15 miles from plaintiff's‑ village‑‑‑Plaintiff had not examined any person having special knowledge about his relationship with deceased‑‑­Pedigree‑table neither linked the plaintiff in any manner with deceased nor same had been proved in accordance with law‑‑‑Plaintiff's claim had not been established on record‑‑‑Impugned judgment did not warrant interference‑‑­Supreme Court dismissed the petition and refused to grant leave to appeal.

Malik Amjad Pervaiz, Advocate Supreme Court and C.M. Lateef, Advocate‑on‑Record (absent) for Petitioner (in C.P. No.452‑L of 1999) and for Respondents (in Criminal Original No. 13 of 1999).

Ch. Azim‑ud‑Din, .Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on‑Record for Petitioner (in Criminal Original No. 13 of 1999) and for Respondent (in C.P. No. 452‑L of 1999).

Date of hearing: 6th March, 2002.

2002 S C M R 1357

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

TANVEER HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.494/L of 2001, decided on 15th February, 2002.

(On appeal from the judgment dated 19‑6‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.209 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/148/149‑‑‑‑Criminal Procedure Code (V of 1898), S.410‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑,Ocular account of the incident in its material particulars had been stated by prosecution witnesses‑‑‑Four prosecution witnesses had sustained injuries during occurrence and their presence at the spot was natural and had been fully established‑‑‑Accused alongwith co‑accused had received injuries in the scuffle‑‑‑Plea of accused that they were not armed with any weapon and the injuries suffered by complainant side, wherein one person lost his life and four witnesses sustained injuries, were caused due to indiscriminate firing made by complainant side, did not stand to reason and was not plausible in the facts and circumstance of the case‑‑‑Additional Sessions Judge had rightly determined the case to be that of free fight and convicted the accused under S.324, P.P.C.‑‑‑Appeal filed by accused against his conviction was not pressed by his counsel, which was dismissed by High Court‑‑‑Petition for leave to appeal, thus, was not maintainable‑‑‑Supreme Court after perusing entire evidence did not see any reason to interfere with the same‑‑‑Petition was dismissed and leave to appeal was refused.

Shahid Hussain Kadri, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 15th February, 2002.

2062 S C M R 1361

[Supreme Court of Pakistan]

Present. Qazi Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

ZULFIQAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 635‑‑L of 2001, decided on 6th February, 2002.

(On appeal from the judgment dated 8‑8‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1195 of 1999).

Penal Code (XLV of 1860)‑

‑‑‑‑Ss. 302(b)/324‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑­Prosecution had established the case beyond any reasonable doubt through statements of three eye‑witnesses, one of them had sustained fire‑arm injuries in occurrence‑‑‑Ocular evidence was not suffering from any noteworthy infirmity, but was corroborated by incriminating recovery, positive report of Fire‑Arms Expert and the stance taken by accused in his statement under S.342, Cr.P.C., establishing his presence at the time of occurrence as mentioned in F.I.R.‑‑‑Accused had not denied occurrence, but had admitted the presence of injured witness on the spot, thus, delay in lodging F.I.R. and belated recording of statement of injured eye‑witness under S.161, Cr.P.C., were immaterial and could not be blown out of the proportion‑‑‑All eye­witness in general and injured eye‑witness in particular were natural witnesses and their testimony was confidence‑inspiring‑‑‑Plea of self‑defence taken by accused had neither been established by evidence nor could be inferred from prosecution evidence and such plea, when tested on the touchstone of medical evidence, seemed to be absurd and false‑‑‑No ground for grant of leave to appeal had been made out‑‑‑Supreme Court dismissed the petition and refused leave to appeal.

Yousuf Kazmi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 6th February, 2002.

2002 S C M R 1364

[Supreme Court of Pakistan]

Present; Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

ALAF DIN‑‑‑Petitioner

versus

PROVINCE OF PUNJAB and others‑‑‑Respondents

Civil Petition No. 51‑L of 2002, decided on 9th April, 2002.

(On appeal from the judgment dated 6‑11‑2001 passed by Lahore High Court, Lahore in Civil Revision No. 621 of 1991).

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.185(3)‑‑‑New plea, raising of‑‑‑Concurrent findings of fact recorded by the Courts below‑‑‑Temporary allotment for maintenance‑‑‑Disputed property was mutated in the name of his brother after the death of the original allottee‑‑‑Petitioner being nephew of the original allottee claimed allotment of the property in his name‑‑‑All the Courts below had decided the matter against the petitioner and did not find him entitled to allotment of the disputed property‑‑‑Plea raised by the petitioner was that after the death of the allottee, his, inheritance would open to his heirs, under Islamic law and petitioner being nephew of the allottees would also get the share as both the allottees did not have male issue‑‑‑Validity‑‑‑Findings of fact did not suffer from any illegality on account of misreading or non‑reading of any material piece of evidence‑‑‑Plea raised by the petitioner was a question not before Supreme Court for decision in the proceedings‑‑‑Supreme Court observed that whenever a mutation of inheritance of the allottees would be sanctioned, the petitioner might raise the question which would be decided to accordance with law and if the petitioner would feel aggrieved, he might seek remedy in accordance with law‑‑‑Supreme Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Leave to appeal was refused.

Syed Farooq Hassan Naqvi, Advocate Supreme. Court and M.A Qureshi, Advocate‑on‑Record for Petitioner. .

Nemo for Respondents.

Date of hearing: 9th March, 2002.

2002 SCM R 1367

[Supreme dot of Pakistan]

Present: Ch Muhammad Arif and Syed Deedar Hussain Shah, JJ

MUHAMMAD YOUSAF ‑‑‑ Appellant

versus

MUSHTAQ AHMAD‑‑‑Respondent

Civil Appeal No.280 of 2001, decided on 19th March, 2001.

(On appeal from the judgment dated 17‑12‑1999 of the Peshawar High Court, Abbottabad Bench, Abbottabad in Civil Revision No. 109 of 1995).

Supreme Court Rules, 1980‑‑‑

‑‑‑‑O..XIV, Rr.1, 4 & O.XV. Rr.2, 4‑‑‑Constitution of Pakistan (1973), Art, 185(3)‑‑‑Failure of appellant to submit requisite numbers of paper books within time fixed in the notice‑‑‑Effect‑‑‑Leave to appeal was granted on 16‑2‑2001 in presence of Advocate‑on‑Record for appellant with direction that appeal be fixed within two months‑‑‑Expected compliance with show­-cause notice dated 3‑3‑2001 on 19‑3‑2001 would be of no help to the appellant as he had failed to comply with direction contained in show‑cause notice‑‑‑Supreme Court dismissed the appeal for non­-prosecution.

Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Date of hearing: 19th March, 2001.

2002 S C M R 1368

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

LAL DIN. CONSTABLE‑‑‑Petitioner

versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 2 others‑‑‑Respondents

Civil Petition No.65‑L of 2001, decided on 1st March, 2002.

(On appeal from the judgment dated 30‑10‑2000 of the Punjab Service Tribunal. Lahore passed in Appeal No. 10 of 1994).

(a) Police Rules. 1934‑‑‑

‑‑‑‑Vol. II, Chap.XIII [Rr.13.1 to 13.20] ‑‑--Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Civil servant (constable) was not placed in List‑B1 for not having good. service record and having 18 punishments awarded against him‑‑‑Appeal tiled against such order was dismissed by Service Tribunal‑‑‑Validity‑‑‑Finding of Service Tribunal that question of fitness or otherwise of civil servant for bringing him in List‑BI had been decided by Departmental Authority on the basis of his service record, did not warrant interference by Supreme Court‑‑­Service record provided material for determining fitness or otherwise of a civil servant, which had been duly considered by Departmental Authority‑‑­No misreading of service record by Departmental Authority had been alleged‑‑‑Considerations weighing with Departmental Authority could not be shown to be legally unjustified‑‑‑No substantial question of law of public importance as envisaged in Art.212 of the Constitution having been raised Supreme Court dismissed the petition and refused to grant leave to appeal in circumstances.

(b) Civil service‑

‑‑‑‑ Service record‑‑‑Use and value‑‑‑Determination of fitness‑‑‑Relevant material‑‑‑Service Record provides material for determining fitness or otherwise of a civil servant.

Mian Mahmood Hussain, Advocate Supreme Court with Faiz‑ur-­Rehman, Advocate‑on‑Record for Petitioner. .

Nemo for Respondents.

Date of hearing: 1st March, 2002.

2002 S C M R 1370

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

MUHAMMAD WAQAS‑‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Petition No. 839‑L of 2001, decided on 11th February, 2002.

(On appeal from the judgment, dated 5‑12‑2001 of the Lahore High Court, Multan Bench, Multan passed in Criminal Miscellaneous No.2653‑B of 2001 ).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/337‑F(i)/337‑F(ii)/34‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑‑Petitioner filed bail application for offences under Ss.337‑A(ii)/337‑F(i)/337‑F(ii)/34, but High Court declined bail to accused mainly on the ground that on facts and circumstances of the case provisions of S.324, P.P.C. were, prima facie, attracted and as such the bail plea was hit by the prohibition contained in S.497(1), Cr.P.C.‑‑‑High Court in view of the facts stated in the F.I.R. had exercised its discretion correctly which did not warrant any interference‑‑­Leave to appeal was refused to accused by Supreme Court accordingly.

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

Nemo for the State.

Date of hearing: 11th February, 2002.

2002 S C M R 1371

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

BASHIR AHMED ‑‑‑‑Petitioner

versus

MEMBER (JUDICIAL‑III). BOARD OF REVENUE, PUNJAB, LAHORE and others‑‑‑‑Respondents

Civil Petition No.401‑L of 1999, decided on 5th March, 2002.

(On appeal from the order dated 28‑1‑1999 of the Lahore High Court, Lahore. Bahawalpur Bench passed in Writ Petition No.3106 of 1998).

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss.36, 161 & 164‑‑‑West Pakistan Land Revenue Rules, 1968, R.17‑‑­Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional petition before High Court‑‑‑Village Headman (Lambardar), appointment of‑‑­Collector appointed petitioner as Lambardar‑‑‑Respondent's appeal was dismissed on the ground that he was uneducated and had failed to deposit land revenue, for which warrants of his arrest were issued‑‑‑Board of Revenue accepted revision petition of respondent on the ground that at the time of making application for appointment as Lambardar, he was not a defaulter‑‑‑High Court dismissed the Constitutional petition filed by petitioner‑‑‑Contention of petitioner was that in view of the guidelines for appointment of Lambardar as highlighted in R.17 of West Pakistan Land Revenue Rules, 1968, he being an educated person having more landed property comparatively had an edge over the respondent, who was not only uneducated, but was also a defaulter at the time of filing said application‑‑­Validity‑‑‑Respondent was not a defaulter at crucial stage as there was nothing on record to lend support to such contention‑‑‑Education related contention was misconceived as R.17 of West Pakistan Land Revenue Rules, 1968, was silent on the subject‑‑‑Respondent had been given preference over the petitioner mainly for the reason that he had worked as temporary Lambardar for 14 years to entire satisfaction of the Authorities concerned‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal.

Ch. Muhammad Afzal Wahla, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Ch. Muhammad Anwar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 5th March, 2002.

2002 S C M R 1373

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

NASRULLAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.57‑L of 2002, decided on 26th February, 2002.

(On appeal from the judgment dated 10‑12‑2001 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.3971‑B of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Pre‑arrest bail‑‑­Complainant after having appeared in person in the Court had confirmed the stance taken. by the accused as noted in the order of the High Court that he had settled the matter through compromise as it was not the accused who had received any amount from him‑‑‑Petition for leave to appeal was consequently converted into appeal and the pre‑arrest bail already granted to accused was confirmed.

Mian Sarfraz‑ul‑Hassan, Advocate Supreme Court with C.M. Latif, Advocate‑on‑Record for Petitioner.

Ch. Nazir Ahmed, Advocate Supreme Court for the State.

Date of hearing: 26th February, 2002.

2002 S C M R 1374

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Syed Deedar Hussain Shah, JJ

MUNICIPAL COMMITTEE, MINGORA through Administrator‑‑‑Petitioner

versus

DEPUTY COMMISSIONER, SWAT and others‑‑‑‑Respondents

Civil Petition for Leave to Appeal No.411‑P of 2000, decided on 27th November, 2000.

(On appeal from the judgment/order, dated 6‑7‑2000, of the Peshawar High Court, Peshawar, passed in Writ Petition No‑546 of 1998).

Settlement of Immovable Property Disputes (Dir and Swat) Regulation, 1972 (M.L.R. 123)‑‑‑

‑‑‑‑Para.4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dispute relating to ownership of land‑‑‑Inquiry Commission found that former Ruler of Swat had purchased disputed land through registered sale‑deeds‑‑‑Deputy Commissioner through order, dated 7‑11‑1972 accepted report of Inquiry Commission ‑‑‑Federal Land Commission while dismissing appeal filed by claimants observed that disputed land was State property as the same had been purchased by former Ruler of Swat on behalf of the State and not in his personal capacity‑‑‑Chairman, Tribunal Land Disputes accepted review petition tiled by legal representatives of former Wali of Swat and set aside the order of Federal Land Commission and restored that of Deputy Commissioner dated 7‑11‑1972‑‑‑Order of Chairman having not been challenged further, attained finality‑‑‑Deputy Commissioner, on application made under Para.4 of the Regulation for implementation/execution of order dated 7‑11‑1972, issued ejectment order against petitioner‑‑‑High Court dismissed Constitutional petition tiled by petitioner‑‑‑Validity‑‑‑No denial of the fact that disputed property had been found to be the property of former Ruler of Swat, who had purchased the same through registered sale‑deeds as his personal property, which had not been purchased for the State or from incoming sources thereof‑‑‑Contentions raised by petitioner were not tenable whereas submissions made by respondents were borne out from the record and also supported by valid/legal orders passed by Competent Authorities, which could not be ignored‑‑‑High Court after considering all facts of the case had dismissed Constitutional petition with cogent and sound reasons‑‑­No illegality or jurisdictional error was found in impugned judgment‑‑­Supreme Court dismissed the petition and refused to grant leave to appeal.

Aminullah and 2 others v. Qalandar Khan and 4 others 1993 SCMR 2307; Nazir Ahmad v. King‑Emperor AIR 1936 PC 253(2) and Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of West Pakistan PLD 1957 (W.P.) Kar. 387 ref.

Mian Younus Shah, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate‑on‑Record (absent) for Petitioner.

Hasan Aurangzeb and M.S. Khattak, Advocate‑on‑Record for the Caveator (by Special Permission).

Date of hearing: 27th November, 2000.

2002 S C M R 1380

[Supreme Court of Pakistan]

Present Qazi Muhammad Farooq and Tanvir Ahmed Khan. J

JEHANZEB alias BHOBI,‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.55‑L of 2002, decided on 13th February, 2002.

(On appeal from the order, dated 21‑1‑2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No. 19‑B of 2002)

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Emigration Ordinance (XVIII of 1979), Ss. 17/22‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Accusation against the accused was that he alongwith his co‑accused had taken an amount of 88.5,75,000 for sending two sons of the complainant to United States of America, but the needful was not done‑‑‑Accused was reasonably connected with the offence for which he had been charged‑‑‑Rule of consistency could not be pressed into service as the case of accused was not at par with that of his co‑accused who had been admitted to bail‑‑‑Discretionary order passed by High Court refusing bail to the accused did not call for any interference‑‑‑Leave to appeal was refused to accused in consequence.

Asif Mehmood Chughtai, Advocate Supreme Court and S.Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 13th February, 2002.

2002 S C M R 1381

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, C.J. and Tanvir Ahmed Khan, J

MUHAMMAD NAWAZ‑‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Petition for Leave to Appeal No.585‑L of 2001, decided on 24th January, 2002.

(On appeal from the order, dated 3‑7‑2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.3274‑B of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Bail‑‑‑Trial in the case was likely to be concluded in the near future‑‑‑Supreme Court as such did not deliberately attend to the merits of the case lest it might prejudice the case of either patty and dismissed the bail application at such stage‑‑‑Trial Court was, however, directed to expedite the matter and finalise the case as early as possible.

Ch. Naseer Ahmed Bhutta, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Muhammad Akbar Tarar, Additional Advocate‑General, Punjab with A.H. Masood, Advocate Supreme Court for the State.

Saiful Malook, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record, for the Complainant.

Date of hearing: 24th January, 2002.

2002 S C M R 1383

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

MUHAMMAD ASLAM JAVED‑‑‑Appellant

versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 6 others‑‑‑Respondents

Civil Appeal No. 1213 of 1995, decided on 30th May, 2001.

(On appeal from the judgment dated 5‑6‑1995 passed by the Federal Service Tribunal, Islamabad in Appeal No. 14(R) of 1995).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Civil Servants Act (LXXI of 1973), S.8‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑‑Limitation‑‑‑Civil servant on 3‑2‑1990 represented against provisional seniority list dated 21‑1‑1990, but Authority upheld said list through order dated 30‑11‑1994‑‑‑Civil servant on coming to know of said decision applied for its copy, which was supplied to him on 27‑2‑1995, whereafter he , tiled appeal before Service Tribunal on 27‑3‑1995, but same was dismissed as being time‑barred‑‑‑Validity‑‑‑Case of authority was not that either civil servant had not represented against provisional seniority list or appellate order, dated 30‑11‑1994 had been conveyed/supplied to him earlier than 27‑2‑1995 or he had not filed appeal before Tribunal on 27‑3‑1995 i.e. within 30 days of the supply of copy of appellate order dated 30‑11‑1994 rejecting his representation on 27‑2‑1994 against provisional seniority list dated 21‑1‑1990, went a long way in establishing his bona tides in making appeal against appellate order within 30 days of receipt of its copy on 27‑3‑1995‑‑‑Supreme Court accepted the appeal, set aside the impugned judgment and remanded the case to Service Tribunal for decision on issues other than limitation.

Syed Firdos Ali v. Secretary, Establishment Division, Islamabad and 2 others 1997 SCMR 1160 rel.

Muhammad Arshad Saeed, D.I.‑G. Police Government of Pakistan through Secretary, Establishment Division, Islamabad and 29 others 1994 SCMR 1033 ref.

Fazal Ellahi Siddiqui, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant.

M. Nawaz Bhatti, Deputy Attorney‑General with Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos. 1 to 3.

Nemo for Respondents Nos.4 to 7.

Date of hearing: 30th May, 2001.

2002 S C M R 1387

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

Malik MASHOOD AHMED ‑‑‑‑ Petitioner

versus

JAFAR and 2 others‑‑‑‑Respondents

Criminal Petition No.342‑L of 2001, decided on 8th February, 2002.

(On appeal from the judgment dated 7‑5‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.2049 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Accused had been acquitted on correct premises and grounds of their acquittal recorded by the Trial Court were considered and upheld by the High Court which could not be termed as fanciful or capricious so as to justify interference‑‑‑Leave to appeal was declined by Supreme Court to the complainant accordingly.

A.G. Tariq Chaudhry, Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 8th February, 2002.

2002 S C M R 1389

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

MUHAMMAD SHAFIQUE‑‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Petition for Leave to Appeal No.696‑L of 2001, decided on 15th February, 2002.

(On appeal from the judgment, dated 11‑9‑2001 of the Lahore High Court, Multan Bench, passed in Criminal Appeal No.404 of 1998 and Murder Reference No. 70 of 1999). ‑‑‑‑

Penal Code (XLV of 1860)...

‑‑‑‑Ss.302(a), 324, 337‑F(ii) & 337‑F(iv)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Plea of self‑defence taken by accused was not attracted to the facts of the case ‑‑‑Accused's side was the aggressor‑‑‑Deceased had suffered 13 injuries, but he was not alleged to have caused any injury to any person‑‑‑F.I.R. was promptly lodged with specific role assigned to the accused in the occurrence‑‑‑Both the parties had admitted the occurrence‑‑‑Unimpeachable ocular account furnished by the injured witnesses was corroborated by medical evidence, incriminating recovery and motive‑‑‑Leave to appeal was declined to accused by Supreme Court in circumstances.

Sh. Khizar Hayat, Advocate Supreme Court with Ch.Talib Hussain, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 15th February, 2002.

2002 S C M R 1391

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

MANZOOR AHMAD and 4 others‑‑‑Petitioners

versus

MEHRBAN and 5 others‑‑‑Respondents

Civil Petition No. 1884‑L of 1998, decided on 4th March, 2002.

(On appeal from the judgment dated 17‑9‑1998 of the Lahore High Court, Multan Bench, passed in Civil Revision No. 196‑D of 1997).

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

‑‑‑‑S.42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17(2) & 61‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for declaration‑‑‑Plaintiff challenged registered sale‑deed executed by their deceased father in favour of defendants on the ground of same being forged‑‑‑Trial Court decreed the suit‑‑­Appellate Court .set aside the decree and dismissed the suit, which judgment was upheld by High Court in revision‑‑‑Validity‑‑‑Registered sale‑deed had been executed on 17‑8‑1963, whereas plaintiffs had filed suit on 17‑3‑1984‑‑‑Such inaction on the part of plaintiffs for about 20 years went a long way to attach sanctity to sale‑deed‑‑‑Possession of respondents over disputed land amply supported the authenticity of registered sale‑deed, thus, non‑examination of its attesting witnesses was not fatal‑‑‑Plaintiffs' witness had admitted that thumb‑impression on sale‑deed appeared to be that of their father‑‑‑Plaintiffs could not make mileage from report of finger expert as thumb‑impression of their father affixed on disputed power of attorney had been sent to finger expert for comparison with his thumb‑impression on sale-­deed‑‑‑No concrete instance of misreading or non‑reading of evidence had been highlighted by plaintiffs‑‑‑Supreme Court dismissed the petition and refused to grant leave to appeal.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.17(2)‑‑‑Registered sale‑deed‑‑‑Execution, proof of‑‑‑Non‑examination of attesting witnesses‑‑‑Effect‑‑‑Where sale‑deed was registered document and purchaser was in possession of disputed land on the 'basis thereof, then non‑examination of its attesting witnesses would not be fatal.

Syed Sardar Shah Bokhari, Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record for Petitioners.

Rana Abdul Hamid, Advocate Supreme Court and Walayat Umar, Advocate‑on‑Record for Respondents.

Date of hearing: 4th March, 2002.

2002 S C M R 1394

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

HABIB AHMED ‑‑‑Petitioner

versus

MUHAMMAD ASLAM alias LASHKAR‑‑‑Respondent

Criminal Petition No.561‑L of 2001, decided on 14th February, 2002.

(On appeal from the judgment dated 28‑6‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 1181 of 1999 and Criminal Revision No.645 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑­Normal sentence of death for the murder had been withheld by the Courts below for the reason that apart from certain other intriguing in circumstances the occurrence was not the result of pre‑concert‑‑‑Reason for awarding lesser sentence to accused was well‑founded‑‑‑No case for interference was made out‑‑‑Supreme Court declined leave to appeal to the complainant accordingly.

Abdul Sattar Ali Chaudhry, Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioner.

Nemo for Respondent

Date of hearing: 14th February, 2002

2002 S C M R 1395

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C.J. and Faqir Muhammad Khokhar, J

Messrs MULTICORP SA RE DE LAUSAME and others‑‑‑Petitioners

versus

DIRECTOR‑GENERAL, F.I.D. and others‑‑‑‑Respondents

Civil Petitions Nos.484, 486 and 487‑L of 1999, decided on 15th February 2002.

(On appeal from the judgment dated 6‑4‑1999 of the Lahore High Court passed in Writ Petition No.5968 to 5970 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.185(3) & 199‑‑‑Petition for leave to appeal against interim order of High Court passed in Constitutional petition calling comments from respondents‑‑‑Maintainability‑‑‑High Court through impugned order had not decided in any manner directly or indirectly the controversy raised by petitioners in Constitutional petitions‑‑‑Impugned order was interim in nature and did not amount even to a judicial pronouncement on any dispute or point raised in Constitutional petitions‑‑‑Supreme Court declined to interfere in the same and dismissed the petitions and refused to grant leave to appeal.

M.A. Qureshi, Advocate‑on‑Record for Petitioners.

Date of hearing: 15th February, 2002.

2002 S C M R 1397

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

ZUBAIDA BEGUM‑‑‑‑Petitioner

versus

MUHAMMAD TARIQ alias BILLU and others‑‑‑‑Respondents

Criminal Petition No.340‑L of 2001, decided on 12th February, 2002.

(On appeal from the judgment, dated 30‑4‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos.57 and 340 of 1995 and Murder Reference No. 125 of 1995).

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sudden fight‑‑­Converting death penalty into life imprisonment‑‑‑Validity‑‑‑Incident took place as a result of impulsive action in heat of passion upon a sudden quarrel‑‑‑High Court had rightly awarded lesser sentence‑‑‑Leave to appeal was refused.

Rafique Amjad Bajwa, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 12th February, 2002.

2002 S C M R 1398

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

IMAM BAKHSH‑‑‑‑Applicants

versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and others‑‑‑‑Respondents

Civil Miscellaneous Application Nos.269‑L, 270‑L of 2000 in Civil Petitions Nos.545‑L and 546‑L of 1999, decided on 7th March, 2002.

(On appeal from the order, dated 8‑2‑1999 of the Lahore High Court, Multan Bench, Multan passed in I.C.As. Nos. 17 and 18 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Supreme Court Rules, 1980, O.XV, R.5‑‑‑Dismissal , of petitions for leave to appeal for non‑prosecution‑‑‑Applications for restoration were barred by 73 days, wherein no ground muchless any valid plea had been set up for condonation of delay‑‑‑Supreme Court dismissed both the applications as barred by time.

Applicant in person (in both C.M.As.)

Nemo for Respondents (in both C. M. As.)

Date of hearing: 7th March, 2002.

2002 S C M R 1399

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

AHMED ‑‑‑‑ Petitioner

versus

THE STATE and another‑‑‑‑Respondents

Criminal Petition No.423‑I of 2001, decided on 1st April, 2002.

(On appeal from the judgment dated 28‑5‑2001 of the Lahore High Court passed in Criminal Appeal No.840 of 1998).

Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973) Art. 185(3)‑‑‑Sudden fight‑‑­Acquittal of accused‑‑‑Story of F.I.R. not proved‑‑‑Trial Court convicted the accused for life imprisonment whereas High Court acquitted him‑‑­Validity‑‑‑High Court had rightly held that the incident did not take place in the manner as mentioned in F.I.R. and assailant party did not have any intention to commit murder‑‑‑Judgment passed by High Court was based on correct and elaborate appraisal of evidence which satisfied the principles laid down for safe administration of criminal justice‑‑‑Leave to appeal was refused.

Mian Ghulam Rasool, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 1st April, 2002.

2002 S C M R 1401

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ.

CIVIL AVIATION AUTHORITY‑‑‑Petitioner

versus

ASHFAQ AHMED and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.1587‑L of 2000, decided on 21st February, 2002.

(On appeal from the judgment, dated 15‑7‑1999 of the Lahore High Court, Lahore, passed in Writ Petition No. 1500 of 1976).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3) & 199‑‑‑High Court allowing amendment in Constitutional petition‑‑‑Validity‑‑‑Supreme Court with the consent of parties disposed of the petition as withdrawn with direction that High Court would decide Constitutional petition expeditiously and petitioner would be at liberty to raise, factual and legal pleas against maintainability or otherwise of Constitutional petition including those already raised in reply to application for amendment.

Talib H. Rizvi, Senior Advocate Supreme Court with C.M. Lateef, Advocate‑on‑Record for Petitioner.

A.K. Dogar, Advocate Supreme Court and Jehangir A. Jhoja, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Respondents.

Muhammad Rashid Ahmed, Advocate Supreme Court for Respondent No.49.

Naeem Akhtar, Advocate Supreme Court for Respondent No.52.

Date of hearing: 21st February, 2002.

2002 S C M R 1403

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

GHAZANFAR ABBAS and others‑‑‑Petitioners

versus

THE STATE and others‑‑Respondents

Criminal Petitions Nos.617‑L, 618‑L and 629‑L of 2001', decided on 18th April, 2002.

(On appeal from the judgment dated 1‑8‑2001 of the Lahore High Court rendered in Criminal Appeal No.232 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/337A(iii)/337‑A(i)/34 & 308‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑Awarding of death penalty to minor‑‑‑Age of accused‑‑­Determination‑‑Plea raised by the accused was that he was minor at the time of commission of offence, therefore, death sentence was wrongly awarded to him‑‑‑Validity‑‑‑Controversy revolved around the age of the accused, therefore, to ensure safe administration of justice and to consider the question of minority of the accused leave to appeal was granted by Supreme Court.

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

‑‑‑‑S.417‑‑‑Penal Code (XLV of 1860), Ss.302/337A((iii)/337‑A(i)/308‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑­Specific role had been attributed to the accused‑‑‑Non‑reading of evidence‑‑­Contention of the prosecution was that a specific role had been attributed to the accused which had not been touched or considered by the Courts below at the time of acquittal of the accused which amounted to non‑reading of evidence and had caused miscarriage of justice‑‑‑Leave to appeal was granted by Supreme Court to consider the contention.

M.A. Zafar, Advocate Supreme Court for Petitioner.

Manzoor Hussain Butt, Advocate Supreme Court for Petitioners (in C.Ps. Nos.618 and 629‑L of 2001).

Date of hearing: 18th April, 2002.

2002 S C M R 1405

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Mst. HAJRAN BIBI and others‑‑‑Petitioners

versus

ABDUL GHANI‑‑‑Respondent

Civil Petition No. 1299‑1 of 1998, decided on 7th March, 2002.

(On appeal from the order, dated 14‑7‑1999 of the Lahore High Court, Lahore passed in Civil Revision No. 1667 of 1990).

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

‑‑‑‑S.115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Revision petition was dismissed on 11‑11‑1996 for non­prosecution‑‑‑Application for its restoration was made on 12‑7‑1999 with application for condonation of delay‑‑‑High Court dismissed application as barred by time‑‑‑Validity‑‑‑Application for restoration of revision petition had been made after 2 years and 8 months‑‑‑Petitioners had failed to explain delay of each day, which they were obliged ,to do‑‑‑Plea of non‑supply of copy of cause list to petitioners' counsel would hardly constitute a valid ground for condonation of delay in absence of an affidavit of the person concerned ‑‑‑Petitioners had failed to keep contact with their counsel and pursue revision petition diligently ‑‑‑Impugned judgment being unexceptionable Supreme Court dismissed the petition and refused to grant leave to appeal.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Affidavit‑ ‑Non‑supply of copy of cause list to counsel of a party would not constitute a valid ground for condonation of delay in the absence of an affidavit of the person concerned.

Ch. Muhammad Ashraf Wahalah, Advocate Supreme Court with Mehmaood A. Qureshi, Advocate‑on‑Record for Petitioners.

Khan Muhammad Bajwa, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Respondent.

Date of hearing: 7th March, 2002.

2002 S C M R 1407

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABID ALI ‑‑‑Petitioner

versus

THE STATE ‑‑‑Respondent

Criminal Petition No.224‑I of 2002, decided on 8th April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Failure to surrender to police‑‑‑Bail granted to the accused person was cancelled by High Court and the accused did not surrender himself to the police‑‑‑Effect‑‑‑Although the accused person was present before the Supreme Court, yet the Court declined to consider the plea of bail unless the accused would surrender to the police and was taken into custody‑‑‑Supreme Court directed to re‑list the case after surrender of the accused‑‑‑Bail was not allowed in circumstances.

Muhammad Farooq Bedar, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 8th April, 2002.

2002 S C M R 1408

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

JAN MUHAMMAD ‑‑‑Petitioner

versus

Mst. SALAMAT BIBI and others‑‑‑Respondents

Civil Petition No. 1475‑L of 1999, heard on 19th April, 2002.

(On appeal from the judgment dated 26‑7‑1999 of the Lahore High Court, Lahore, passed in Civil Revision No.850 of 1991).

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

‑‑‑‑Ss.42 & 54‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for declaration and permanent injunction‑‑‑Plaintiff claiming to be entitled to inherit entire estate of deceased as his sole legal heir/brother, challenged mutation of inheritance sanctioned in favour of defendants as daughters of deceased to extent of 2/3rd share as void and ineffective on his rights‑‑‑Plaintiffs alleged that defendants mother was married with one MD son of GM, who died in India before partition and defendants were born from the wedlock in India; and thereafter defendants' mother married with plaintiff's brother (deceased) namely MD son of ID‑‑‑Trial Court decreed the suit‑‑‑Appellate Court set aside the decree and dismissed the suit, which decision was upheld by High Court in revision‑‑‑Validity‑‑‑Plaintiffs could not prove that defendants were the daughters of said MD son of GM, with whom their mother had married in India‑‑‑Both the Courts below had given much weight to defendants' evidence being more relevant in comparison to the plaintiff's evidence and had rightly found the defendants to be the daughters of deceased‑‑‑Appellate Court had correctly appreciated and believed the evidence of two defendants' witnesses hailing from same village, where marriage of defendants' mother had taken place with MD son of ID‑‑‑Defendants had placed on record copies of Nikahnamas and identity cards to establish that they were daughters of MD (brother of plaintiff)‑‑‑Copy of Nikahnama produced did not require production of witnesses to prove the same‑‑‑Inheritance mutation had been sanctioned by Revenue Officer in "Jalsa Aam" after having verified that defendants were daughters of deceased MD ‑‑‑Lambardar in whose presence mutation was attested had supported the defendants' version‑‑‑Plaintiff had not challenged inheritance mutation before revenue hierarchy, which remedy was available to him according to law‑‑‑Plaintiff could not point out any illegality in impugned judgment justifying interference by Supreme Court‑‑‑Petition was dismissed and leave to appeal was refused in circumstances.

Rasul Bibi v. Waryam 1992 SCMR 1520 ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.5‑‑‑Registration of marriage ‑‑‑Nikahnama, proof of‑‑‑Copy of Nikahnama produced would not require production of witnesses to prove the same.

Ch. Muhammad Abdullah, Advocate Supreme Court for Petitioner.

Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.

Date of hearing: 19th April, 2002.

2002 S C M R 1412

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

ATTA ULLAH‑‑‑‑Petitioner

versus

THE STATE‑‑‑‑Respondent

Criminal Petition No.192‑L of 2002, decided on 17th April, 2002.

(On appeal from the judgment dated 18‑2‑2002 passed by Lahore High Court in Criminal Miscellaneous No.45‑B of 2002).

Criminal Procedure Code (V of 1898)‑‑

‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/336/337‑A(vi)/337‑F(i)‑‑­Bail, grant of‑‑‑Out of three injured persons only one had got himself medically examined‑‑‑Injured prosecution witness had totally exonerated the accused‑‑‑Accused had been in judicial lock‑up for the last one year‑‑‑Bail was allowed in circumstances.

Kh. Ahmed Tariq Rahim, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record for Petitioner.

Abdul Samad Hashmi, Advocate Supreme Court for the State.

Date of hearing: 17th April, 2002.

2002 S C M R 1413

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

FAZAL DIN and others‑‑‑Petitioners

versus

ADDITIONAL COMMISSIONER (REVENUE)/NOTIFIED OFFICER and others‑‑‑Respondents

Civil Petition No.432‑L of 2002, decided on 6th February, 2002.

(On appeal from the judgment dated 21‑1‑2002 of the Lahore High Court, Lahore passed in Writ Petition No. 13‑R of 1993).

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss.10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Mukhbari application after repeal of Settlement Laws ‑‑‑Maintainability‑‑­Settlement Commissioner/Notified Officer on Mukhbari application made in year 1976 passed order under Ss. 10 & 11 of Displaced Persons (Land Settlement) Act, 1958 cancelling the allotment of claim‑holders‑‑­Constitutional petition filed against cancellation order was dismissed by High Court‑‑‑Contention of petitioners was that Settlement Commissioner/Notified Officer had no jurisdiction to entertain Mukhbari application in year 1976 after repeal of Settlement Laws as it was not a case of pending proceedings; and that Settlement Authorities under Ss. 10 & 11 of Displaced Persons (Land Settlement) Act, 1958, could not question validity or correctness of order of Claims Officer on merits regarding verification of claims as per rule laid down in the case of Muhammad Siddique and others v. Abdul Majeed and others (1999 SCMR 2674), unless it was shown that such claims were never registered and verified and were bogus‑‑‑Supreme Court granted leave to appeal to examine and consider said points.

Muhammad Siddique and others v. Abdul Majeed and others 1999 SCMR 2674 ref.

Malik Muhammad Qayyum, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th February, 2002.

2002 SCMR 1415

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

ABDUL REHMAN‑‑‑Petitioner

versus

JAVED and 2 others‑‑‑Respondents

Criminal Petition No.815‑L of 2001, decided on 15th April, 2002.

(On appeal from the order dated 19‑11‑2001 of the Lahore High Court. Lahore, passed in Criminal Miscellaneous No.6290‑B of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497(2) & 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑­Constitution of Pakistan (1973), Art, 185(3)‑‑‑Bail, cancellation of‑‑‑Case of further inquiry ‑‑‑Lalkara and firing in the air‑‑‑Accused persons were attributed role of raising of Lalkara and firing in air without aiming at the complainant or anyone else‑‑‑Bail was allowed by High Court to the accused persons on the ground of further inquiry‑‑‑Validity‑‑‑Accused persons if had any intention to kill the complainant or to dispossess him from the land, there was nobody to prevent the accused persons from doing so‑‑‑High Court had rightly held the role of the accused persons to be that of further inquiry‑­‑Supreme Court declined to interfere with the bail granted by High Court to the accused persons‑‑‑Leave to appeal was refused.

Mirza Masood‑ur‑Rehman, Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner

Nemo for Respondents.

Date of hearing: 15th April, 2002.

2002 S C M R 1417

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

Mst. FATIMA BIBI and others‑‑‑Petitioners

versus

Mst. SAKINA BIBI and others‑‑‑Respondents

Civil Petition No.471 of 1999, decided on 6th March, 2002.

(On appeal from the order, dated 6‑4‑1999 passed by Lahore High Court, Lahore in Civil Revision No.265 of 1999).

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O. XXXIX, Rr.l & 2‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Temporary injunction, grant of‑‑‑Suit for declaration and permanent injunction‑‑‑Plaintiffs claimed to be joint owners of suit‑land and in physical possession of a portion thereof, wherein they had put up a brick‑kiln for the last 20 years and contended that they were apprehending interference with their such possession and alienation of suit land by the defendants‑‑‑Plaintiffs' application for temporary injunction was granted by Trial Court‑‑‑Appellate Court set aside the order of Trial Court and High Court upheld the same in revision‑‑­Validity‑‑‑Plaintiffs had been in physical possession of suit‑land, wherein they had established a brick‑kiln, which was in operation‑‑‑Plaintiffs' claim was tenable and prima facie, any alienation of suit‑land by defendants would complicate things, which might lead to multiplicity of civil and even criminal proceedings‑‑‑Balance of convenience was in favour of plaintiffs and refusal of protection to parties during pendency of proceedings could lead to irreparable loss‑‑‑Supreme Court converted the petition into appeal and accepted the same while setting aside the impugned orders and restoring the order of Trial Court.

Hassan Ahmad Kanwar, Advocate Supreme Court instructed by S. Inayat Hussain, Advocate‑on‑Record for Petitioners.

Malik Noor Muhammad Awan, Advocate Supreme Court and S.A.A. Jafri, Advocate‑on‑Record for Respondents.

Date of hearing: 6th March, 2002.

2002 S C M R 1419

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Rana Bhagwandas and Abdul Hameed Dogar, JJ

Messrs HUFFAZ SEAMLEN PIPE INDUSTRIES LTD. and 2 others‑‑‑Petitioners

versus

Messrs SECURITY LEASING CORPORATION LTD. ‑‑‑Respondent

Civil Petition No.292‑K of 2001, decided on 6th December, 2001.

(On appeal from the judgment dated 14‑2‑2001 of High Court of Sindh, Karachi passed in First Appeal No. 123 of 2000).

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

‑‑‑‑S. 9‑‑‑Contract Act (IX of 1872), Ss. 126 & 128‑‑‑Recovery of Bank loan‑‑‑Guarantor, liability of‑‑‑Scope‑‑‑Creditor, in an action against a guarantor, is only required to establish the liability of the principal debtor and occurrence of default or breach of the terms leading to the liability‑‑­Guarantor cannot resort to technicalities to defeat the claim of the creditor‑‑­Even where the contract becomes unenforceable against the principal debtor, the guarantor would still be liable for the surety he had executed, unless there was any covenant to the contrary.

(b) Baking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 21‑‑‑Appeal‑‑‑Bar to file appeal against any interlocutory order of Banking Court‑‑‑Object‑‑‑Intention of the Legislature is that such disputes are resolved as early as possible.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art 185(3)‑‑‑Leave to appeal, grant of‑‑‑Scope‑‑‑Clean hands‑‑­Concurrent findings of fact by the Courts below‑‑‑Provisions of Art. 185(3) of the Constitution could not be invoked for discretionary/equitable relief against concurrent findings of fact, particularly when the petitioners have not come to the Court with clean hands.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for recovery of Bank loan‑‑‑Concurrent findings of fact by the Courts below‑‑‑Principal borrower did not contest the matter while the guarantor tiled application for leave to defend the suit which was dismissed by the Banking Court as well as by High Court‑‑‑Validity‑‑‑Principal borrower had received the amount from the financial institution and also leased assets, yet it was not paying the dues of the institution on the basis of misconceived pleas and technicalities which was against law and equity‑‑‑Only object of the borrower in the present case was to prolong the proceedings and to avoid payment‑‑­Supreme Court declined to interfere with the concurrent findings of fact by the Courts below‑‑‑Leave to appeal was refused.

Mushtaq Ahmad Memon. Advocate Supreme Court and K. A. Wahab, Advocate‑on‑Record for Petitioners.

Abdul Latif Channa, Advocate Supreme Court and Ahmadullah Farooqui, Advocate‑on‑Record for Respondent.

Date of hearing: 6th December, 2001.

2002 S C M R 1425

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

MUHAMMAD DILBAR alias MUHAMMAD BOOTA and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.185 of 2001, decided on 30th May, 2002.

(On appeal from the judgment dated 9‑2‑2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeal No. 1, of 1997).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 337‑A(ii) & 337‑F(i)‑‑‑Constitution of Pakistan {1973), Art. 185(3)‑‑‑Sentence‑‑‑Leave to appeal was granted by the Supreme Court to consider the points as to whether the guilt of the accused had been proved beyond doubt; whether the Trial Court evaluated/appraised the evidence in the correct perspective and in accordance with rules laid down by the Supreme Court from time to time for appreciation of evidence in criminal cases; whether the Courts below had not properly considered the plea of defence and what were the legal implications of the said plea over the guilt of the accused and whether in the circumstances of the case the penalty of death was the only punishment that could legally be imposed or ends of justice would have met if the sentence of life imprisonment was awarded.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 100, 302/34, 337‑A(ii) & 337‑F(i)‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Appeal to Supreme Court‑‑‑Private defence, right of‑‑‑Plea for reduction in sentence‑‑‑Accused, in appeal before Supreme Court, had not challenged the conviction on merits but had only urged for reduction of sentence‑‑‑Court had to examine the version of accused keeping the same in juxtaposition to the case of prosecution‑‑‑Mere assertion of the accused that it was the complainant party who first attacked and caused injuries to the accused side, in the absence of any medical report to such effect, would be ot', no avail to them‑‑‑If the accused party had received injuries, in the incident, " it was on their part that they should have disclosed the same to the Magistrate at the time of remand and asked for medical examination and certificate‑‑‑By not agitating so before any of the concerned Authorities, it stood established on record that they were probably not injured at all and raised a false plea‑‑‑Record in the present case, showed that the complainant party and the accused party had a joint Khata of disputed land which was no: yet partitioned, in such circumstances. accused party was not justified to act in the exercise of right of self‑defence of their property‑‑‑Right of private defence of body or property would extend only when a clear danger to person or property became imminent‑‑‑Number and nature of the injuries received by the complainant party suggested that they were the victims of the murderous assault and there was nothing on record that anyone from the complainant side was armed with lethal weapon just to create an apprehension in the mind of the accused person that they would be attacked and there was no option for them but to act in self‑defence‑‑‑When a specific plea of self‑defence was raised, the onus to prove such plea lay upon the party claiming the same which in the present case, the accused had failed to do‑‑‑Brutal and atrocious manner in which the accused had killed the deceased and caused severe injuries to the prosecution witnesses did not call for any leniency in the sentence‑‑‑Trial Court as well as the High Court had elaborately discussed every aspect of the case and had dealt with the same in detail, leaving no room for further consideration‑‑‑Finding no good reasons to interfere with the concurrent findings of the Courts below, Supreme Court, maintained the judgment and dismissed the appeal.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 100‑‑‑Private defence, right of‑‑‑Onus to prove‑‑‑When a specific plea of sell‑defence was raised. the onus to prove the same lay upon the party claiming the same.

(d) Penal Code (XLV of 1860)‑‑‑

‑S. 100‑‑‑Private defence, right of‑‑‑Such right would extend only when a clear danger to person or property becomes imminent.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellants.

Malik Muhammad Nawaz. Advocate Supreme Court for the Complainant.

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

Date of hearing: 30th May, 2002.

2002 S C M R 1431

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmad Khan and Khalil‑ur‑Rehman Ramday, JJ

ANEES AHMAD alias MUHAMMAD UMER and another‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No‑332 and Jail Petition No. 187 of 2001. decided on 11th June. 2002.

(On appeal from the judgment dated 27‑1‑1998 passed by Lahore High Court, Lahore in Criminal Appeal No.23 of 1995 (ATSC) and Murder Reference No.9 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 392‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal to Supreme Court‑‑‑Reappraisal of evidence‑‑‑Murder‑‑‑Common intention‑‑­Guilt against accused falling within the mischief of Ss.392, 302 & 34, P.P.C. fully stood established as accused's counsel had opted not to press the appeal on merits but to pray for reduction in the quantum of sentence‑‑­Accused alongwith co‑accused committed crime of snatching motorcycle from the deceased being fully armed with deadly weapons and their such action fell within the mischief of S.392, P.P.C. and after completion of said offence when both the accused were fleeing away, the deceased alongwith his companions as a last resort attempted to resist the accused so that they may not take away their motorcycle‑‑‑Accused sitting on the rear seat, took out a pistol from his trouser and opened fire which landed on the vital part of the person of the deceased and proved sufficient to cause his death‑‑‑Action of both the accused to the extent of snatching of the motorcycle would be considered in furtherance of common intention but for the murder of the deceased co‑accused would not be responsible because he was driving the motorcycle being seated on the front seat and it was the accused who opened the fire upon the deceased‑‑‑Record showed that co‑accused had no knowledge that the accused was armed with a pistol‑‑‑Evidence had not shown that accused had tired upon the deceased at the instigation of the co­-accused‑‑‑Accused alone, in circumstances, was responsible for the offence of murder‑‑‑Offence committed by the co‑accused fell within the mischief of S.392, P.P.C. as he was not responsible for the murder of the deceased.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Appeal to Supreme Court‑‑‑Intentional murder‑‑‑Normal penalty‑‑‑Leniency in punishment on ground of age‑‑‑Principles‑‑‑Provision of S.302(b), P.P.C. envisaged sentence of death or life imprisonment as Tazir having regard to ‑the facts and circumstances of the case‑‑‑Normal penalty for the commission of offence of murder was death and when material available on record spelt out the circumstances showing that the accused person had committed the murder intentionally then he could not be awarded lesser sentence‑‑‑Where record showed that the accused could conveniently be stamped to be a person who had committed intentional murder without any justification he deserved to be dealt with strictly according to law and adequate sentence should be awarded to him which may serve deterrence to like‑minded persons instead of granting lesser punishment without justification‑‑‑Accused aged 26 years having committed offence of robbery and then murdering the deceased m brutal manner, as such being a hardened criminal was not entitled to any leniency on the ground of age.

Muhammad Afzal v Ghulam Asghar and others PLD 2000 SC 12 ref.

Arshad Ali Chaudhry, Advocate Supreme Court for Appellant (in Cr.A. No.332 of 2001).

Nemo for Petitioner (in J. P. No. 187 of 2001).

Dil Muhammad Tarar, Advocate Supreme Court and Rao M. Yousuf Khan, Advocate‑on‑Record (absent) for the State (in both Cases).

Date hearing: 11th June, 2002.

2002 S C M R 1439

[Supreme Court of Pakistan]

Present : Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

ADREES‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.210 of 2000, decided on 24th May, 2002.

(On appeal from the judgment dated 12‑11‑1998, of the Lahore High Court, Lahore, passed in Criminal Appeal No.1087 of 1992 and Murder Reference No.38 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to the convict, against the judgment of High Court, whereby the death sentence awarded to him was confirmed and his appeal against the judgment of Additional Sessions Judge was dismissed.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Reappraisal of evidence‑‑‑Occurrence was unseen as both the eye‑witnesses were not proved to be present on the 'spot; manner of occurrence was highly implausible; the names of the assailants were not disclosed despite the fact that they were known to the witnesses and were identified on the spot and above all the identification parade was totally immaterial, insignificant and uncalled for as the witnesses knew the assailants‑‑‑Both the Courts below had failed to appreciate the evidence and to attend to material aspects of the case rendering the story to be highly doubtful‑‑‑Appeal of the accused was accepted by the Supreme Court, conviction recorded and sentence of death imposed on him by both the Courts were set aside and accused was acquitted of the charge under S. 302/34, P.P.C. in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 22‑‑‑Identification parade‑‑‑Assailants were known to the complainant and were admittedly identified on the spot‑‑‑Conduct of identification parade, in circumstances, was illegal‑‑‑Such identification parade would loose its significance and was not a corroboratory piece of evidence ‑‑‑Identification parade was never conducted about culprits who were already known to the witnesses.

Malik Noor M. Awan, Advocate Supreme Court for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 24th May, 2002.

2002 S C M R 1444

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

MUHAMMAD ALAM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.25 of 2000, decided on 29th May, 2002.

(On appeal from judgment dated 16‑12‑1998, passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.219 of 1996 and Murder Reference No.265 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Sentence quantum of‑‑‑Reappraisal of evidence‑‑‑Leave to appeal was, granted by the Supreme Court for reappraisal of evidence for the purposes of determining the quantum of sentence and in the interest of safe administration of justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Constitution of Pakistan (1973), Art.185‑‑­Reappraisal of evidence‑‑‑Plea for reduction in sentence‑‑‑Incident had occurred in the broad daylight‑‑‑Accused who was real maternal uncle of the deceased had taken the plea in his statement under S.342, Cr.P.C. that the incident was a sudden fight and deceased had made a murderous assault on him with a Kassi and he, in order to save himself and in the right of his self­-defence fired which hit the deceased and that the complainant and prosecution witnesses were not present at the time of occurrence at the spot‑‑‑Courts below had disbelieved the version of the accused and found the ocular account furnished by the prosecution witnesses to be natural. trustworthy and reliable‑‑‑One of the witnesses was also real nephew of the accused and the Courts below rightly believed his version‑‑‑Accused through his brutal act had caused the cold‑blooded murder of his nephew on a very petty issue‑‑‑No reason existed to disbelieve the prosecution case and no mitigating circumstance was available on record to consider the question of quantum of sentence in the case‑‑‑Prosecution having successfully brought home the guilt of the accused, appeal of the accused was dismissed by the Supreme Court.

Ainual Haq, Advocate Supreme Court with M.A. Zaidi, Advocate­-on‑Record for Appellant.

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

Date of hearing: 29th May. 2002.

2002 S C M R 1146

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

FAIZ MUHAMMAD and 7 others‑‑‑‑Petitioners

versus

AISHA BIBI and 6 others‑‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1694‑L of 1999, decided on 23rd October 2001.

(On appeal from the judgment of the Lahore High Court, Lahore dated 27‑9‑1999 passed in Civil Revision No. 1831 of 1984).

Islamic law‑‑‑

‑‑‑‑Gift‑‑‑Proof‑‑‑Pedigree‑table‑‑‑Plaintiff asserted that her mother was not a limited other of the suit land, rather the land was gifted to her by her husband in lieu of dower‑‑‑To prove the ownership only document produced was pedigree‑table‑‑‑Trial Court decreed the suit whereas, the Appellate Court allowed the appeal‑‑‑High Court dismissed the revision petition filed against the judgment and decree passed by the Appellate Court ‑‑‑Validity‑‑­Neither there was any documentary evidence in support of said plea nor oral evidence in that behalf was confidence‑inspiring‑‑‑Mere entry in the side box of the pedigree‑table would not make the mother of the plaintiff full owner of the estate unless there was other substantial evidence to that effect‑‑­Appellate Court and the High Court after scrutinizing the evidence on record had rightly found the mother of the plaintiff to be 'limited owner and the legacy of the original owner of the estate was properly distributed amongst his legal heirs which warranted no interference by Supreme Court.

Shamim Abbas Bokhari, Advocate Supreme Court and S. Abul Aasim Jaferi, Advocate‑on‑Record for Petitioners.

Qamar Riaz Hussain Basra, Advocate Supreme Court and C.M. Lateef, Advocate‑on‑Record for Respondents.

Date of hearing: 23rd October, 2001.

2002 S C M R 1447

[Supreme Court of Pakistan

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmad Khan and Kkalil‑ur‑Rehman Ramday, JJ

SHER MUHAMMAD ‑‑‑Petitioner

versus

QUTABU and others‑‑‑Respondents

Civil Petition No. 1225‑L of 1999, decided on 31st May, 2002.

(On appeal from the judgment/order, dated 4th June, 1999 passed by Lahore High Court, Lahore in R.S.A. No.235 of 1981).

Transfer of Property Act (IV of 1882)‑­

‑‑‑‑S. 41‑‑‑Protection under S.41, Transfer of Property Act, 18 Conditions‑‑‑Bona fide transferee while seeking protection of S.41, Transfer of Property Act, 1882 is required to prove on record that he entered into transaction of sale in good faith having believed that the transferor was the ostensible owner of the property‑‑‑When the conditions as laid down under S.41 of the Act namely that the transferor was the ostensible owner, and he was so by consent, express or implied, of the real owner, the transfer was for consideration and the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer, the transferee's rights were fully protected.

If the transferee acts, after taking reasonable care to ascertain that the transferor has acted in good faith, then his rights are protected.

A bona fide transferee while seeking protection of section 41 of the Transfer of Property Act, 1882 is required to prove on record that he entered into transaction of sale in good faith having believed that the transferor is the ostensible owner of the property. As far as the question of being an ostensible owner is concerned it being a question of fact is required to be determined on the basis of evidence. In the present case there is no controversy between the parties that transferor remained recorded owner of the property in the Revenue Record despite of transferring the same through a gift to the petitioner. Similarly petitioner was not in physical cultivatory possession of the land because other persons were cultivating the same. Undoubtedly on the basis of these two aspects of the case one can draw an inference that transferor was ostensible owner. As such on having seen entries in the Revenue Record in favour of transferor, purchasers purchased property in good faith for value. Thus the conditions laid down under section 41 of the Act namely that the transferor is the ostensible owner, and he is so by the consent, express or implied, of the real owner, the transfer is for consideration and the transferee has acted in good faith taking reasonable care to ascertain that the transferor had power to transfer, having been fulfilled the purchasers rights are fully protected.

Rana Abdul Rahim Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner.

Ch. Aamir Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing: 31st May, 2002.

2002 S C M R 1452

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, and Syed Deedar Hussain Shah, JJ

UMAR DRAZ and another‑‑‑Petitioners

versus

THE STATE through Advocate‑General, Punjab‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 141‑L of 2002, decided on 22nd May, 2002.

(On appeal from order dated 7‑5‑2002 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.775/M of 2002 in Criminal Appeal No.648 of 1992).

Drugs Act (XXXI of 1976)‑‑‑

‑‑Ss. 23 & 27‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Seizure of drugs from the shop of accused persons which were misbranded, unregistered and without warranty‑‑‑Accused had confessed their guilt before the Trial Court and their statements in that regard were also recorded‑‑‑Trial' Court had proceeded to convict the absconder/accused persons and sentenced them in accordance with law‑‑‑Neither the accused persons nor the counsel appeared at the time of hearing of the main appeal and the High Court, after hearing the law officer, dismissed the appeal maintaining the conviction and sentence awarded to the absconding accused persons‑‑‑Trial Court had already shown leniency in the matter of sentence‑‑‑Judgment of the High Court was well‑reasoned and did not suffer. from any legal or factual infirmity‑‑‑No substantial question of law of public importance was involved in the case‑‑‑Petition for leave to appeal against judgment of the High Court was dismissed in circumstances.

S.M. Rasheed, Advocate Supreme Court and Muhammad Ilyas Siddiqui, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on-­Record for Petitioners.

Nemo for the State.

Date of hearing: 22nd May, 2002.

2002 S C M R 1455

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

IJAZ HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.339 of 2000, decided on 21st June, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 25‑10‑1999 passed in Criminal Appeal No.1015 and Murder Reference No.296 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Age of accused‑‑‑Sentence, quantum of‑‑‑Special pleas of minority of the accused at the time of committing offence and mental ailment of the accused‑‑‑Burden of proof‑‑‑Age of accused mentioned in his statement under S.342, Cr.P.C. if remained unrebutted, the presumption of correctness would be attached to the age given in the said statement which was a part of judicial record‑‑‑Where two views relating to the age of accused were possible, the view in favour of the accused was normally to be accepted‑‑­Mere fact that accused was less than eighteen years of age at the time of occurrence was not sufficient to withhold the normal penalty of death under S.302(b), P.P.C. and similarly, unless it was specifically established on record that accused was suffering from mental ailment at the time of occurrence, it would not be a valid ground for lesser punishment.

The special plea of minority if is taken by the accused, the burden shall be on the accused to establish his minority but in the present case the age of the accused mentioned in his statement under section 342, Cr.P.C. remained unrebutted as neither the prosecution nor the defence has brought any evidence on record to determine the correct age of the accused, therefore, the age available on the judicial record would not be ignorable.

The age of an accused mentioned in his statement under section 342, Cr.P.C. if remained unrebutted, the presumption of correctness would be attached to the age given in the statement under section 342, Cr.P.C. which is a part of judicial record.

Where two views relating to the age of accused were possible, the view in favour of the accused was normally to be accepted. No evidence on record appearing in rebuttal to show that accused was major, therefore, the doubt in the matter of age would be resolved in his favour and the age of accused given in his statement under section 342, Cr.P.C. would be accepted.

Mere fact that accused was less than eighteen years of age at the time of occurrence, was not sufficient to withhold the normal penalty of death under section. 302(b), P.P.C. and similarly, unless it was specifically established on record that accused was suffering from mental ailment at the time of occurrence, it would not be a valid ground for lesser punishment.

Umar Hayat v. Jahangir 2002 SCMR 629 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Juvenile Justice , System Ordinance (XXII of 2000), Ss.2(b) & 12‑‑‑Age of accused‑‑‑Occurrence, in the present case, had taken place before the promulgation of Juvenile Justice System Ordinance, 2000 under which the trial of a person less than the age of 18 years is held by the Special Court‑‑‑Juvenile offender, in circumstances, was not entitled to claim lesser penalty on a capital charge as of right under the Juvenile Justice System Ordinance, 2000‑‑‑Trial in the case having been conducted before the promulgation of the said Ordinance, procedure under the Ordinance for determination of age of the accused would not be relevant.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 97‑‑‑Grave and sudden provocation‑‑‑Sentence, reduction in‑‑‑Circumstances of the case under which the occurrence had taken place showed that shortly before the incident something unpleasant had happened as a result of which accused was provoked and while loosing self‑control he reacted and inflicted injuries on the sensitive part of the body of the deceased‑‑‑Manner in which the occurrence took place made the motive given by the prosecution doubtful to be the actual cause of murder‑‑‑Supreme Court, in view of the possibility of element of provocation and suddenness, reduced the sentence of accused from death to imprisonment for life but declined the benefit of S.382‑B, Cr.P.C.

Ijaz Hussian Batalvi, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellant.

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

Date of hearing: 8th May, 2002.

2002 S C M R 1461

[Supreme Court of Pakistan]

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

MIRZA ALI KHAN ‑‑‑Petitioner

versus

SESSIONS JUDGE, PESHAWAR and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No. 19‑P of 1997, decided on 17th June,2002.

(On appeal from judgment dated 21‑12‑1996 passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous No.52 of 1996).

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 499 & 500‑‑‑Criminal Procedure Code (V of 1898), S.179‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Defamation‑‑‑Complaint under Ss.499/500, P.P.C. against the petitioner was filed in the Court of Magistrate at ' P' on the ground that he had made baseless complaint before the Chief Minister on which inquiry was ordered which continued for two years and respondent suffered damage to his reputation and defamation to his family‑‑‑Application levelling allegations against the respondent was stated to have been handed over to the Advisor of the Chief Minister at place 'D'‑‑­Petitioner submitted an application during the trial before the Magistrate raising objection therein that the Court of Magistrate at 'P' had no jurisdiction to proceed with the case‑‑ ‑Magistrate accepted the application of the petitioner with finding that the Court at 'P' had no jurisdiction to proceed with the complaint and as such the complaint was returned to the complainant with direction to file the same before the proper Court at 'D'‑‑‑Validity‑‑­Application against the respondent levelling allegations was though handed over to the Adviser of the Chief Minister at place 'D' but all the necessary, steps thereupon were taken at 'P'‑‑‑Order of appointment of Inquiry Officer by the authorised officer was also issued from 'P' and the final order exonerating the respondent from the allegations made against him was also passed at 'P'‑‑‑No exception, therefore, could be taken to the direction to the Magistrate at 'P' to proceed with matter in accordance with law‑‑‑Judgment of the High Court was entirely in consonance with the settled principles of law and the provisions of the relevant statute‑‑‑No misreading or non‑reading of evidence or misconstruction of law or question of public importance having been found to be involved, petition for leave to appeal against judgment of the High Court was dismissed.

Mir Adam Khan. Advocate Supreme Court for Petitioner.

Khawaja Muhammad Khan, Advocate Supreme Court with S. Safdar Hussain, Advocate‑on‑Record for Respondent No. 1.

Ms. Mussarat Hilali. Addl. A.‑G. for the State.

Date of hearing: 17th June. 2002.

2002 S C M R 1464

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

GOVERNMENT OF PUNJAB, FOOD DEPARTMENT, through Secretary Food, Lahore and others‑‑‑Petitioners

versus

Messrs UNITED SUGAR MILLS, LTD. ‑‑‑Respondent

Civil Petition No.364‑L of 2001, decided on 5th June, 2002.

(On appeal from the judgment/order dated 6‑12‑2000 passed by Lahore High Court, Lahore in W.P. No.3100 of 1984).

West Pakistan Foodstuffs (Control) Act (XX of 1958)‑‑‑

‑‑‑‑Ss. 2(3) & 3‑‑‑Punjab Government Notification dated 31‑3‑1983‑‑­Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Non‑publication in the official Gazette of notification directing Sugar Mills to deposit certain amounts, calculated in accordance with the terms of said notification into an Export Fund created by the Federal Government‑‑‑Sugar Mill challenged the demand created by the notification through Constitutional petition before the High Court with the averments that demand made by the Provincial Government was illegal and without jurisdiction because the same was based on a notification which was not duly notified under S.2(3) of the Punjab Foodstuffs (Control) Act, 1958 and said notification having not been duly notified in the official Gazette same could not be treated as a notified order‑‑­High Court allowed the Constitutional petition by means of impugned judgment‑‑‑Contention of the Provincial Government was that Government had directed the publication of the notification in extraordinary Gazette but inadvertently the same had not been published; that non‑publication or delay in the publication would not be fatal and only for such reason the notification might not have been declared ineffective and invalid and that the object of publishing of a notification in the official Gazette was only to make the same public and facts remained that the respondent had the knowledge of the notification‑‑‑Leave to appeal was granted by the Supreme Court inter alia to examine the contentions of the Provincial Government.

Muhammad Siddique v. The Market Committee, Tandliawala 1983 SCMR 785 and Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180 ref.

Abdul Majid Sheikh, Advocate Supreme Court for Petitioners.

Maqbool Ellahi Malik, Advocate‑General Punjab (On Court's call).

Nemo for Respondent.

Date of hearing: 5th June, 2002.

2002 S C M R 1466

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

HAKIM ALI and others‑‑‑Petitioners

versus

JAGAN KHAN and others‑‑‑Respondents

Civil Petition No.966‑L of 2002, decided on 16th April, 2002.

(On appeal from the order dated 15‑6‑2002 of the Lahore High Court, Bahawalpur Bench in Civil Revision No. 81‑D/2002‑BWP).

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

‑‑‑S. 20‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Interpretation and scope of S.20, Canal and Drainage Act, 1873‑‑‑Application to Divisional Canal Officer for supply of water from a canal through watercourse or change of source of water supply of any land‑‑‑Procedure‑‑‑Due opportunity of hearing to the objector by the Divisional Canal Officer ‑‑‑Necessity‑‑­Confirmation or modification of decision of Divisional Canal Officer by Superintending Canal Officer‑‑Binding nature‑‑‑Request for change of watercourse having once been rejected by the Superintending Canal Officer, he could not review his order under law‑‑‑Superintending Canal Officer before review had not issued notice to all the shareholders of the Moga, such order in the absence of said shareholders was also violative of principles of natural justice and thus not maintainable‑‑‑Supreme Court declined to interfere with the concurrent findings of the Courts below and dismissed the petition for leave to appeal.

Section 20 of the Canal and Drainage Act, 1873 stipulates that whenever an application is made to a Divisional Canal Officer for supply of water from a canal through watercourse or change of source of water supply of any land and he considers it expedient, shall give notice to all persons interested including the landowners through whose land any link watercourse is to pass, to show cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed, or the source of supply be changed and after making enquiry on such day the Divisional Canal Officer shall determine, whether and on what conditions the said supply shall be conveyed through such watercourse or that the source of water supply shall be changed or the link watercourse shall be aligned and constructed.

After the announcement of the decision of the Divisional Canal Officer, if no objection is received or an application is received, then due opportunity of hearing is to be provided. It is thereafter that Superintending Canal Officer may confirm or modify that decision and such orders are binding on all persons responsible for the maintenance of the said water‑course. The request for change of watercourse, in the present case, was rejected by the S.C.O. and it was thereafter that matter was re‑opened on review application about which there was no such provision. Moreover, from the record as well as from the impugned order, it transpired that no notice was issued to all the shareholders of the Moga. Such order having been passed in absence of shareholders was violative of principle of natural justice and thus was not sustainable in law.

Since there were concurrent finding on the question of facts and law recorded by the lower Courts as such Supreme Court declined to interfere with the same. Moreover, no illegality in the impugned judgment of the High Court was pointed out which accordingly was maintained.

Hasnat Ahmad Khan, Advocate Supreme Court instructed by Faiz­ur‑Rehman, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th April, 2002.

2002 S C M R 1470

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

PAKISTAN TRANSPORT COMPANY LTD. ‑‑‑Petitioner

versus

WALAYAT KHAN through Legal Heirs‑‑‑Respondent

Civil Petition for Leave. to Appeal No. 1414‑L of 2001, decided on 21st June, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 21‑6‑1999 passed in Civil Revision No.640 of 1985).

Evacuee Property and Displaced Persons Laws (Repeal) (XIV of 1975)--

‑‑‑‑S. 2‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10, 11, 22 & 25‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Issue of allotment of evacuee land which had attained finality could not be re‑opened long after the repeal of Evacuee and Settlement Laws with effect from 1‑7‑1974 as the same was a past and closed transaction‑‑‑Assistant Commissioner, who was neither competent nor authorised to deal with the case as there were no proceedings pending before him nor case was remanded by the High Court or the Supreme Court on the cut off date had acted without jurisdiction to cancel the allotment‑‑‑Such act of the Assistant Commissioner was coram non judice and nullity in the eyes of law‑‑‑Civil Court, in circumstances, therefore had the requisite jurisdiction to determine the vires of such act and such jurisdiction was not barred‑‑‑Principles‑‑‑Petition for leave to appeal was dismissed.

Issue of allotment of evacuee land had attained finality and it could not be re‑opened long after the repeal of Evacuee and Settlement Laws with effect from 1st July, 1974. In fact it was a past and closed chapter. Assistant Commissioner was neither competent nor authorised to deal with the case as there was no proceeding pending before him nor remanded by the High Court or Supreme Court on the cut off date. Assistant Commissioner had acted without jurisdiction. His act in law was coram non judice and nullity in the eyes of law, therefore, Civil Court had the requisite jurisdiction to determine the vires of such act and such jurisdiction was not barred.

Displaced Persons (Compensation and .Rehabilitation) Act, 1958 does not grant unlimited powers to Settlement Authorities to bring all properties within their jurisdiction on their own findings. Order of the Settlement Authorities would be binding by virtue of sections 22 and 25 of the said Act in respect of matters, which the law intended should be decided by them only. An Administrative Officer, who is empowered to pass an order it certain circumstances exist, has no jurisdiction to determine these circumstances. Objective existence of these circumstances is an essential condition of the validity of his order in respect of every order passed by him. The Court can make an enquiry and if on finding that all the circumstances needed for passing an order were not present, it can declare the order to be void. Nevertheless, it is possible of course that Special Tribunal may be made the Judge of its own jurisdiction but this would be a very exceptional provision and one which should be made by altogether clear words. However, with respect to mala fides, jurisdiction of the Civil Court can never be taken away for a mala tide act is in its very nature an illegal and void act and the Civil Court can always pronounce an act to be mala tide and, therefore, void.

Abdul Rauf, v. Abdul Hamid Khan PLD 1965 SC 671 and Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 ref.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab for Petitioner.

Muhammad Taqi Khan, Advocate Supreme Court and Syed Abul Asim Jafri, Advocate‑on‑Record for Respondent.

Date of hearing: 21st June, 2002.

2002 S C M R 1473

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD AMIN‑‑ Petitioner

versus

M HAMMAD KHAN and others‑‑‑Respondents

Criminal Petition No.549‑L of 2001, decided on 23rd May, 2002.

(On appeal from the judgment/order dated 17‑7‑2001 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 82 of 1999 and Murder Reference No. 15 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appreciation of evidence‑‑‑Prosecution had based its case on the ocular testimony of prosecution witnesses, the recovery of incriminating articles i.e. crime weapon from the possession of the accused person; medical evidence and the motive‑‑‑High Court had discussed the evidence of the prosecution in depth following the principles of appreciation of evidence and ultimately discarded the same for convincing reasons‑‑‑On excluding the prosecution ;evidence front consideration there was no option for the Court except to decide the fate of the case on the statement of accused‑‑When the prosecution evidence stood rejected in totality then the statement of the accused had to be accepted‑‑‑ Petition for leave to appeal against judgment of High Court was dismissed.

State v. Muhammad Hanif 1992 SCMR 2047; Muhammad Yaqub v. State 2000 SCMR 1827 and Waseem‑ud‑Din v. The State 2001 SCMR 290 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302(c) & 100‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Grave and sudden provocation‑‑‑Appreciation of evidence‑‑‑High Court, for convincing, cogent and strong reasons had disbelieved the prosecution evidence‑‑‑Version of the accused that he got provoked on having seen the deceased (50/60) grappling with his mother (50) for the purpose of committing Zina with her was rightly followed by the High Court and accused was justificably convicted/sentenced under S.302(c), P.P.C.‑‑­Petition for leave to appeal against judgment of High Court was dismissed by the Supreme Court.

Abdul Haq v. The State PLD 1996 SC 1 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)(c)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Motive as alleged by the prosecution‑‑‑Not proved by the prosecution‑‑‑Mitigating circumstance for quantum of sentence‑‑‑Principle‑‑‑If the prosecution had succeeded in establishing the offence then presence of motive or no motive would not be a ground for awarding lesser punishment to the accused‑‑‑Such principle, however, would only be invoked when the prosecution had not alleged the motive but if the motive was alleged then it became its duty to prove the same‑‑‑If, however., prosecution failed to prove the motive so alleged and it had also not proved through convincing evidence that the accused had committed the crime charge against him then on considering non‑establishing of the motive to be a mitigating circumstance, sentence could be awarded to the accused charged for the murder having regard to the facts and circumstances of the case‑‑‑Petition for leave to appeal against judgment of High Court was dismissed by the Supreme Court.

Bilal Ahmad v. The State 1999 SCMR 869 and Anar Gul v. the State 1999 SCMR 2303 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss 302(b), 302(c) & 100‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑Grave and sudden provocation‑‑‑When conviction of accused was based on his own statement and the prosecution had not proved the motive as alleged against all the accused persons, conviction/sentence awarded to the accused to undergo R.I. for 25 years under S.302(c), P.P.C. deserved no interference by Supreme Court in view of its judgment in Muhammad Mansha v. The State 2001 SCMR 199‑‑‑Petition for leave to appeal was dismissed.

Muhammad Mansha v. The State 2001 SCMR 199 ref.

Rai Bashir Ahmad, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 23rd May, 2002.

2002 S C M R 1478

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Mian Muhammad Ajmal, JJ

ABDUL QADIR‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 5 others‑‑‑Respondents

Criminal Petition for Leave to Appeal No. 107‑K of 2001, decided on 4th February, 2002.

(On appeal from the order of the High Court of Sindh, Karachi dated 20‑11‑2001 passed in Constitution Petition No.2266/Criminal Bail Petition No. 1605 of 2001).

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

‑‑‑‑S. 24(d)‑‑‑Constitution of Pakistan (1973), Art.10‑‑‑Arrest‑‑‑Safeguards as to arrest and detention as provided by Art.10, Constitution of Pakistan (1973)‑‑‑Scope and extent‑‑‑Conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of S.24(d) of the National Accountability Bureau Ordinance, 1999 which is mandatory in nature and has to be complied with in letter and spirit as the same is based on the Constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Art. 10 of the Constitution‑‑‑Non‑compliance of such provisions of the Constitution and the Ordinance would render the arrest and detention of the detenue illegal—Principles.

Conveying ­the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of section 24, National Accountability Bureau Ordinance, 1999 which .is mandatory in nature and has to he complied with in letter and spirit as it is based on the Constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Article 10 of the Constitution.

The first and foremost requirement of Article 10 of the Constitution of Pakistan is that any person who is arrested and detained has. to be informed, as soon as may be, of the grounds of his arrest and detention and no person can be arrested and detained in custody without complying with the above requirement. The second requirement is that no person so arrested or detained can be denied the right to consult a legal practitioner of his choice for his defence‑ Non‑compliance of the above requirements would be violative of the fundamental rights and Constitutional guarantees. Requirement of clause (2) of Article 10 is that the person arrested and detained in custody has to be produced before a Magistrate within 24 hours of his arrest excluding the time spent in journey, ‑for obtaining a remand. Clauses (1) and (2) of Article 10 deal with punitive arrest and detention and restrictions have been imposed on the law‑making bodies not to make any law beyond the limits of the said provisions. The provisions of section 24(d) of the National Accountability Bureau Ordinance with regard to the arrest and detention of an accused and his production before a Magistrate or competent Court within a period of twenty‑four hours for remand are synonymous with the provisions of Article 10(1) and (2) of the Constitution which provide safeguard and protection to personal liberty as the liberty of a person in a State, is inviolable.

The expression "as soon as may be" used both in Article 10(1) of the Constitution as well as in section 24(d) of the Ordinance means as soon as possible, as it is the first right of the person arrested and detained to know in black and white, as soon as possible the grounds and substance on the basis of which he has been arrested to enable him to be defended by a legal practitioner of his choice. The second right of the arrested and detained. person is that he has to be produced before a Magistrate or the competent Court within 24 hours of his arrest for remand after excluding journey time, so as to ensure his protection. In the present case, no doubt, the detenu was produced before the competent Court within 24 hours but the first condition of informing him, as soon as may be, of the grounds and substance on the basis of which he was arrested, had not been complied with. The non­compliance of the aforesaid provisions of the Constitution and the Ordinance would render the arrest and detention of the detend illegal.

It is fundamental right of a person who is arrested or detained to know, both under the punitive as well as under the preventive laws, about the grounds and substance in black and white, on the basis of which he was arrested and detained. It is also his right to consult a legal practitioner of his choice for his defence and, he has to be produced before a Magistrate within 24 hours excluding the time of journey for obtaining remand.

Government of East Pakistan v. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286 ref.

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

‑‑‑‑Ss. 9 & 10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Criminal Procedure Code (V of 1898), S.497‑‑‑Allegation of corruption and corrupt practices‑‑ ‑Bail, grant of‑‑‑Alleged loss to the Bank, if any, was caused by the Board of Directors itself who decided to sell the property to the company at the price fixed by it‑‑‑Power to do entire business and affairs of the Bank including its management and transactions, vested in the Board of Directors under the relevant law and it was obligatory on the Board to safeguard and protect the interest of the Bank‑‑‑If any loss had been caused to the Bank in the project of building the property or in sale transaction, its responsibility primarily lay on its Board of Directors which was in dominating position either to award or refuse the transaction‑‑‑Board of Directors which was at the helm of affairs had not been made answerable while the persons who were subject to the authority of the Board had been nabbed‑‑‑Documentary evidence on record further showed that the offence could not be committed by the accused without the connivance of the Board of Directors of the Bank against whom no action had been taken so far‑‑‑Accused was a partner of the company like the other partner who had been allowed bail by the same Bench of the High Court, therefore, case of the accused was at par with the other partner (on bail) hence rule of consistency would be applicable to the extent of the accused‑‑‑Accused having made out a case for his release on bail moreso when the bail could not be withheld as a punishment, Supreme Court converted the petition for leave to appeal by the accused into an appeal, allowed the same, set aside the Judgment of High Court and ordered that the accused be released on bail on the sum of Rs.20,000,000 with two sureties each in the like amount to the satisfaction of the Trial Court.

Khalid Anwar, Senior Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record (absent) for Petitioner.

M. Nawaz Bhatti, Deputy Attorney‑General for Respondent No.1.

M. Afzal Siddiqui, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 4th February, 2002.

2002 S C M R 1493

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Maj.(Retd.) TARIQ MEHMOOD and others‑‑‑Petitioners

versus

THE STATE and others‑‑‑Respondents

Criminal Petitions Nos. 245 of 2000 and 22 of 2001, decided on 21st June, 2002. .

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 8‑11‑2000 passed in Criminal Appeal No.48 of 1999 and Murder Reference No. l of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 109 & 120‑B‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Retracted judicial confession‑‑‑Evidentiary value‑‑‑Determination of ‑‑‑Test‑‑‑Confession‑‑­Conviction on capital charge on the basis of retracted judicial confession‑‑­ Principles‑‑‑If the Court was convinced that the confession was voluntary and truthful, the same, even if retracted, could be sufficient to sustain the conviction on the capital charge‑‑‑Rule of prudence, However, demands that a confessional statement should be corroborated by other evidence direct or circumstantial in material particulars‑‑‑Judicial confession of the accused, in the present case, having ample corroboration from the evidence of motive, the medical and the positive report of fire‑arms expert regarding spent bullet recovered from the body of deceased, was found true, voluntary and confidence‑inspiring‑‑‑Where the confessional statement of the accused was recorded by a Judicial Magistrate, who had stated that the accused while recording his confession, had not lodged any complaint of coercion, torture or inducement for making the confessional statement, written application sent by the accused to the concerned Sessions Judge on the next day of making the confessional statement, in absence of any sign of outside pressure; would not affect the voluntariness of the confession so recorded‑‑‑Supreme Court while affirming the view of the evidence taken by the High Court upheld the conviction and sentence awarded to the accused and dismissed the petition for leave to appeal.

If the confession was not confidence‑inspiring the use of same, to convict a person without independent corroboration is not proper and legal and the Courts generally refrain from basing the conclusion solely on retracted confession and while following the rule of abundant caution, look for corroboration in material particulars to ensure safe administration of justice but the judicial confession does not always loose its value for lack of corroboration. If the Court is satisfied that the judicial confession though retracted, was true and voluntary, can safely make the same basis for conviction. The true test to judge the evidentiary value of a retracted confession would be that it must be voluntary, truthful, free of any duress and coercion. Therefore, the retraction per se is not always a valid ground to discard judicial confession until and unless it is proved that it was obtained through coercion, threat, pressure or inducement. The detail of events given by the petitioner in his .confessional statement is a strong circumstance to establish that confession was true and voluntary. While judging the voluntariness and truthfulness of the confession it has to appear to be free from any outside pressure and would hardly need any corroboration. Requirement of corroboration is not an inflexible rule to be applied in each case and in each detail rather if the circumstances of the case satisfy the mind of the Court that the confession was truthful, it would be sufficient to sustain the conviction. Therefore, the conclusions drawn are as under:‑‑

(a) The retracted judicial confession if is voluntary confidence‑inspiring, is alone sufficient to sustain conviction;

(b) the rule of corroboration being rule of abundant caution, is not an inflexible rule to be insisted in each case;

(c) if by the circumstances of the case, the mind of the Court is satisfied, it would be sufficient to sustain conviction.

With a view to judge the evidentiary value of judicial confession it is essential to determine its voluntariness and truthfulness. If the Court is convinced that the confession was voluntary and truthful, the same, even if, retracted can be sufficient to sustain the conviction on the capital charge. However, the rule of prudence demands that confessional, statement should be corroborated by other evidence direct or circumstantial in material particulars.

Evidentiary value of a judicial confession would not be affected unless it is established that the Magistrate, who recorded the same, had tampered with the confession.

The essential question for determination, in the present case, was as to whether the judicial confession made before a Judicial Magistrate while in police custody after five days of arrest which was subsequently retracted through a written application sent to the concerned Sessions Judge, was voluntary, free from any outside pressure and confidence‑inspiring? This is correct that while in police custody, the delay in recording the confessional statement is seen with suspicion but mere delay of few days would not be a ground to doubt the voluntariness of the statement and reject it. The confessional statement in the present case was recorded by the Civil Judge exercising the powers of a Magistrate. Section 30 and the said .Magistrate while appearing before the Court had stated that he recorded the confession after satisfying himself about its voluntariness. It is in his statement that the accused had not lodged any complaint of coercion, torture. or inducement for making the confessional statement, therefore, the written application sent by the accused to the Sessions judge on the next day of making the confessional statement, in absence of any sign of outside pressure, would not affect its voluntasiness.

The accused had not specifically stated in his statement under section 342, Cr.P.C. that confessional statement was obtained through coercion, torture, physical or mental inducement. The High Court having fully scanned the truthfulness of confessional statement of the petitioner found that it was voluntary and confidence inspiring to be relied upon to sustain the conviction and sentence.

In the present, case the manner in which the confession was made would show that it was not made under any pressure and was voluntary. The accused while disclosing the secrets of his love affairs had given the minute details of their conversation on different occasions which fact was either known by the accused or the lady and no third person would be aware of their illicit relations inter se and that the disclosure of the secrecy of such matters of exclusive knowledge in minute details would not be unwilling or due to outside pressure and compulsion.

The motive to commit the crime as disclosed by the accused in his confession was his sexual commitment with wife of deceased which would appeal to mind to be correct as neither prosecution nor defence had given any other motive for commission of offence.

The confessional statement made by the accused would show that the accused and the lady indulging in immoral activities were not prepared to discontinue their relation and the accused to fulfil his evil designs, took the extreme step of killing the deceased.

The judicial confession made by accused seeking ample corroboration from the evidence of motive, the medical and the positive report of fire‑arm expert regarding the spent bullet recovered from the body of deceased was found true, voluntary and confidence‑inspiring. Supreme Court while affirming the view of the evidence taken by the High Court upheld the conviction and sentence awarded to the accused and dismissed the criminal petition being without any substance. Leave to appeal was refused.

Muhammad Ismail v. State 1995 SCMR 1615 and Muhammad Gul v. State 1991 SCMR 942 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302. 109 & 120‑B‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Confession‑‑‑Corroborative evidence‑‑ ‑Accused in his confessional statement had stated that the deceased was fired at by him with his licensed revolver: spent bullets recovered from the dead body were sent in a sealed parcel to the Forensic Science Laboratory and the revolver which was used as weapon of offence was also sent to the laboratory for test and Fire‑arms Expert had reported that the spent bullets were fired from the revolver recovered from the accused which was an independent source of corroboration to the confession made by the accused‑‑‑Contention of the accused that spent .bullets and the revolver were sent together to the laboratory and there being no explanation of withholding the spent bullets till recovery of the revolver, the report of Fire‑arms Expert would be of doubtful character had no substance‑‑‑Evidence showed that :spent bullets were sent to the laboratory before recovery of revolver and even if tic bullets were sent with revolver, that would be of no help to the accused as the spent bullets were recovered from the body of the deceased by the doctor during the post‑mortem examination and there was no possibility of tampering; with the same‑‑‑Matching of spent bullets recovered from the dead body with the weapon used in the commission of offence could safely be used as corroborative evidence of the confessional statement and could not be excluded from consideration for mere reason that the spent bullets were sent after the recovery of the revolver‑‑‑Petition for leave to appeal was dismissed by the Supreme Court.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 109 & 120‑B‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Accused had murdered the husband of the lady with whom accused had illicit relations‑‑‑Mere knowledge of the intention of paramour of the lady to commit such an offence would not be an incriminating evidence to suggest that the lady also joined hands in the murder of her husband‑‑‑Accused, in his confessional statement had not suggested that he committed the murder while acting under the influence of the lady or at her instance rather he stated that he consulted her about his intention but she was reluctant to be party to such an act and restrained him from taking such step‑‑‑No other convincing evidence was brought to show the link of the lady with the murder‑‑­Acquittal of the lady being not questionable, petition for leave to appeal against her acquittal was dismissed by the Supreme Court.

S.M. Zafar, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Cr1.P. No.245 of 2000).

Mushtaq Ali Tahirkheli, Advocate Supreme Court and Ch. Akthar Ali, Advocate‑on‑Record for the Complainant (in Crl.P. No.245 of 2000).

Mushtaq Ali Tahirkheli, Advocate Supreme Court, Fazal‑i‑Haq Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Crl.P. No.22 of 2001).

Nemo for Respondents (in Crl.P. No.22 of 2001).

Date of hearing. 26th March, 2002.

2002 S C M R 1507

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

FARHATULLAH KHAN and others‑‑‑Appellants

versus

ADDITIONAL COMMISSIONER (REVENUE), MULTAN and others‑‑‑Respondents

Civil Appeals Nos.653 and 654 of 1995, decided on 13th June, 2002.

(On appeal from the judgment/order dated 19‑5‑1993 passed by Lahore High Court in Writ Petitions Nos. 153‑R and 186‑R of 1988).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss.10 & 11‑‑‑Constitution of Pakistan (1973), Art‑185(3) ‑‑‑ Leave to appeal was granted by Supreme Court to consider; whether Deputy Settlement Commissioner had the jurisdiction to declare the land in dispute as building site; whether the petitioners in Constitutional petition before the High Court were unable to produce the requisite documentary evidence in support of their claim of having purchased the plots in auction because the necessary documents were not supplied to them by the Settlement Department; whether High Court should have called for the record or remanded the matter to the Settlement Authorities for holding inquiry to ascertain the correctness or otherwise of the petitioners' claim; whether the petitioners were the sitting allottees and they had pending claim/units which should have been adjusted against the land in dispute and whether the findings of Settlement Authorities negating petitioners' claim were contrary to the record.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S.2(3)(b)‑‑‑Notification No.6894‑69/491‑R(P) dated 5‑2‑1960‑‑­Declaration of urban agricultural land as building site‑‑‑Jurisdiction‑‑‑Deputy Settlement Commissioner was empowered under Notification No.6894­69/491‑R(P), dated 5‑2‑1960, to declare only Evacuee Rural Agricultural Land as building site‑‑‑Urban agricultural land declared as building site by Deputy Settlement Commissioner was without jurisdiction.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 2(3)(b), 10 & 11‑‑‑Notification No. 6894‑69/491‑R(P), dated 5‑2‑1960‑‑‑Declaration of urban agricultural land as building site and its auction as such‑‑‑Disputed land was urban agriculture land and the same was declared as building site by Deputy Settlement Commissioner and converting it into plots was auctioned by the Authorities‑‑‑Appellants being the auction purchasers of the plots claimed their entitlement to the transfer of such plots‑‑‑Validity‑‑‑Deputy Settlement Commissioner was not empowered to declare urban evacuee agriculture land as potential building site‑‑‑As the foundation of the claim was based on the order passed without lawful authority the appellants were not entitled to the transfer of the plots on the basis of auction‑‑‑Claim of the appellants was not entertained in circumstances.

(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Transfer‑of Property Act (IV of 1882), S.41‑‑‑Transfer by ostensible owner‑‑‑Plea of fraud‑‑‑Appellants purchased the disputed land from a person whose allotment was set aside by the Authorities‑‑‑Appellants sought protection of S.41 of Transfer of Property Act, 1882‑‑‑Validity‑‑‑Any transaction which was based on fraud could not be sustained in the eye of law and such transferees were bound to swim or sink alongwith the transferor‑‑‑‑Fraudulent transaction, howsoever, solemn it may look was bound to be vitiated‑‑‑‑Appellants, in the present case could not claim protection of S.41 of Transfer of Property Act, 1882, because the principles embodied in the said provisions would not be applicable to the evacuee property‑‑‑Appeal was dismissed.

Manzoor Hussain v. Fazal Hussain and others 1984 , SCMR 1027 and Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491 ref.

Ghias‑ud‑Din v. Iqbal Ahmad and 5 others PLD 1975 Lah. 780; Lal and another v. Muhammad Ibrahim 1993 SCMR 710; Government of Sindh through, Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782; John Paul v. Irshad Ali and others PLD 1997 Kar. 267; Mst. Sarwari Begum v. Atta‑ur‑Rehman 1997 CLC 1500; Muhammad Yaqoob v. The State 1997 PCr.LJ 1979; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027; Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491; Ejaz Ahmad Khan v. Chahat and others 1987 SCMR 192; Mst. Resham Bibi v. Mst. Elahi Sain PLD 1991 SC 1034; Sufi Zaheer Ahmad through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others 1993 MLD 195 and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 rel.

(e) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 2‑‑‑Pending cases ‑‑‑Unconsumed produce index units‑‑‑Claim to disputed property was made on the basis of unconsumed produce index units‑‑‑Validity‑‑‑Merely on the basis of such units the case of claimant could not be treated as pending case‑‑‑Supreme Court advised such claimant to ask for compensation from the concerned authority of Provincial Government‑‑­Claim was not entertained in circumstances.

Maqbool Sadiq, Senior Advocate Supreme Court. Khaleeque Ansari, Advocate Supreme Court, Kh. Saeed‑uz‑Zafar, Senior Advocate Supreme Court and Syed Inayat Hussain, Advocate‑on‑Record (absent) for Appellant (in C.A. No.653 of 1995).

Ch. Muhammad Akram, Advocate Supreme Court/Advocate‑on­-Record and Malik Safdar, DOR for Respondent No. l (in C.A. No.653 of 1995).

Ismail Quresni, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondents Nos.3 and 4 (C.A. No‑653 of 1995).

Shahzad Jehangir, Senior Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents Nos.5, 6, 9, 10, 13, 14, 18, 21, 24 and 26 (in C. A. No. 653 of 1995).

Rana Abdul Rahim, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos.27 to 3.1 and 36 to 42 (in C.A. No.653 of 1995).

Ismail Qureshi, Advocate Supreme Court, Khaleeq Ansari, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Appellant (in C.A. No.653 of 1995).

Ch. Muhammad Akram, Advocate Supreme Court/Advocate‑on-­Record for Respondents Nos. l and 2 (in C.A. No.653 of 1995).

Rana Abdul Rahim, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents (in C.A. No.653 of 1995).

Dates of hearing: 20th January; 18th and 19th March, 2002.

2002 S C M R 1523

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

Sheikh IFTIKHAR‑UD‑DIN and another‑‑‑Appellants

versus

DISTRICT JUDGE, BAHAWALPUR EXERCISING POWERS OF ELECTION TRIBUNAL FOR UNION COUNCIL OF DISTRICT LODHRAN and 8 others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 691 of 2002, decided on 28th May, 2002.

(On appeal from judgment dated 14‑5‑2002 passed by the Lahore High Court, Multan Bench, Multan in W.P. No.2527 of 2002).

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr.40(6) & 70‑‑‑Recounting of ballot papers‑‑‑Scope‑‑‑Method and procedure‑‑‑Each ballot‑paper has to be scrutinized by the Tribunal to examine and verify as to whether Presiding Officers of all polling stations had correctly counted the ballot papers or not.

(b) Punjab Local Government Elections Rules, 2000‑‑

‑‑‑‑Rr.40(6) & 70‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑ Recounting of votes‑‑‑Election Tribunal without recording any evidence allowed application for recounting of votes‑‑‑Returned candidates assailed the order of recounting before High Court in Constitutional petition‑‑‑High Court dismissed the petition and maintained the orders of the Tribunal on the ground that the order of recount was interim in nature‑‑‑Validity‑‑‑Judgment passed by High Court, was based on the law laid down by Supreme Court and was in consonance with the provisions of Punjab Local Government Elections Rules, 2000‑‑‑Where unsuccessful candidates seriously challenged the validity of ballot papers for which proper course for the Tribunal was to examine and recount the ballot papers so that complete justice might be done‑‑‑High Court had neither done any misreading or non‑reading of material on record nor there was any misconstruction of facts and law‑‑­Supreme Court declined to interfere with the judgment passed by High Court as no substantial question of law of public importance as contemplated under Art. 185(3) of the Constitution was involved‑‑‑Leave to appeal was refused.

Mian Allah Nawaz, Advocate Supreme Court, Gul Zarin Kiani, Advocate Supreme Court and Imitaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th May, 2002.

2002 S C M R 1527

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

GOVERNMENT OF PAKISTAN through Additional Secretary (Customs), Ministry of Finance, Islamabad and another‑‑‑Petitioners

versus

MAHMOOD AHMED QURESHI and another‑‑‑Respondents

Civil Petition No. 1582 of 2001, decided on 13th May, 2002.

(On appeal from the judgment dated 25‑4‑2001 of Lahore High Court, Rawalpindi Bench passed in Writ Petition No.81 of 1998).

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.179 & 181‑‑‑Poceedings before Special Judge Customs and Customs Authorities‑‑‑Nature and scope‑‑‑Criminal proceedings before Special Judge are judicial proceedings while proceedings conducted before Customs Authorities relating to adjudication are in the nature of departmental proceedings‑‑‑Though in certain cases, both the proceedings emanate from the same subject‑matter, yet they are independent of each other and findings recorded by Special Judge do not always control the findings recorded by the Customs Authorities relating to adjudication proceedings‑‑‑Both the proceedings go side by side but do not mingle.

Adam v. Collectors of Customs. Karachi PLD 1969 SC 446; Muhammad Sarwar v. Federal Government of Pakistan and others 1988 PCr. LJ 213 and State through Director‑General Pakistan Coast Guards, Turbat v. Sabro and another 1992 PCr.LJ 1795 ref.

(b) Customs Act (IV of 1969)‑‑

‑‑‑‑Ss. 156(1)(8)(70), 157, 179 & 185(1)‑‑‑Foreign Exchange Regulation Act (VII of 1947). S.8‑‑‑Acqiuittal of accused‑‑‑Release of confiscated currency‑‑‑Accused was arrested from the airport and foreign currency was recovered from him‑‑‑In adjudicating proceedings before Customs Authorities, the currency was confiscated whereas the Special Judge Customs acquitted the accused‑‑‑High Court relying on the judgment passed by the Special Judge directed the Authorities to release the currency recovered from the accused‑‑‑Plea raised by the Authorities was that the proceedings before the Special Judge and adjudicating proceedings before the Customs Authorities were independent of each other and High Court had wrongly nullified the adjudicating proceedings‑‑‑Validity‑‑‑Order of Special Judge, Customs would not, ipso facto, overrule, the decision delivered by the Customs Officers in adjudication proceedings, nor the acquittal of accused would nullify the effect of the adjudication proceedings unless the adjudication proceedings on their own strength were contrary to law and against the principles of natural justice‑‑‑Customs Authorities in the present case confiscated currency strictly in accordance with law, as such the findings could not be disturbed by the judgment passed by the Special Judge‑‑‑Judgment passed by High Court was set aside and seized currency was confiscated to the State‑‑‑Appeal was allowed accordingly.

Adam v. Collector of Customs, Karachi PLD 1969 SC 446; Muhammad Sarwar v. Federal Government of Pakistan and others 1988 PCr.LJ 213 and State through Director‑General, Pakistan Coast Guards, Turbat v. Sabro and another 1992 PCr.LJ 1795 ref.

Raja Abdul Ghafoor, Advocate Supreme Court and Advocate‑on-Record for Petitioners.

Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 13th May, 2002.

2002 S C M R 1533

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

SHAUKAT ALI QAMAR‑‑‑Petitioner

versus

ABDUL GHAFOOR and 3 others‑‑‑Respondents

Criminal Petition No.339‑L of 2001, decided on 8th February, 2002.

(On appeal from the judgment dated 9‑5‑2001 of the Lahore High Court, Lahore passed in Criminal Revision No.342/94, Criminal Appeal No.225/94 and Murder Reference No.114/94).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused charged for the conspiracy and abetment for the murder had been rightly acquitted as tangible proof of the same was lacking and the grounds of their acquittal contained in the judgment of Trial Court and upheld by High Court could not be called fanciful by any stretch of imagination‑‑‑High Court had also altered the sentence of death of another accused to imprisonment for life on valid and cogent reasons as it was a sudden flare‑up and prosecution had suppressed true facts‑‑‑Mitigating circumstance highlighted in 'the impugned judgment for awarding lesser sentence was unexceptionable‑‑‑Leave to appeal was refused to the complainant by the Supreme Court accordingly.

Syed Zahid Hussain Bokhari, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑or‑Record (absent). for Petitioner.

Nemo for Respondents

Date of hearing: 8th February, 2002.

2002 S C M R 1535

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MOKHA‑‑‑Petitioner

versus

ZAFAR and others‑‑‑Respondents

Criminal Petition No.496‑L of 2001, decided on 8th April, 2002

(On appeal from the judgment of the Lahore High Court, Lahore dated 28‑6‑2001 passed in Crl. A. No.748 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/109‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Reappraisal of evidence‑‑‑Weapon of offence not sent Forensic Science Laboratory nor any empty was recovered from the place of occurrence‑‑‑Dead body was kept in house of prosecution witnesses for the whole night and was taken to hospital on the next day‑‑‑No indication was given in the site‑plan as to from where the accused had fired the shot‑‑‑No blood‑stained earth was taken from the spot‑‑‑Ocular account of the incident was given by the prosecution witnesses who had not witnessed the occurrence‑‑‑High Court set aside the sentence of life imprisonment awarded by Trial Court and the accused was acquitted‑‑‑Validity‑‑‑Judgment of acquittal passed by High Court was in accordance with law as the evidence had been appraised by the High Court in accordance with the principles for safe administration of criminal justice‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

M.D. Chaudhry, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th April, 2002.

2002 S C M R 1536

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Syed Deedar Hussain Shah, JJ

MUSLIM COMMERCIAL BANK LIMITED through General Manager‑‑‑Petitioner

versus

MUHAMMAD FAROOQ ABID and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.2731 of 2001, decided on 19th April. 2002.

(On appeal from judgment dated 29‑8‑2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W. P. No. 102 of 1996).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 25‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Reinstatement in service ‑‑‑Defective departmental inquiry‑‑‑Employee on the allegation of misappropriation of certain amount was dismissed from service‑‑‑Grievance petition under S.25‑A of the Industrial Relations Ordinance, 1969, tiled by the employee was dismissed by the Labour Court‑‑‑Appeal before the Labour Appellate Tribunal was allowed and the employee was reinstated in service with a direction to the employer to hold a fresh inquiry‑‑‑Judgment passed by the Labour. Appellate Tribunal was upheld by the High Court ‑‑‑Validity‑‑­High Court had considered the entire case and with sound and cogent reasons dismissed the Constitutional petition of the employer and upheld the order of the Tribunal‑‑‑No misreading or non‑reading of the material evidence by the High Court was found and the judgment was passed by the High Court on the basis of law laid down by Supreme Court, which did not call for any interference‑‑‑Matter of public importance as contemplated under Art. 185(3) of the Constitution of 1973, was also not made out‑‑‑Leave to appeal was refused.

Raja Muhammad Akram, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.A. Zaidi, Advocate‑ on‑Record for Respondents.

Date of hearing: 19th April, 2002.

2002 S C M R 1540

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD NAZIR‑‑‑Petitioner

versus

SAEED SUBHANI‑‑‑Respondent

Civil Petition No. 1081‑L of 2002, decided on 10th April, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 13‑2‑2002 passed in S.A.O. No.46 of 2002).

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

‑‑ ‑S. 13(6)‑‑‑Constitution of Pakistan (1973), Art. 185(3) Ejectment of tenant‑‑‑Striking off defence‑‑Plea of agreement to sell‑‑‑Relationship of landlord and tenant between the parties was not denied by the tenant in the written statement‑‑‑Tenant, according to the agreement of sale, continued to retain the status of tenant and his possession over the premises was not agreed to be converted into one in part performance thereof‑‑‑Tenant failed to comply with the‑ order for deposit of tentative rent, therefore, Rent Controller struck off the defence and eviction of the tenant was ordered‑‑ Appeals before Appellate Court and High Court were dismissed ‑‑‑Validity‑‑­ Tenant had not complied with the order made under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, the order of Rent Controller striking off defence of tenant was unexceptionable in law‑‑‑Both the Appellate Courts had rightly found that the order striking off defence of the tenant did not suffer from any illegality‑‑‑Supreme Court declined to interfere with the orders passed by the Courts below‑‑‑Leave to appeal was refused.

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

‑‑‑‑S. 15‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Condonation of delay‑‑‑Scope‑‑‑Provision of S.5 of Limitation Act, 1908, for condonation of delay was not applicable‑‑‑Appeal tiled beyond period prescribed under S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959, was rightly dismissed by High Court as time‑barred.

Muhammad Ahmed Hasan Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 10th April, 2002.

2002 S C M R 1543

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Actg. C.J, Ch. Muhammad Arif and

Qazi Muhammad Farooq, JJ

GHULAM JAFFAR and others‑‑‑Petitioners

versus

CANAL MAGISTRATE, (II‑CLASS) and others‑‑‑Respondents

Civil Miscellaneous Application No. 1377 and Civil Petition No. 1227‑L of 2000, decided on 8th November, 2000.

(On appeal, from the judgment dated 23‑2‑2000 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No.218/86).

Counsel and client‑‑‑

‑‑‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Counsel and client, relationship of‑‑‑Acceptance of offer without authority‑‑‑Remedy‑‑‑Counsel of the petitioners was on leave‑‑‑Constitutional petition tiled by the petitioner was fixed for hearing‑‑‑Respondent made an offer, some other counsel who had appeared in another connected petition accepted the offer on behalf of the petitioners also‑‑‑High Court on the basis of acceptance of the offer disposed of the petition‑‑‑Validity‑‑‑Three courses were open to the petitioners to be resorted to; firstly the petitioners might file a suit for damages against the counsel Who accepted the proposal of the respondents; secondly application under SA2(2), C.P.C., and thirdly review petition under O.XLVII, R.1, C.P.C.‑‑‑Supreme Court declined to interfere with the order passed by High Court‑‑‑Leave to appeal was refused.

Taj Muhammad Khan Langah, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th November, 2000.

2002 S C M R 1544

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

Mst. JAMEELA AKHTAR‑‑‑Petitioner

versus

PUBLIC‑AT‑LARGE and others‑‑‑Respondents

Civil Petition No.2621‑L of 2001, decided 2nd April, 2002.

(On appeal from the judgment of the. Lahore High Court, Lahore, dated 25‑7‑2001 passed in Civil Revision No. 1157 of 2000).

Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑Ss. 372 & 373‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Succession certificate, grant of‑‑‑Dispute as to a legal heir‑‑‑Jurisdiction of Court‑‑­Scope‑‑‑Petitioner denied the respondent as a second widow of the deceased‑‑‑Nikahnama produced by the respondent contained different name and not of the respondent‑‑‑Petitioner filed application before the Family Court for summoning record of Union Council to ascertain whether the Nikah was entered in the relevant register under Muslim Family Laws Ordinance, 1961‑‑‑Trial Court without passing any order on the application issued the Succession Certificate which included the name of the respondent also‑‑‑Certificate issued by the Trial Court was maintained by the Lower Appellate Court and High Court‑‑‑Plea raised by the petitioner was that without having a declaration from the Civil Court, the succession Certificate could not have been issued in favour of the respondent‑‑‑Validity‑‑‑Nakah on which the respondent had placed reliance prima facie appeared to be a mutilated document as name of the bride was different and below that name, the name of the respondent had been written‑‑‑Family Court in the present case while granting Succession Certificate to the respondent, should have directed that no share of the said amount would be paid to the respondent unless she would get a decree from Civil Court about her status as widow of the deceased‑‑‑Such question could not be decided in summary proceedings‑‑­Supreme Court advised the respondent to get her status as widow of the deceased established by tiling a civil suit‑‑‑Supreme Court directed that if the respondent succeeded in getting a decree, the amount already received by her under Succession Certificate might be retained by her and in case the suit was decided against her, the respondent would refund the amount to the other widow included in. the certificate and the other widow would distribute the refunded amount among the remaining heirs of the deceased‑‑‑Petition for leave to appeal was converted into appeal and orders passed 'by the Courts below were set aside‑‑‑Appeal allowed.

Sh. Naveed Shehryar, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Syed Zulfqar Ali Bokhari, Advocate Supreme Court and Ch. Mehdi Khan Mehtab. Advocate‑on‑Record for Respondent No.3.

Date of hearing: 2nd April, 2002.

2002 S C M R 1547

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehrnan Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD BOOTA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent.

Criminal Petition No. 162‑L of 2002, decided on 4th April, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 16‑1‑2002 passed in Crl. A. No. 1520 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Reappraisal of evidence‑‑‑Confidence inspiring prosecution evidence‑‑‑Accused remained absconder for nine years without any plausible explanation‑‑‑Ocular account given by the prosecution witnesses inspired confidence and their testimony remained unshattered‑‑‑Sentence of life imprisonment was maintained by High Court‑‑‑Accused had already been treated leniently by the Trial Court as capital sentence of death had not been awarded though it had been found that the case against him had been proved‑‑‑Judgments passed‑by the Trial Court and High Court were based on correct, elaborate and careful appraisal of evidence and were in accordance with the principles for safe administration of criminal justice‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.

Abdul Hameed Rana, Advocate Supreme Court and Walayat Umer, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 4th April, 2002.

2002 S C M R 1548

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MUHAMMAD JAN, S.‑I and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.235/L of 2002, decided on 15th April, 2002.

(On appeal from the judgment dated 5‑3‑2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 1728 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S: 161‑‑‑Prevention of Corruption Act (II of 1947), S.5(2) ‑‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Reappraisal of evidence‑‑‑Illegal gratification‑‑‑Special Judge convicted the accused persons and sentenced them to two years' imprisonment‑‑‑High Court dismissed the appeal‑‑­Contention of the accused persons was that as they had registered a criminal case against a son of the complainant and the son was convicted by the Trial Court, therefore, the case was registered against them‑‑‑Validity‑‑‑Amount of illegal gratification was received by the accused persons in presence of the witnesses who had fully supported the stance of tile complainant‑‑‑Conviction awarded by the Trial Court to the son of the complainant was set aside by the Appellate Court on 14‑6‑2000, and statement of the complainant was recorded on 19‑6‑2000‑‑‑Grievance of the complainant qua implication of his son after acquittal of the son, had already been redressed‑‑‑Judgment passed by High Court did not suffer from any legal infirmity‑‑‑Leave to appeal was refused.

Muhammad Asghar Khan Rokhari, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 15th April,2002.

2002 S C M R 1551

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and

Faqir Muhammad Khokhar, JJ

AKBAR ALI ANSARI and another‑‑‑Petitioners

versus

ELECTION TRIBUNAL and others‑‑‑Respondents

Civil Petition No.718‑L of 2002, decided on 27th March, 2002

(On appeal from the order dated 26‑2‑2002 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No. 1054 of 2002).

Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 39 & 70‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑­Election dispute‑‑‑Constitutional Jurisdiction of High Court‑‑‑Interim injunction, grant of‑‑‑Petitioners were candidates for the seats of Nazim and Naib‑Nazim and were declared as returned candidates and notification was issued in that respect‑‑‑Respondents assailed the election and after re­counting of ballot papers, the respondents were declared as returned candidates‑‑‑Order of the Election Tribunal was challenged by the petitioners in Constitutional petition before High Court alongwith application for interim injunction‑‑‑Petitioners sought interim injunction against taking of oath of the respondent till disposal of the petition as respondent had not taken the oath of the office of Nazim and Naib‑Nazim‑‑‑High Court declined the injunction‑‑‑Validity‑‑‑Petitioner had already been declared elected and they were holding the posts and the Election Tribunal acted in haste to proceed to re‑count the votes and declared the respondents as successful against which the Constitutional petition had been admitted‑‑‑Exercise of discretion of refusal to issue interim, injunction by High Court was not based on application of judicial mind and the order of High Court suffered from arbitrariness‑‑‑Supreme Court set aside the order passed by High Court and operation of order passed by Election Tribunal declaring the respondents as successful candidates was suspended with direction to petitioners to continue to hold the offices of Nazim and Naib‑Nazirri till the disposal of the Constitutional petition by High Court‑‑‑Petition for leave to appeal was converted into appeal and the same was allowed.

Ihsanul Haq Chaudhry, Advocate Supreme Court and Ch. Talib Hussain, Advocate‑on‑Record for Petitioner.

Ch. Muhammad Ashraf, Advocate Supreme Court for Respondents.

Date of hearing: 27th March, 2002.