SCMR 2003 Judgments

2003 SCMR 1

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ.

Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

MUHAMMAD MUSADAQ KH., ASSISTANT EXECUTIVE ENGINEER and 14 others‑‑‑Appellants

Versus

MUHAMMAD AKRAM KHAN RAO and 80 others‑‑‑Respondents

Civil Appeal No. 1263 of 1995, decided on 15th May, 2001.

(On appeal from judgment dated 19‑3‑1995 passed by the Federal Service Tribunal, Islamabad in Appeal No.245(R) of 1994).

(a) Central Engineering Service class‑I Rules, 1951‑‑‑--

‑‑‑‑R.21 [as amended on 11‑10‑1984 and 12‑5‑1988]‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Civil Servants Act (LXXI of 1973), S.9‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Promotion‑‑‑Appeal to Service Tribunal‑‑­Limitation‑‑‑Contention of petitioner was that appeal before Service Tribunal was barred by time as representation made on 23‑6‑1992 remained undecided for more than 120 days and respondent did not invoke jurisdiction of Tribunal in time, but manoeuvred to get reply on 10‑7‑1994 about rejection of his representation, which would not enlarge the time for filing of appeal; that since initial, promotion, on 'account of failure of respondent to qualify departmental examination, was violative of Central Engineering Service Class‑I Rules amended on 11‑10‑1984, he was not eligible to be considered for further promotion in B‑17 as Assistant Executive Engineer; that Service Rules amended on 11‑10‑1984 did not provide for promotion of Assistant Engineer B‑16 to the post of Assistant Executive Engineer B‑17, but Service Rules as amended on 12‑5‑1988 contained provisions for such promotion subject to passing of departmental examination, enforcement of which would be prospective and not retrospective w.e.f. 11‑10‑1984; that since Service Rules amended on, 11‑10‑1984 did not provide for such promotion, Service Tribunal was wrong to conclude the same to be an omission and that Service Tribunal had not considered the effect of quota system‑‑‑Supreme Court granted leave to appeal to further consider the matter.

(b) Central Engineering Service Class‑I Rules, 1951‑‑‑-

‑‑‑‑R.21 [as amended on 11‑10‑1984 and 12‑5‑1988]‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Civil Servants Act (LXXI of 1973), Ss. 9 & 22‑‑­Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal to Service Tribunal‑‑­Limitation‑‑‑Promotion‑‑‑Contention of appellant was that appeal before Service Tribunal was barred by time as the representation of respondent‑civil servant remained undecided for more than 120 days, who after that manoeuvred to get reply about rejection of his representation, which would not enlarge the time for filing of appeal; that since initial promotion on account of failure of respondent‑civil servant to qualify departmental examination was violative of Central Engineering Service Class‑I Rules as amended on 11‑10‑1984, he was not eligible to be considered for further promotion in B‑17 as Assistant Executive Engineer; and that Service Rules framed on 11‑10‑1984 did not provide for promotion of Assistant Engineer B‑16 to the post of Assistant Executive Engineer B‑17, thus, Service Tribunal was wrong to conclude the same to be an omission ‑‑‑Validity‑‑­Appeal was beyond time‑‑‑Service Tribunal had erred in holding that after alleged rejection of representation by respondent (Secretary, Works Division), the appeal was within time without noticing that Secretary, Works Division was not the Competent Authority in case of respondent civil servant, thus, he could not link such rejection of representation with his appeal before Service Tribunal to mitigate the rigours of law of limitation‑‑­Effect of the Rules requiring respondent‑civil servant to pass departmental examination for promotion as Assistant Engineer B‑16 and Assistant Executive Engineer B‑17 had not been brought to bear upon the case of parties before Tribunal and that too without considering the respondent's failure to pass departmental examination respectively in accordance with the provisions of Office Memo. dated 16‑11‑1974, Gazette Notification dated 18‑3‑1979 .and Notification dated 15‑8‑1955‑‑‑Tribunal had not considered the plea raised by appellant that case of respondent fell within ambit of R.21 of Central Engineering Service Class‑I Rules, 1951‑‑­Supreme Court allowed the appeal, set aside the impugned judgment and remanded the case to' Service Tribunal to hear the parties on specified questions.

Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 ref.

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

‑‑‑‑S.4‑‑‑Civil Servants Act (LXXI of 1973), S.22‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Rejection of departmental appeal/representation of civil servant before an Authority other than Competent Authority would not mitigate the rigours of the law of limitation.

Shah Abdur kashid, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Appellants.

Respondents: Ex parte.

Date of hearing: 15th May, 2001.

2003SCMR9

[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.2131 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, filed 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 Pakistan (1973) was also not made out‑‑‑Leave to appeal was refused.

Raja Muhammad Akram, Advocate Supreme Court with 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.

2003 S C M R 13

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ

Ch. MAHMOOD AKBAR, SUPERINTENDENT JAIL, DISTRICT JAIL, FAISALABAD ‑‑‑Appellant

Versus

Ch. MUHAMMAD AFZAL, SUPERINTENDENT JAIL, SIALKOT and 2 others‑‑‑Respondents

Civil Petition No. 1789 of 1996, heard on 13th June, 2001.

(On appeal from judgment dated 20‑10‑1996 passed by the Punjab Service Tribunal, Lahore in Appeal No. 267.of 1995).

(a) Punjab Civil Servants (Appointment and Conditions of Service Rules, 1974‑‑--

‑‑‑‑R. 8(1)(b), Expin. I‑‑‑Punjab Civil Servants Act (VIII of 1974), Ss. 7, & 9‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Promotion‑‑‑Seniority‑‑‑Respondent while serving as Deputy Superintendent Jail was transferred and posted on 21‑12‑1989 as Superintendent Jail on his own pay and scale, and w promoted as Superintendent on 1‑9‑1994‑‑‑Respondent claimed promotion w.e.f. 21‑12‑1989 for having been working as Superintendent since then, but Department dismissed his representation‑‑‑Service Tribunal accepted respondent's appeal by granting him pay and allowances, privileges and status of the post of Superintendent w.e.f. 21‑12‑1989‑‑‑Petitioner contention was that he being senior to respondent was not made party appeal; and that Tribunal had erred in conferring the status and privileges of the post of Superintendent on respondent w.e.f. 21‑12‑1989, which had amounted to granting him promotion from said date‑‑‑Supreme Court granted leave to appeal to consider said contentions of petitioner.

(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑-

‑‑‑‑8. 8(1)(b); Expln. I‑‑‑Punjab Civil Servants Act (VIII of 1974), Ss. 7, 8 & 9‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Promotion‑‑‑Seniority‑‑‑Respondent while serving as Deputy .Superintendent Jail was transferred and posted on 21‑12‑1989 as Superintendent Jail on his own pay and scale, and was promoted as Superintendent , on 1‑9‑1994‑‑‑Respondent claimed promotion w.e.f. 21‑12‑1989 for having been working as Superintendent since then, but Department dismissed his representation‑‑‑Service Tribunal accepted respondent's appeal in view of the concession made by District Attorney that respondent was entitled to pay and allowances, privileges and status of the post of Superintendent w.e.f. 21‑12‑1989‑‑‑Validity‑‑‑Appellant had not been impleaded as party by respondent before Tribunal‑‑­Explanation I to proviso to cl. (b) of sub‑rule (1) of R. 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was not brought to bear by Tribunal upon facts and circumstances of present case—­Tribunal had not considered the concession made on respondent regarding out of turn promotion and relaxation of rules being not applicable to his case‑‑‑District Attorney had no authority to make any such concession, which had all the potentialities of adversely affecting the rights of a substantial number of employees contrary to R..8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑Tribunal had erred in law in sanctifying said concession of District Attorney‑‑‑Supreme Court accepted the appeal and partially set aside impugned judgment by declaring that grant of the status and privileges of the post of Superintendent Jail (B‑17) w.e.f. 21‑12‑1989 to respondent would not adversely, affect the rights of appellant and other Superintendents Jail in B‑17, who were senior to respondent.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635 ref.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑on‑Record (absent) for Appellant.

Respondents: Ex parte.

Date of hearing: 13th June, 2001.

2003 S C M R 18

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

KHALID MEHMOOD‑‑‑Petitioner

Versus

ABIDA PERVEEN‑‑‑Respondent

Civil Petition No. 1400‑L of 1999, decided on 20th June, 2002.

(On appeal from the order dated 8‑7‑1999 passed by the Lahore High Court, Lahore in Civil Revision No. 1028 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Benami owner‑‑‑Sufficient means of income ‑‑‑Proof‑‑­Evidence produced on record established that the daily income bf the plaintiff was Rs.30/35 per day and he had been lodged in civil prison for execution of maintenance decree of paltry amount of Rs.5,000‑‑‑Effect‑‑‑Plaintiff failed to discharge onus of proof on issue regarding defendant being Benami owner of the suit property‑‑‑Appellate Court as well as High Court in revision found the evidence of the defendant more persuasive after scrutinizing the same in juxtaposition to the evidence of the plaintiff‑‑‑Defendant was in possession of the suit property and findings of fact recorded by, the Appellate Court and High Court in revision did not suffer from any infirmity‑‑‑Supreme Court declined to interfere with the judgments passed by the Courts‑‑‑Leave to appeal was refused.

Jaydayal Poddar (Deceased) through L.Rs. and another v. Mst. Bibi Hazra and others AIR 1974 SC 171 ref.

M. Aftab Iqbal Chaudhry, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Nemo for Respondent, Date of hearing: 20th June, 2002.

2003 S C M R 20

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwan Dat and Abdul Hameed Dogar, JJ

ABDUL HAMEED SOOMRO ‑‑‑ Applicant

Versus

SUI SOUTHERN GAS CO. LTD.‑‑‑Respondents

Civil Miscellaneous Application No. 3392 in Civil Appeal No. 63 decided on 18th September, 2002.

(On appeal from the judgment dated 22‑1‑2001 of this Court passed in C.A. No. 637 of 2001).

Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.X, R.2 & O.XXXIII, R.6‑‑‑Correcting typographical error‑‑‑Petitioner was management trainee but on account of inadvertent or typographical error his appeal was clubbed with civil petitions/appeals of temporary employees‑‑‑Case for shifting, his appeal from the heading "temporary employees" to the heading "management trainees" was made out by the applicant‑‑‑Required correction was made in the judgment‑‑‑Application was allowed.

Muhammad Akram Sheikh, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Applicant.

Ch. Muhammad Jamil, Advocate Supreme Court for Respondent.

Date of hearing: 18th September, 2002.

2003 S C M R 22

[Supreme Court of Pakistan]

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

KHAN MUHAMMAD MAHAR ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No. 85‑K of 2001, decided on 3rd October, 2002.

(On appeal from the judgment dated 6‑8‑2002 of the High Court of Sindh at Karachi passed in Criminal Acquittal Appeal Nos.20/2000, 3/2001 and 19/2000).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.10‑‑‑Constitution of _ Pakistan (1973), Art. 185(3)‑‑‑Suspension of sentence‑‑‑Accused according to Jail Authorities had already undergone substantive sentence of his imprisonment and the decision of his appeal was not likely to take place in near future‑‑‑Petition for leave to appeal was converted into appeal, the same was accepted and the sentence of accused was suspended in circumstances.

Government of Andhra Pradesh and another v. Anne Venkateswara Rao and others AIR 1977 SC 1096 ref.

Sh‑. Muhammad Akram, Senior Advocate Supreme Court for Petitioner.

Naveed Rasul Mirza, Prosecutor‑General, M. Afzal Siddiqui, Advocate Supreme Court and Raja Qureshi, Advocate‑General, Sindh for the State.

Date of hearing: 3rd October, 2002.

2003 S C M R 24

[Supreme Court of Pakistan]

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

SARDAR KHAN alias DARA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 508‑L of 2002, decided on 11th September, 2002.

(On appeal from judgment dated 23‑5‑2002, passed by the Lahore High Court, Lahore in Crl. A. No. 48 of 2002 and M.R. No. 11‑T of 2002).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 324 & 353‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Occurrence had taken place in front of the house of accused in sufficient daylight to identify him‑‑‑Ocular evidence had gone unchallenged and unrebutted‑‑‑Policemen had no grudge, grouse or enmity against the accused to wrongly involve him in the case‑‑­Specific role had been attributed to accused in F.I.R. which was supported by circumstantial evidence in the shape of recovery of blood from the place of occurrence and medical evidence‑‑‑Unimpeachable ocular evidence had rightly been believed by the Courts below‑‑‑Leave to appeal was refused to accused in circumstances.

Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Rehmat and others v. The State PLD 1959 SC (Pak.) 109; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Naik Muhammad alias Nota v. The State 1995 SCMR 317 distinguished.

Mirza Masood‑ur‑Rehman, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 11th September, 2002.

2003 S C M R 29

[Supreme Court of Pakistan]

Present: Syyed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

Syeda TAHIRA BEGUM and another‑‑‑Petitioners

Versus

Syed AKRAM ALI and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.52 of 2002, decided on 11th September, 2002.

(On appeal from the judgment of Peshawar High Court, Circuit Bench, Abbottabad, dated 19‑10‑2001 passed in Civil Revision No. 12 of 1997).

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

‑‑‑‑O.I, Rr.1 & 3‑‑‑Impleading a person as party‑‑‑Object‑‑‑Purpose of impleading a person as a party in a case is to provide such person an opportunity of hearing in the matter.

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

‑‑‑‑S. 47 & O.I, R.10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Execution application ‑‑‑Objection‑‑‑Misjoinder of necessary party ‑‑­Declaratory decree was passed in favour of plaintiff and execution application was filed‑‑‑Judgment‑debtor was represented through her husband as general attorney‑‑‑Husband of judgment‑debtor at the the of execution application filed objection petition on the ground that possession of the suit property was not with the judgment‑debtor, rather it was with him and he was not impleaded as party to the suit by the plaintiff‑‑‑Validity‑‑‑Suit property was purchased by the decree‑holders as far back as 13‑12‑1972, and more than three decades had gone by but the decree‑holders were still hovering in the Court to get their grievance redressed‑‑‑Husband of the judgment‑debtor was appearing throughout as attorney of his wife, if he had any grouse, he could have taken a formal step when he was defending the suit out of which the present execution petition had emanated‑‑‑Supreme Court did not allow the husband of the judgment‑debtor at such late juncture by employing technical objections to frustrate a decree secured by the decree ­holders‑‑‑Objection petitioner in a mala fide manner through technical objections had been able to impede the course of justice‑‑‑High Court had given cogent reasons in the judgment for setting aside the determinations of the two Courts below‑‑‑Objection petitioner failed to point out any legal infirmity in the judgment passed by High Court warranting interference by Supreme Court‑‑‑Leave to appeal was refused.

(c) Administration of justice‑‑‑

‑‑‑‑Technicalities‑‑‑Scope‑‑‑Cases of parties should be decided on merits‑‑‑If a party upon evidence brought on record has established his case on merits, then such party should not be knocked out on technical grounds‑‑‑Rules and procedures are framed to foster the cause of justice and should sparingly come into the way for dispensation of the same on merits.

Adam Khan Jadoon, Advocate Supreme Court for Petitioners.

Nemo for Respondents

Date of hearing: 11th September, 2002

2003 S C M R 32

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

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

Versus

YASIR ARAFAT and others---Respondents

Civil Petition No. .39-Q and Civil Miscellaneous Application No.33/Q of 2002, decided on 4th July, 2002.

(On appeal from the judgment/order dated 3-6-2002 passed by High court of Balochistan, Quetta in C.P. No.27 of 2002).

Educational institution---

---- Constitution of Pakistan (1973), Arts.185(2) & 199---Constitutional .jurisdiction of High Court---Finding of fact---Interference---Using unfair means in examinations---Cancelling of results---Controller of Examinations, Appellate Authority and Review Committee cancelled the results of the candidates on the ground of using unfair means in examinations---High Court in exercise of Constitutional jurisdiction, set aside the findings of facts by Board of Intermediate and Secondary Education---Contentions of the Authorities were that on having taken into consideration the answer sheets of the candidates alongwith continuation/extra sheets and material available on record positive opinion was formed that the candidate had succeeded in getting favourable results by adopting unfair means, therefore, in view of such findings of fact High Court had no jurisdiction to interfere in the lawful orders passed by the Authorities in exercise of jurisdiction under Art. 199 of the candidates High Court instead of looking into the conduct of the candidates who had invoked equitable jurisdiction of High Court for perpetuating wrongs committed by them, had illegally passed the orders contrary to record holding that the Board of Intermediate and Secondary Education was responsible for doing illegal acts; comparative results of candidates if were read with the findings recorded by Review Committee no other conclusion could be drawn except that not only unfair means had been used by the candidates to manoeuvre result in their favour but had obtained equal numbers in all subjects, therefore, it was a case of unfair means--­ Leave to appeal was granted by Supreme Court to consider the contentions of the Board Authorities.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

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

Nemo for Respondents.

Date of hearing: 4th July, 2902.

2003 S C M R 38

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

NOOR ZAMAN through Legal Heirs‑‑‑Petitioners

Versus

THE MEMBER (COLONIES), BOARD OF REVENUE and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1396‑L of 2002, decided on 16th May, 2002.

(On appeal from the judgment dated 4‑4‑2002 of the Lahore High Court, Lahore, passed in Writ Petition No. 3100 of 1993).

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

‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Grow More Food Scheme‑‑‑Allotment of land under such Scheme made in favour of respondent in year ‑1956 was cancelled in year 1962‑‑‑Notification dated 26‑4‑1971 directed restoration of such allottees‑‑‑Collector instead of restoring land to respondent allotted same to petitioner in year 1972 under temporary Scheme for five years‑‑‑Board of Revenue through judgment dated 8‑5‑1975 passed in revision petition filed by respondent directed him to wail till expiry of lease in favour of petitioner‑‑‑Petitioner again got extension of his lease up to Rabi, 1983‑‑‑Collector set aside such extension order and redressed respondents claim under Grow More Food Scheme‑‑‑Such order of Collector was upheld up to High Court‑‑‑Contention of petitioner based on the report of Audit Officer was that respondent having not brought under cultivation fifty per cent. of area was not eligible for restoration of his earlier allotment‑‑‑Validity‑‑‑Such report was totally one‑sided‑‑‑Initial allotment in favour of petitioner had been made in oblivion of such notification, thus his such contention was not of any help to him‑‑‑Petitioner was not in picture, when such notification was issued‑‑‑Petitioner had not challenged decision of Board of Revenue dated 8‑5‑1975, but had accepted the same‑‑‑Respondent for no fault of his had been successfully kept out of possession by petitioner for all such period‑‑‑Orders of Revenue Authorities maintained by High Court were unexceptionable and no interference could be made on any ground‑‑‑Supreme Court dismissed petition for leave to appeal in ‑circumstances.

Ch. Shaukat Ali Saqib, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th May, 2002.

2003 S C M R 41

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD YAQOOB through Legal Heirs‑‑‑Petitioner

Versus

FEROZE KHAN and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2473 of 2001, decided on 1st July 2002.

(On appeal from the order dated 25‑6‑2001 of the Lahore High Court, Rawalpindi Bench, passed in Civil Revision No. 197 of 1994).

(a) Islamic Law‑‑‑-

‑‑‑‑Gift‑‑‑Proof‑‑‑Challenge to verbal gift mutation in civil suit‑‑‑Trial Court decreed the suit, which decree was upheld by Appellate Court and concurred by High Court‑‑‑Validity‑‑‑Uncalled for pivotal role, which smacked of mala fides, had been played by Girdawar, who had allegedly got recorded statement of donor (ninety years old) and on the basis whereof verbal gift mutation had been made to get disputed land mutated with connivance of Patwari‑‑‑Girdawar had not acted in accordance with order of Tehsildar as no such order could be produced, which only found mention at the back of mutation entry having no legal sanctity whatsoever ‑‑‑Girgdawar had not appeared before any Court to prove that he had recorded statement of donor under direction of Tehsildar‑‑‑Possession of disputed land had never been handed over to defendant and no evidence would be required in this regard as defendant had admitted same himself‑‑‑No one would like to make any admission against his own interest unless same was true‑‑‑Such principle had rightly been taken into consideration by Courts below‑‑‑Delivery of possession being an essential ingredient to constitute a valid gift was lacking in the case‑‑‑No justification appeared for exclusion of legal heirs from inheritance of donor, which made the authenticity and genuineness of gift doubtful‑‑‑Impugned judgment was correct, just and did not suffer from any jurisdictional error and legal flaw calling for interference by Supreme Court concurrent findings of fact arrived at by Courts below‑‑‑Supreme Court dismissed the petition for leave to appeal being devoid of merits.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑--

‑‑‑‑Art. 31‑‑‑Admission by party to proceeding‑‑‑Effect‑‑‑No one would like to make any admission against his own interest, unless same was true‑‑‑Such admission could not be treated as an innocent admission as same would be a new phenomenon having no legal foundation all all.

(c) Islamic Law‑‑‑

‑‑‑‑ Gift‑Delivery of possession‑‑‑Essential ingredient to constitute a valid gift‑‑‑Gift without possession is ab initio void.

Shamshad. A. Shah v. Hassan Shah PLD 1964 SC 143; Hedaya, Vol. III, Seconu dn., p. 482; Amir Ali's Muhammadan Law, Vol. I, Chap. V; Baillie's Digest of Muhammadan Law, Part 2, Second Edn., pp 203‑ 204; Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Nair and another AIR 1945 PC 54; Jamma‑ush‑Shittat; Sharaya‑ul‑Islam; Ghulab Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309; Sadik Hussain Khan v. Hashim Ali Khan LIZ 43 IA 212 and Bashir Ahmed v. Muhammad Rafiq 2002 SCMR 1291 ref.

(d) Islamic Law ‑‑‑

‑‑‑‑Gift‑‑‑Proof‑‑‑Factum of gift could be proved by adducing cogent and convincing evidence.

Chaudhry Muhammad Tariq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing 1st July, 2002

2003 S C M R 46

[Supreme Court of Pakistan]

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

MITHO KHAN and another‑‑‑Petitioners

Versus

ABDUL JABBAR and 9 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.377‑K of 2002, decided on 22nd July, 2002.

(On appeal from the judgment of the High Court of Sindh, Circuit Bench, Hyderabad, dated 8‑2‑2002, passed in C.R.P. No.65 of 1986).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Findings of High Court‑‑‑Validity‑‑‑No misreading or non­ reading of evidence or misconstruction of facts was found‑‑‑No question of general public importance was involved‑‑‑Impugned judgment based on law laid down by Supreme Court not calling for interference‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

Rasool Bux Uner, Advocate Supreme Court with Akhlaq Ahmed Siddiqui, Advocate‑on‑Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd July, 2002.

2003 S C M R 50

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Tanvir Ahmed Khan and Sardar Muhammad. Raza Khan, JJ

REHMATULLAH KHAN and others‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Petroleum and Natural Resources Division, Islamabad and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.256‑P of 2001; decided on 18th July, (On appeal from the judgment dated 25‑4‑2001 of the Peshawar High Court, Peshawar passed in F. R. A. No. 1 of 2000)

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

‑‑‑‑Ss. 12 & 42‑‑‑Contract Act (IX of 1872), Ss. 182 & 2‑‑‑Easements Act (V of 1882), Ss.52 & 60‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration, specific performance of agreement qua installation of petrol pump and recovery of damages‑‑‑Plaintiff based his claim on application made for installation of petrol pump, over which defendant‑Company inspected spot and prepared feasibility report‑‑‑Dismissal of suit by‑ Trial Court was upheld by High Court‑‑‑Validity‑‑‑Matter had never proceeded legally and technically beyond filing of application and a few actions like preparation of feasibility report etc.‑‑‑No contract or agreement had ever been signed between parties regarding installation' of filling station‑‑­Infrastructure raised on the spot by plaintiff was a unilateral act without any agreement or contract between parties‑‑‑No contract of agency existed between parties to ascertain wherefrom as to whether company had employed plaintiff to do any act for company or to represent company in dealings with third persons‑‑Relationship of principal and agent could not be determined between parties in absence of any such contract‑‑‑Mere tiling of , such application would not create any right for grant of an agency or a licence‑‑­Plaintiff or his legal heirs could not assert any right of an agent‑‑‑Permission by company to plaintiff to sell petrol in his filling station, if at all granted, would have constituted a licence, which if granted could have been withdrawn at any time‑‑‑No vested right had been created by filing ‑an application or submission of feasibility report‑‑‑No relief under S. 42 of Specific Relief Act, 1877, could be sought in event of non‑creation of any vested right‑‑‑Plaintiff had .rightly been non‑suited by Courts below‑‑­Supreme Court dismissed the petition and refused to grant leave to appeal in circumstances.

(b) Licence and licensee‑‑‑

‑‑‑‑"Licence"‑‑‑Connotaion‑‑‑"Licence" is a permission granted by one to another to do some act or enjoy certain privilege and is not a creation of contract and does not confer any right upon licensee to create any interest etc.

Fifth Edition of Black's Law Dictionary, Fifth Edn., p. 829 ref.

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

‑‑‑‑S. 42‑‑‑Declaratory relief‑‑‑Entitlement‑‑‑Such relief could not be sought in event of non‑creation of any vested right.

Sh. Wazir Mohmand, Advocate Supreme Court for Petitioners.

Nemo for Respondents

Date of hearing: 18th July, 2002

2003 S C M R 54

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Khalil‑ur‑Rehman Ramday, JJ

ALI MUHAMMAD and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.384 of 2000, decided on 12th September, 2002.

(On appeal from the judgment, dated 1‑12‑1999 passed by the High Court of Sindh, Bench at Sukkur in Criminal Appeal No. D‑16 of 1999).

(a) Control of Narcotic Substances Ordinance (XXV of 1995)‑‑‑-

‑‑‑‑Ss.9(c)/15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether in the facts and circumstances of the case, the impugned judgment did not suffer from misreading of evidence on the record having the potentialities of creating doubt in relation to the accused.

(b) Control of Narcotic Substances Ordinance (XXV of 1995)‑‑‑-

‑‑‑Ss.9(c)/15‑‑‑Appraisal of evidence‑‑‑Recovery of ten kilograms of "Charas" from the accused had been proved beyond doubt by the confidence ­inspiring prosecution evidence‑‑‑Accused had not challenged the nature of the recovered substance being not "Charas" or narcotic before the Trial Court or the High Court and they could not now turn around and say that because only one slabe of half kilogram of "Charas" was recovered from them which was sent to Chemical Examiner who had opined it to be "Charas" therefore, they be sentenced according to the quantity of "Charas" sent to Chemical Examiner‑‑,Prosecution witnesses when examined at the trial were not even suggested by the accused that the remaining property produced in Court was not the same or that the same had been tampered with‑‑‑Accused also did not pray before the Courts below that entire case property be sent to Chemical Examiner for report as to challenge that it was not a narcotic substance‑‑‑Conviction and sentence of accused were upheld in circumstances.

Nadir Khan and another v. The State 1988 SCMR 1899 ref.

M. Bilal, Senior Advocate Supreme Court for Appellants.

Suleman Habibullah, Additional A.‑G., Sindh and Raja Abdul Ghafoor, Advocate‑on‑Record for the State.

Date of hearing: 12th September, 2002:

2003 S C M R 59

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

ZAHOOR and another----Petitioners

Versus

SAID‑UL‑IBRAR and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No.81‑P of 2001, decided on 20th March 2002.

(On appeal from the judgment dated 19‑9‑2001 of the Peshawar High Court, Peshawar passed in Criminal Revision No.22 of 2001).

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

‑‑‑‑S. 5‑‑‑Criminal Procedure Code (V of 1898), Ss. 203, 247, 439 & 561‑A‑-‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Non‑restoration of the complaint dismissed for non‑prosecution‑‑‑Validity‑‑‑Order of the Trial Court dismissing the complaint for non‑prosecution under‑3. 247, Cr.P.C. due to the absence of the complainant in a cognizable and non‑compoundable case was void ab initio, patently illegal and utterly without jurisdiction‑‑High Court in such circumstances was competent to set aside the said order under its revisional jurisdiction and also recall and vary the same in exercise of its inherent powers under S. 561‑A, Cr.P.C.‑‑‑Petition for leave to appeal was converted into appeal and allowed in circumstances, orders of the Courts below were set aside, the complaint was restored and the Trial Court was directed to proceed therewith in accordance with law on the merits of the case.

Banarus Khan v. The State PLD 1995 Pesh. 103; Syed Manzoor Hussian Shah v. Syed Agha Hussain Naqvi 1983 SCMR 775; Muhammad Khalir‑ur‑Rehman v. Mst. Shabana Rahman PLD 1995 SC 633; Muhammad Akram v. Haji Mir Aziz Ahmed 2000 PCr.LJ 489 and Pramatha Nath Talukdar v. Saroj Ranjan Sarkdar AIR 1962 SC 876 ref.

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

‑‑‑‑S.203‑‑‑Dismissal of compalint‑‑‑Entertainment of second complaint not barred‑‑‑Dismissal of a complaint under 5.203, Cr.P.C. does not bar the entertainment of a second complaint on the same facts in exceptional circumstances, e.g., where the previous order was passed on an incomplete record, or on a misunderstanding of the nature of the complaint, or it being manifestly absurd, unjust or foolish or where new facts had been adduced which could not, with reasonable diligence, have been brought on the record in the previous proceedings‑‑‑Where however, a decision has been given against the complainant upon a full consideration of his case, giving another opportunity to him or any other person for having his complaint enquired into, cannot be in the interest of justice.

Pramatha Nath Talukdar v. Saroj Ranjan Sarkdar AIR 1962 SC 876 ref.

Mir Adam Khan, Advocate Supreme Court for Petitioners.

M. Shah Badshah, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record for Respondent No.2.

Miss Musarat Hilali, Additional Advocate‑General, N.‑W.F.P. for the State.

Date of hearing: 26th February, 2002.

2003 S C M R 64

[Supreme Court of Pakistan]

Present: Sved Deedar Hussain Shah, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

MUREED and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Petition No. 17‑K of 2002, decided 8th July, 2002.

(On appeal from judgment dated 25‑8‑2001 passed by the High Court of Sindh, Bench at Sukkur, in Criminal Miscellaneous A.No.S‑93 of 2001).

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

‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/324/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Incident was of day time‑‑‑Specific role of causing injuries to the deceased and prosecution witnesses was attributed to each accused‑‑‑Ocular testimony was corroborated by medical evidence‑‑­Impugned judgment did not suffer from, any misreading or non‑reading of available material or any misconstruction of law and was based on valid and sound reasons in consonance with law and was not open to any exception‑‑­Delay of 145 days in filing the petition for leave to appeal had not been explained with valid and cogent reasons‑‑No question of public importance was involved in the case‑‑‑Petition was dismissed on merits as well as on the point of limitation and leave to appeal was declined to accused accordingly.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioner.

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

M.L. Shahani, Advocate Supreme Court and N.C. Motiani, Advocate‑on‑Record for the Complainant.

Date of hearing: 8th July, 2002.

2003 S C M R 68

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

Mst. QUDRAT BIBI‑‑‑Petitioner

Versus

MUHAMMAD IQBAL and another‑‑‑Respondents

Criminal Petition No. 196 of 2002, decided on 22nd July, 2002.

(On appeal from the order dated 10‑5‑2002 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.277/B/C/2002).

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Cancellation of pre­ arrest bail ‑‑‑F.I.R. was promptly lodged in which the accused was attributed the specific role of causing injuries with a hatchet on the neck of the deceased‑‑‑No mala tides had been, prima facie, established against the complainant for false involvement of accused in the commission of the offence‑‑‑Complainant being the sister of the deceased and an eye‑witness of the incident could not possibly allow the real culprit to escape and falsely involve some one else in his place‑‑‑Even otherwise phenomenon of substitution was very rare in the area‑‑‑Court at bail stage should not have stamped the prosecution witness who had recorded their statements promptly to be false witnesses and accepted the statements of defence witnesses whose statements were recorded after considerable period of the occurrence by the Investigating Officer to conclude that the accused was innocent‑‑‑Reasons prevailed upon the High Court as well as the Sessions Court were, therefore. not acceptable being contrary to the principle of settled law‑‑‑Overt act attributed to the accused of causing hatchet injury to the deceased was corroborated by medical evidence‑‑‑Petition for leave to appeal was converted into appeal in circumstances and allowed as a result whereof pre­ arrest bail granted to accused was recalled.

Syed Saeed Muhammad Shah and another v. the State 1993 SCMR 550; Manzoor and 4 other v. The State PLD 1972 SC 81; Muhammad Safdar and others v. The State 1983 SCMR 645; Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97; Muhammad Sadik and others v. The State 1980 SCMR 203; Allah.Ditta and others v. The State 1990 SCMR 307; Razi Khan v. Muhammad Mushtaq and another 1996 SCJ 779 and Muhammad Hussain v. State PLJ 1996 SC 795 ref, (b) Criminal Procedure Code (V of 1898)‑‑‑---

‑‑‑‑S.497/498‑‑‑Penal Code (XLV of 1860), S.300/34‑‑‑Bail‑‑‑Police opinion ‑‑‑Ipsi dixit opinion of the Investigating Officer cannot be accepted to exonerate the accused from the commission of the offence.

Manzoor and 4 other v. The State PLD 1972 SC 81 ref.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Pre‑arrest bail‑‑­Principle‑‑‑Concession of bail before arrest is granted to an accused if it is established that his involvement in the case in based on mala fides by the prosecution.

Muhammad Safdar and others v. The State 1983 SCMR 645 and Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 ref.

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

Malik Rab Nawaz Noon, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1.

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

Date of hearing: 19th July, 2002.

2003 S C M R 74

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C. J., Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

ABDUL HAQUE and others‑‑‑Appellants

Versus

SHAUKAT ALI and 2 others‑‑‑Respondents

Civil Appeal No.68 of 2001, decided on 12th September, 2002.

(On appeal from judgment dated 5‑3‑1999 passed by the Lahore High Court, Multan Bench, Multan in RSA No.380 of 1970).

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

‑‑‑‑OXLI, R.22‑‑‑Cross‑objection, non‑filing of‑‑‑Effect‑‑‑Respondent who does not file an appeal of cross‑objection against a part of a decree can nevertheless support the decree under O.XLI, R.22, C.P.C. on any of the grounds decided against him by the Courts below‑‑‑Appellate Court, in appropriate case, may allow a party, on consideration of justice, to support judgment and decree under appeal on a ground which had been found against him in the judgment and decree‑‑‑For a party in whose favour the decree was passed by the First Appellate Court, it was not obligatory to file appeal or cross‑objections before High Court‑‑‑Such party could defend the decree of the First Appellate Court on all the grounds, available to him.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983‑ SC 53; Syed Ziaul Hasan alias Thah Peer v: The State 1998 SCMR 1582; Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others AIR 1965 SC 669 and Tepfulo Nakhro Angami v. Shrimati Ravoluei alias Rani M. Shaiza AIR 1972 SC 43 ref.

(b) Evidence‑‑‑

‑‑‑‑ Evidence led beyond the scope of pleadings is not permissible.

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

‑‑‑‑Ss. 12 & 27(b)‑‑‑Specific performance of agreement to sell‑‑‑Bona fide purchaser for valuable consideration without knowledge of prior agreement‑‑‑Onus to prove‑‑‑Sale in favour of defendant was assailed by plaintiff on the ground of having prior agreement to sell in his favour and sought specific performance of the agreement in his favour‑‑‑Plaintiff failed to prove knowledge of prior agreement, thus First Appellate Court allowed the appeal filed by the defendant and judgment and decree passed by Trial Court in favour of the plaintiff was set aside‑‑‑Second appeal was filed by the plaintiff in the High Court which was allowed and judgment and decree passed by the First Appellate Court were reversed‑‑‑Validity‑‑‑As the plaintiff had failed to discharge the onus to prove the knowledge of defendant of the prior agreement to sell, the protection of S.27(b) of Specific Relief Act, 1877, was available to the defendant who was transferee of the suit‑land for value in good faith and without notice of any, prior agreement to sell‑‑­First Appellate Court had rightly dismissed the suit for specific performance of agreement in favour of the plaintiff‑‑‑Judgment and decree passed by the High Court were set aside and that of the First Appellate. Court was restored‑‑‑Appeal was allowed.

Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Mst, Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others PLD 1994 SC 2189; Mrs. Anwara Chaudhary v. M. Majid and others PLD 1964 SC 807; Kanwal Nain and 3 others v. Fateh shan and others PLD 1983 SC 53; Province of Punjab and others v. Government Employees Cooperative Housing Society Limited, Lahore and others 1996 SCMR 1682; Muhammad Afzal Khan and another v. Muhammad Latif and another 1995 CLC 195; Mian Zafar Iqbal and others v. Bashir Ahmad and others PLD 1989 Lah. 152 and Shaukat Ali v. Sikanadar Hayat and others 1998 SCMR 1201 ref.

Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.

Ch. Imdad Ali, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Dates of hearing: 11th and 12th September, 2002.

2003 S C M R 80

[Supreme Court of Pakistan]

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

EXECUTIVE ENGINEER, PROVINCIAL BUILDING DEPARTMENT, DISTRICT ATTOCK and another‑‑‑Petitioners

Versus

KHALID MEHMOOD and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.2756 and Civil Miscellaneous application No.3186 of 2001, decided on 11th September, 2002.

(On appeal from judgment dated 27‑3‑2001, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in C. R.No.97‑D/89).

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S. 42‑‑‑Contract Act (IX of 1872), S.73‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration‑‑‑Contract of building construction‑‑‑Defendants withheld security amount deposited by plaintiff on ,the plea that work done was not up to the mark, terms and conditions of contract‑‑‑Plaintiff by tiling suit challenged such action of defendants and produced in evidence completion certificate‑‑‑Trial Court decreed the suit‑‑­Appellate Court disbelieved completion certificate and set aside the decree‑‑­High Court in revision petition filed by plaintiff restored the decree passed by Trial Court‑‑‑Validity‑‑‑Completion certificate placed on record had been relied upon by both the parties‑‑‑Such document clearly showed that work had been carried on within stipulated period in terms of agreement and plaintiff was entitled to take back security amount deposited by him‑‑­Defence witness in unequivocal terms had stated on oath that completion certificate had been issued by Executive Engineer‑‑‑Appellate Court without carefully examining completion certificate had observed that same was a false document‑‑‑Defendants had neither raised any objection nor questioned the correctness of completion certificate at the time of its production‑‑‑Impugned judgment did not suffer from misreading or non‑reading of evidence or any jurisdictional error or misconstruction of facts and law‑‑‑Supreme Court dismissed the .petition for leave to appeal in circumstances.

M. Zaman Bhatti, Advocate Supreme Court, Rao Muhammad Yusuf Khan, Advocate‑on‑Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 11th September, 2002.

2003 S C M R 83

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogai, JJ

MUHAMMAD BASHIR and another‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB through Collector of District Gujrat and others‑‑‑Respondents

Civil Appeal No. 101 of 1997, decided on 26th September, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 10‑4‑1996 passed in Civil Revision No. 1535 of 1995).

(a) Limitation Act (IX of 1908)‑‑‑

‑-----S.5‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑heave to appeal was granted by Supreme Court to consider, whether in the circumstances of the case, High Court was justified in condoning the delay of 26 days in filing revision petition by the Provincial Government and whether the exercise of discretion would amount to giving preferential treatment to the Government.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Public functionaries‑‑‑Public functionaries are not ‑entitled to any preferential treatment in the matter of condonation of delay and they are to be treated on equal footing with an ordinary litigant‑‑‑With the passage of time a ,valuable right accrues in favour of the opposite‑party which should not be lightly disturbed and destroyed.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Condonation of delay‑‑‑Revision barred by 26 years‑‑‑Subject‑matter of the suit was valuable Government land therefore, High Court condoned the delay and revision was allowed ‑ resultantly the case was remanded to Trial Court for decision afresh‑‑‑Validity‑‑‑Supreme Court pointed out that in social, economic and cultural set‑up of Pakistan, Government Departments and public functionaries generally pay little heed to the public interest, which is mostly treated as subservient to the private interest‑‑‑Supreme Court further noted that, the Government cases generally fail on account of neglect in appearance, mishandling or improper conduct for various reasons‑‑‑Paramount consideration behind the exercise of discretion in remanding the case to the Trial Court after condoning delay in the present case, was the public interest rather than any other consideration‑‑‑Discretion to condone the delay is wide enough in a Court depending on variety of factors, particularly sufficient cause shown by a party to the satisfaction of the Court‑‑‑No hard and fast rule could be laid down to tie down the hands of a superior Court‑‑‑Superior Court always acts in aid of justice rather than to frustrate it‑‑‑High Court in exercise of its revisional jurisdiction was empowered to deal with the question of limitation before it‑‑‑High Court in entertaining the revision petition and while condoning the delay, in circumstances, did not act without jurisdiction‑‑‑Once it was conceded that High Court had jurisdiction to exercise its discretion for condonation of delay, Supreme Court would not interfere with the exercise of discretion unless it was made to appear on the face of record that the discretion was exercised illegally or arbitrarily‑‑­Legal formalities and technicalities were intended to safeguard the paramount interest of justice and were devised with a view to secure the same against arbitrariness, errors of individual judgment and mala fides‑‑‑Exercise of discretion in the present case did not suffer from any inherent defect of law, arbitrariness, lack of jurisdiction or acting on surmises and conjectures‑‑­High Court being fully satisfied with the sufficiency of cause shown by the Government for condonation of delay for vital and sound reasons, Supreme Court declined to interfere with the exercise of discretion by High Court which was neither illegal nor unreasonable or against the settled norms of jurisprudence‑‑‑Appeal was dismissed.

Irtiqa Rasool Hashmi v. Water and Power Development Authority 1980 SCMR 722; Naseern Ahmed Chaudhry v. Chairman, Punjab Labour Appellate Tribunal 1995 SCMR 1655 and Water and Power Development Authority v., Zahoor Ahmad 1994 SCMR 960 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Discretion‑‑‑Scope‑‑‑Such jurisdiction is always discretionary and equitable in nature and no party is entitled to it as of right‑‑Object of superior Courts while exercising its discretionary jurisdiction is to foster the ends of justice, preserve the rights of parties and to right a wrong and, keeping the object in view, it may in equity, set aside or annul a void judgment. or declined to enforce it by refusing to intervene in the circumstances of the case.

(e) Administration of justice‑‑‑--

‑‑‑‑ Rules of .procedure‑‑‑Scope‑‑‑Technicalities of law are always avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done‑‑‑Rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and unless they are insurmountable, ends of justice, always outweigh the manner of practice and procedure.

Zafar Iqbal Chaudary, Advocate Supreme Court for Petitioners.

Muhammad Zaman Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 26th September, 2002.

2003 S C M R 89

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

GHULAM AKBAR LASI‑‑‑Petitioner

Versus

RETURNING OFFICER FOR NA‑270 AWARAN‑CUM-LASBELLA and others‑‑‑Respondents

Civil Petitions Nos, 1558, 1559 and 1560 of 2002, decided on 25th September, 2002.

(On appeal from the judgment dated 19‑9‑2002 of the High, Court of Balochistan, Quetta, passed in Writ Petitions Nos.478, 479 and 480 of 2002).

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

‑‑‑‑Ss. 9(c), 15 & 25‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Disqualification to‑ contest election‑‑‑Voluntary return (plea bargaining)‑‑­Petitioner was declared disqualified under S.15 of National Accountability Bureau Ordinance, 1999, to contest election on the ground that the petitioner was released on voluntary return (plea bargaining)‑‑‑Contention of the petitioner was that the Chairman, National Accountability Bureau had released him in exercise of powers under S.9(c) of the National Accountability Bureau Ordinance, 1999, and the disqualification mentioned in S.15 of the said Ordinance was not applicable‑‑‑Validity‑‑‑Contention overlooked the striking feature of the warrant of release that the petitioner was released by the Chairman in exercise of powers under S.25 of the National Accountability ‑Bureau Ordinance, 1999, read with Ss.9(c) & 15 of the Ordinance and not on the strength of the powers under S.9(c) of the. Ordinance alone‑‑‑Guidelines for release of an accused person, recovery of the amount in respect of which the offence had been committed and imposition of conditions in respect thereof were provided in the provisions of S.9(c) of National Accountability Bureau Ordinance, 1999, and the same had no nexus with disqualification of an accused person who had availed the benefit of S.25 of National Accountability Bureau Ordinance, 1999, for which there existed a specific provision in the Ordinance in the form of S.15‑‑‑Supreme Court clarified if the legislative intent was that disqualification to contest elections or to hold a public office should be imposed as a condition under S.9(c) of National Accountability Bureau Ordinance, 1999, then the proviso to S.15 of National Accountability Bureau Ordinance, 1999, would not have been enacted and made part of the Ordinance‑‑‑Election Authorities had rightly declared the petitioner as disqualified to contest the election for National Assembly‑‑‑Leave to appeal was refused.

Kh. Ahmed Tariq Rahim, Advocate Supreme Court with S. A. M. Quadri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th September, 2002

2003 S C M R 95

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

MEHBOOB AHMAD and another‑‑‑Appellants

Versus

MUHAMMAD KHAN alias KALU and another‑‑‑Respondents

Criminal Appeals Nos. 163 and 164 of 1999, decided on 13th June, 2002.

(On appeal from judgment dated 15‑12‑1998 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No.67, Murder Reference No. 161 and Criminal Revision No. 104 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 452‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider whether the guilt of the accused had been proved beyond reasonable doubt and to scrutinize the true import and significance of his plea taken in his statement under S. 342, Cr.P.C. and its effect over the prosecution case and to consider in depth if the High Court was legally justified and the reasons recorded were valid and legal for converting the death penalty of accused into imprisonment for life.

(b) Penal Code (XLV of 1860)—--­

‑‑‑‑Ss. 302 & 452‑‑‑Appraisal of evidence‑‑‑Witnesses though were related to the deceased but on the face of record did not appear to be inimically disposed towards the accused so as to suspect their veracity ‑‑‑Presence of eye‑witnesses at the scene of occurrence had been adequately accounted for whose intrinsic value could not be shattered during lengthy cross-­examination‑‑‑Ocular testimony was in conformity with medical evidence and facts and circumstances of the case and had been rightly and justifiably relied upon by the Courts below‑‑‑Conviction of accused was maintained having been correctly founded on legal and admissible evidence on record‑‑‑Accused had fired ,a single shot which proved to be fatal and he did not repeat the fire‑‑‑Accused was aged about 60 years at the time of occurrence and by now he had attained the age of almost 70 years‑‑‑Accused also had no direct motive to commit the murder of the deceased‑‑‑High Court had neither acted illegally nor arbitrarily in altering the sentence of death of accused to imprisonment for life and the discretion justly and fairly exercised by it in this regard did not call for any interference‑‑‑Sentence of accused, was thus upheld but benefit of S. 382‑B, Cr.P.C. was not extended to accused as he had remained fugitive from law for a period of over two years.

Malik Rab Nawaz Noon, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant (in Criminal Appeal No. 163 of 1999).

Abdul Karim Khan Kundi, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 1 (in Criminal Appeal No. 163 of 1999).

Ch. Ghulam Ahmad, Advocate Supreme Court for Respondent No.2 (in Criminal Appeal No. 163 of 1999).

Abdul Karim Kundi, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Appellant (in Criminal Appeal No. 164 of 1999).

Ch. Ghulam Ahmad, Advocate Supreme Court for Respondent (in Criminal Appeal No. 164 of 1999).

Date of hearing: 13th June, 2002.

2003 S C M R 98

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ.

JEHANZEB and another‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 137 and 183 of 2001, decided on 15th April, 2002.

(On appeal from the judgment of the High Court of Balochistan, Quetta dated 19‑3‑2001 passed in Crl. Acq. Appeal No. 187 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 308 & 302(b)‑‑‑Appraisal of evidence‑‑‑Complainant who was the natural witness of the occurrence and knew the accused being her son‑in‑law as well as her tenant had charged the accused in the promptly lodged F.I.R. for the murder of her daughter‑‑‑False implication or mistaken identity of accused, therefore, was not possible as the complainant could easily identify him at the spot in the street light and the light of the motor car in which he ran away after the commission of offence‑‑‑Accused had killed his wife from whom he had a daughter who was Wali of the deceased and also direct descendant of the accused‑‑‑Accused had committed "Qatl‑i‑Amd" and he was liable to be convicted and sentenced under S.302(b), P.P.C. by way of Tazir‑‑‑Conviction of accused under S.308, P.P.C. was consequently altered to S.302(b), P.P.C. and his sentence of 14 years' R.I. was enhanced to imprisonment for life with the direction to pay Rs.50,000 as compensation under S.544‑A, Cr.P.C. to the legal heirs of the deceased excluding himself.

Faqirullah v. Khaliluzzaman 1999 SCMR 2203 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Sentence‑‑‑Motive‑‑‑Where motive as ‑ alleged by the prosecution is not satisfactorily proved on record, such factor may be considered while deciding the quantum of sentence.

Malik Rab Nawaz Noon, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Appellant (in Criminal Appeal No. 137 of 2001).

Arshad Ali, Advocate Supreme Court for the State (in Criminal Appeal No. 137 of 2001).

Amanullah Kaurani, Advocate Supreme Court and M. W.N. Kohli, Advocate‑on‑Record for Appellant (in Criminal Appeal No. 183 of 2001).

Malik Rab Nawaz Noon, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents (in Criminal Appeal No. 183 of 2001).

Date of hearing: 15th April, 2002.

2003 S C M R 104

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Tanvir Ahmed Khan and Sardar Muhammad Raza Khan, JJ

GOVERNMENT OF N.‑W.F.P through Chief Secretary and another‑‑‑Petitioners

Versus

Dr. HUSSAIN AHMAD HAROON and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos.270‑P to 272‑P of 2002, decided on 18th July, 2002.

(On appeal from the judgment dated 21‑4‑2001 of the N.‑W.F.P. Service Tribunal, Peshawar, passed in Appeals Nos.1847/1999, 1769/99 and 1979/1999 respectively).

(a) Administration of justice‑‑‑

‑‑‑‑Justice should not only be done, but manifestly and undoubtedly should be seen to have been done ‑‑‑Guidelines to achieve such objective/goal‑‑‑No person should be a judge in his own cause (nemo debet esse judex in causa propria sua)‑‑‑Applicable to Courts, Tribunals and Authorities having jurisdiction to determine judicially rights of parties‑‑‑Principles.

It is an age‑old fundamental principle of law that justice should not only be done, but manifestly and undoubtedly should be seen to have been done. To achieve this objective/goal, it is of prime importance that a Judge/person equipped with the authority of decision should not be having any sort of personal interest in the outcome of the matter under issue before him. The conduct of proceedings should not generate any reasonable apprehension in the mind of a person that the Deciding Officer was by any manner prejudiced against him.

(b) Bias‑‑‑

‑‑‑‑Bias attributed to Judge/Member of Tribunal‑‑‑Bias and pecuniary interest‑‑‑Distinction‑‑‑Assuming possibility, of bias in mind of Judge/Deciding Officer‑‑‑Question of fact‑‑‑To be decided independently in each case‑‑‑Bias, determination of‑‑‑Test.

There is no doubt that any direct pecuniary interest, however, small in the subject of inquiry does disqualify a person from acting as a Judge in the matter.

If he has any legal interest in the decision of the question in any way, he is disqualified no matter how small the interest may be.

The least pecuniary interest in subject‑matter of litigation will disqualify any person from acting as a Judge.

A person, who has a judicial duty to perform, disqualifies himself from performing it, if he has a pecuniary interest in the decision, which he is about to give or a bias, which renders him otherwise than an impartial Judge. If he has a pecuniary interest in the success of the accusation, he must not be a judge.

It is to be judged whether a reasonable person in the similar situation would assume the possibility of bias in the mind of deciding officer. It is always a question of fact to be decided independently in each case.

Every member of a judicial proceedings must be able to act judicially, and it is that Judges should be able to act impartially, objectively and without any bias. In such cases, the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of Tribunal might have operated against him in the final decision of Tribunal. It is in this sense that it is often said that justice must not only be dons, but must also appear to be done. This rule has been asserted, not only in the case of Courts of Justice and other Judicial Tribunals, but in the case of authorities which, though in no sense to be called Court, have to act as Judges of the rights of others.

In dealing with cases of bias attributed to members constituting Tribunals; it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however, small it may be in a subject‑matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed, but instead a bias is suggested, it often becomes necessary to consider, whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the mind of litigant or the public at large a reasonable doubt about the fairness of administration of justice. It would always be a question of fact to be decided in each case. The principle Nemo debit esse judex in propria causa precludes a Judge, who is interested in the subject‑matter of a dispute from acting as a justice therein. This principle applies not only to justices, but to all Tribunals and bodies, which are given jurisdiction to determine judicially the rights of parties.

Dimes v. Grand Junction Canal Co. (1852) HH Cas. 759; Federation of Pakistan v. Muhammad Akram Shaikh 1990 PSC 388. and Manak Lal, Advocate v. Dr. Prem Chan Singhvi and others PLD 1957 SC (Ind.) 346 ref.

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

‑‑‑‑S. 4‑‑‑North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 3(b) & 4(1)(b)(iv)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal from service‑‑‑Service Tribunal accepted appeals of civil servants‑‑‑Plea raised by Authority was. that civil servants referred departmental representations/appeals to Governor, who was not Competent Authority, as such their approach to Service Tribunal without availing such remedy was not proper‑‑‑Validity‑‑‑Record showed that Section Officer of parent Department had sent a letter to civil servants asking them to send their representations to Competent Authority, which they had wrongly sent to the Governor‑‑‑Section Officer seized of representations was bound to send them to Competent Authority instead of writing such letter to civil servants‑‑‑Such error being a rectifiable irregularity could easily have been removed by Section Officer of parent Department by forwarding representations to Competent Authority‑‑‑Such was the minimum expectation from Section Officer, which he had deliberately avoided with impunity‑‑‑Civil servants in such circumstances could not be non? suited.

1992 SCMR 1789 and 1988 SCMR 1458 ref.

(d) North‑West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑--

‑‑‑‑Rr. 3(b), 4(1)(a)(iii), 4(1)(b)(iv) & 5‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Dismissal from service‑‑‑Observing strike against posting of non‑technical Secretary, Health Department, though Authority had declared illegal such strike‑‑‑Secretary after imposing minor penalty of stoppage of two years' increments transferred civil servants to different places‑‑‑Civil servants were then issued show‑cause notices for refusing to obey transfer orders, criticizing Government policies, levelling false allegations against higher officers and restoring to illegal strike‑‑‑Civil servants failed to respond notices and were directed to appear before Secretary, Health as Authorised Officer‑‑‑Civil servants' application to Chief Secretary for change of Authorised Officer against whose posting 'they had been agitating throughout‑‑‑Chief Secretary did not respond to such application‑‑‑Secretary, Health (Authorised Officer) dismissed civil servants from service‑‑‑Service Tribunal reinstated civil servants in service allowing Authority to. hold fresh enquiry through an independent officer or Enquiry Committee ‑‑‑Validity‑‑?Civil servants could not respond to show‑cause notices as same had been issued during the period, they were in jail‑‑‑Application for change of Authorised Officer had not been attended to for reason best known to the Authority‑‑‑Secretary, Health (Authorised Officer), in circumstances could not be said not having ill‑feelings against civil servants (doctors) for their continuous agitation respecting his posting‑‑‑Apprehension of civil servants for change of Authorised Officer was reasonable‑‑‑Least demand of justice under such circumstances was that matter should have been entrusted to an independent person instead of Secretary, Health‑‑‑No independent enquiry had been held ‑‑‑Departmental enquiry could be dispensed with and summary procedure could be adopted instead, but in the present case, all such actions had been initiated and finalised with haste without providing opportunity to civil servants‑‑‑Procedure adopted by Authority being highly arbitrary could not be termed as a fair treatment to civil servants‑‑‑Service Tribunal had given cogent reason for accepting appeals of civil servants‑‑‑Supreme Court dismissed petition for leave to appeal being without force.

(e) Constitution of Pakistan (1973)‑‑‑-

‑‑‑‑Arts: 14 & 17‑‑‑Dignity of a man‑‑‑Civil service‑‑‑Civil servants (doctors) demanding betterment of their service structure‑‑‑Observing strike at call, of Pakistan Medical Association‑‑‑Authority declared such strike illegal and instead of adopting amicable method put majority of doctors behind the bars‑‑‑Validity‑‑‑Such attitude of Authority was violative of Art. 14 of the Constitution which upholds the dignity of man as his inviolable right‑‑‑Doctors having a profession dealing with human life should always resort to legal means to ventilate their feelings and should avoid jeopardising medical facilities provided to innocent persons by Government‑‑‑Tackling problem in a peaceful and congenial atmosphere by Authority‑‑‑Method emphasized.

Article 17 of the Constitution gives doctors (civil servants) a right to form Association in accordance with law. They have got inalienable right to be treated in accordance with law. The dignity of their persons and profession is protected by law. They were having certain demands apprehending their career to be at stake. The authority instead of adopting amicable/cordial methods put majority of doctors behind the bars and kept ahem there for about three weeks. This attitude of Authority is certainly violative of Article 14 of the Constitution, which upholds the dignity of man as his inviolable right. The stigma of incarceration for such a long period would certainly haunt their future career.

Doctors who are having a profession which deals with human life should always resort to legal means to ventilate their feelings and should avoid jeopardising medical facilities provided to innocent persons by Government. They should have avoided to create such an atmosphere, which leads to endangering the lives of innocent people in medical institutions. If they were demanding for betterment of their service structure, there was a method for the same and authorities were enjoined to tackle the problem in a peaceful and congenial atmosphere.

Sardar Shaukat Hayat, Additional Advocate‑General, N.‑W.F.P. for Petitioners.

Sardar Khan, Advocate Supreme Court with Fateh Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 18th July, 2002.

2003 S C M R 115

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C. J , Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

Mst. BUSHRA‑‑‑Appellant

Versus

MUHAMMAD NAEEM‑‑‑Respondent

Civil Miscellaneous Appeal No.25 in Constitutional Petition No. Nil of 2002, decided on 11th September, 2002.

(Appeal under Order V, Rule 3, Supreme Court Rules, 1980, against the order dated 10‑7‑2002 of the Registrar of this Court).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 186‑A‑‑‑Supreme Court Rules, 1980, O. V, R.3‑‑‑Transfer of family case from one Province to another Province‑‑‑Petition under Art.186‑A of the Constitution seeking transfer of family case pending in Family Court, in Sindh) to Family Court in Punjab‑‑‑Registrar of Supreme Court returnee: such petition being not maintainable‑‑‑Validity‑‑‑No provision in law existed presently to meet such situation‑‑‑Supreme Court under Art. 186‑A of the ­Constitution was vested with power to transfer a case pending before one High Court to another High Court, but not a case pending before any Court subordinate to High Court of a Province to a Court subordinate to High Court of another High Court‑‑‑Supreme Court dismissed appeal as having no merits, but recommended to Federal and Provincial Governments to amend relevant laws i.e. C.P.C. and law relating to family cases, for‑transfer of a case in such situation.

Ch. Muhammad Akram, Advocate‑on‑Record for Appellant.

Nemo for Respondent.

Date of hearing: 11th September, 2002.

2003 S C M R 116

[Supreme Court of Pakistan]

Present: Javed Iqbal Sardar Muhammad Raza Khan and Falak Sher, JJ

Messrs UNION BANK LIMITED‑‑‑Petitioner

Versus

Messrs SILVER OIL MILLS LIMITED and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1271 of 2002, decided on 18th September, 2002.

(On appeal from the order dated 24‑4‑2002 passed by Lahore High Court in R. F. A. No.19/2002).

(a) Judgment‑‑

‑ ‑‑‑Interim order cannot be equated with a judgment‑‑‑Necessary conditions for a judgment enumerated, following are the necessary conditions for a judgment:

(a) It should terminate proceedings in Court.

(b) It should determine the right and liabilities of the parties.

(c) The determination of the rights arid liabilities as envisaged in (b) above should be on merits and should further be final and conclusive so as to cover the entire range of substantive rights and liabilities which formed the subject‑matter of real controversy in the suit proceedings which initially gave rise to the dispute.

AIR 1963 And. Pra. 9; AIR 1961 All. 245; 1960 ALL WRHC 5; ILR 2 All. 917; AIR 1953 Sau. 166; AIR 1958 All. 800; AIR 1957 All. 116 and AIR 1951 Pat. 25 ref.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)‑‑‑-

‑‑‑‑S.22(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Admission of appeal for regular hearing‑‑‑Petition for leave to appeal ‑‑‑Maintainability‑‑­Interlocutory order‑‑..Appeal under S.22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, was not yet decided when the petitioner‑Bank tiled the petition‑‑‑Plea raised by the Bank was that execution of decree was stayed and appeal was admitted to regular hearing without giving any cogent reason‑‑‑Validity‑‑‑Appeal preferred on behalf of the borrower was pending adjudication and determination of the rights and liabilities were yet to be made and thus all the contentions as mentioned in the petition for leave to appeal could be agitated before the High Court where the matter was pending‑‑‑No verdict on the question of maintainability of appeal having been given by High Court, the petition for leave to appeal had been tiled ‑at premature stage‑‑‑Entertainment of petition for leave to appeal against interim order and hearing of case piecemeal was not desirable‑‑‑Although the contentions as agitated on behalf of the petitioner‑Bank were convincing and needed serious consideration yet at such stage Supreme Court was not to make any interference as the appeal of. the borrowers was still pending adjudication on the merits in High Court and question of maintainability whereof was yet to be decided‑‑‑Leave to appeal was refused.

Said Khan v. Aya Khan 1979 SCMR 577; Zafarullah Khan v. Abdul Rehman 1971 SCMR 702; Amir Khan v. Fateh Khan 1978 SCMR 334; Rafique Saigol v. Bank of Credit and Commerce PLD 1996 SC 749; Fine Textile Mills Ltd. v. Haji Umer PLD 1963 SC 163; Abdul Karim Jaffarani v. United Bank Ltd. PLD 1981 SC 106; Abdul Rauf Ghauri v. Mst. Kishwar Sultana 1995 SCMR 925; Karim v. Ziker Abdullah 1973 SCMR 100; Abdul Majeed v. UBL 1984 SCMR 1435 and Ark Industrial Management Ltd. v. Habib Bank Ltd. PLD 1991 SC 976 ref.

S. Iqbal Haider, Muhammad Afzal Siddiqi, Advocates Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and M. S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 10th September, 2002.

2003 S C M R 121

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MISKIN‑‑‑Appellant

Versus

ADDITIONAL DISTRICT JUDGE, MANSEHRA and 32 others‑‑‑Respondents

Civil Appeal No.518 of 1995, decided on 18th September, 2002.

(On appeal from the judgment dated 31‑1‑1994 of he Peshawar High Court, Abbottabad Bench, passed in Writ Petition No.55 of 1993).

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

‑‑‑‑O.VII, R.11‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider: whether the Courts below were not competent to reject the plaint without adverting to the mandate given to them under O.VII, R.11, C.P.C. inasmuch as the ingredients mentioned therein were not attracted to the case in hand.

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

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), S.92 & O. VII, R.11‑‑­ Plaint, rejection of‑‑‑Public charities‑‑‑Filing of suit under S.92, C.P.C.‑‑­ Pre‑conditions‑‑‑Dispute was with regard to management and administration of the shrine and land adjacent to the same‑‑‑Plaintiff claimed to be Mujawar and Muttawali (care taker) of the shrine and that the defendants had nothing to do with the administration‑‑‑Application under O.VII, R.11, C.P.C. was filed by the defendants on the ground that the suit was regarding public charities and the same was not filed after having permission as required under S.92, C.P.C.‑‑‑Trial Court dismissed the application but Appellate Court, in exercise of revisional jurisdiction, allowed the application and the plaint was rejected‑‑‑Constitutional petition against the order passed by the Appellate Court was dismissed by High Court‑‑‑Plea raised by the plaintiff in Supreme Court was that the suit filed by the plaintiff was in his personal capacity for his personal right and for a declaration and permanent injunction being 'Mutawali' and 'Mujawar' of the shrine‑‑‑Validity‑‑‑It was nowhere mentioned that there existed any trust for public purposes of a charitable or religious nature, or that there was any breach of trust or that the Court was moved for getting direction for its administration‑‑‑Pre‑conditions for filing the suit under S.92, C.P.C. are that it must be in a representative capacity on behalf of the public and not for the interest of any individual‑‑‑Where none of the pre‑conditions had been established, the suit was not barred by law‑‑­ Defendant failed to point out that the suit was hit by any clause of O.VII, R.11, C.P.C.‑‑‑Both the Courts having exceeded their jurisdiction, their findings were not warranted by law and the same were set aside‑‑‑Suit was restored by Supreme Court to its original position‑‑‑Appeal was allowed.

Muhammad Munir Paracha, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Nemo for Respondents Nos.2 to 26.

Imtiaz Ali, Additional Advocate‑General, N:‑W.F.P. for Respondents Nos.30 to 33.

Date of hearing: 18th September, 2002.

2003 S C M R 125

[Supreme Court of Pakistan]

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

Mst. BHAG BHARI through Legal Heirs and others‑ ‑‑Petitioners

Versus

GHULAM RASOOL and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.634 of 2002, decided on 11th September, 2002.

(On appeal from judgment dated 27‑2‑2002, passed by the Lahore High Court, Lahore, in Civil Revision No.823 of 1995).

Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Relationship of husband and daughter with deceased woman‑‑‑Proof‑‑‑Last male owner was survived by his mother and sister‑‑­Petitioners as collateral of last male owner claimed to be exclusive owner of suit land‑‑‑Respondents claimed to be entitled to 1/2 share in suit land being husband and daughter of the deceased sister of last male owner‑‑‑Trial Court declared petitioners to be entitled to l; 2 share in suit land, while remaining half would vest in respondents as husband and daughter of deceased sister of last male owner‑‑‑Appellate Court in appeal by petitioners accepted their claim to be exclusive owners of suit land‑‑‑High Court in revision set aside such findings of Appellate Court‑‑‑Contention of petitioners was that respondents had not proved their such relationship with deceased sister of last male owner, thus, her half share would revert back to petitioners as collateral of last male owner‑‑‑Validity‑‑‑Copy of judgment of Family Court placed on record showed that deceased sister of last male owner while appearing as defence‑witness in a suit for restitution of conjugal rights filed against her by another person had stated that she was married to respondent ­husband and that respondent‑daughter was born as a result of such wedlock, and that she was never married to plaintiff in that suit‑‑‑Such statement was supported by another witness, who stated that she had been living with respondent‑husband for the last 32 years‑‑‑Such other person while appearing as witness in a suit filed against him by deceased sister of last male owner claiming damages for defamation had stated on oath that respondent‑daughter was born as result of her wedlock with respondent‑husband‑‑‑Findings of Appellate Court were based on gross misreading of such overwhelming evidence and same were perverse, which had rightly been reversed by High Court in exercise of its jurisdiction under S.115, C.P.C.‑‑‑Impugned judgment was based on proper appreciation of evidence and material available on record, wherein no misreading or non‑reading of evidence or misconstruction of facts and law was found‑‑‑Supreme Court dismissed the petition for leave to appeal in circumstances‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Civil Procedure Code (V of 1908), S. 115.

Khawaja Muhammad Farooq, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th September, 2002.

2003 S C M R 129

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

TAJ MUHAMMAD and 7 others‑‑‑Appellants

Versus

XEN IRRIGATION, DARGAI and 3 others‑‑‑Respondents

Civil Appeal No. 1259 of 1996, decided on 26th September, 2002.

(On appeal from the judgment dated 8‑11‑1994 of the Peshawar High Court, Peshawar, passed in R.F.A. No.23 of 1989).

(a) Land Acquisition Act (I of 1894)‑‑‑-

‑‑‑‑S.18‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions of the petitioner that High Court had erroneously considered the acquisition by virtue of the exhibited documents and disputed property to be falling in two different places; secondly that the land acquired for the post office was adjacent to main bazar and therefore, the potential value of the land was higher than the awarded amount and; thirdly that the Referee Judge as well as the Division. Bench of High Court had failed to appreciate that the land in dispute had the potential to be developed into a commercial property which was surrounded by buildings and was adjacent to the main bazar.

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

‑‑‑‑S.18‑‑‑Qanun‑e‑Shahadate (10 of 1984), Art.72‑‑‑AcqtrMition of land‑‑­Compensation‑‑‑Determination‑‑‑Potential value of land, consideration of‑‑­Document neither produced nor exhibited‑‑‑Effect‑‑‑Grievance of appellant was that after acquiring his land and while determining compensation, the authorities did not take into consideration the potential value of the land‑‑­Referee Judge while deciding the compensation had taken into consideration the extracts from the register concerned and other documents placed on file and enhanced compensation from Rs.2,190.27 to Rs.4,000 per Marla‑‑­While enhancing the compensation, the Judge had taken into consideration the only transaction which took place during five years prior to the issuance of notice under S.4 of Land Acquisition Act, 1894, according to which 10 Marlas of land was sold at the price of Rs.40,000‑‑‑Land sold for post office was relied upon by the appellant and the Judge had taken into consideration the transaction relied upon and had found that the land was not within the vicinity of the land of the appellant‑‑‑Compensation fixed. by the Referee Judge was .maintained by High Court‑‑‑Validity‑‑‑Appellant had failed to tiring on record the sale‑deed pertaining at the relevant time to determine the market value of the land in question‑‑‑Land of the appellant and that relied upon by the appellant were situated in two different Mozas (villages) but Wand was same‑‑‑Sketch showing location of the land referred by the appellant was neither produced/exhibited in the evidence nor it‑ maker was examined, as such, the sketch had no value in the eye of law‑‑‑Supreme Court declined to enhance compensation awarded by the Referee Judge‑‑­Appeal was dismissed.

Abdul Samad Khan, Advocate‑on‑Record for Appellants.

Sardar Shoukat Hayat, Additional Advocate‑General, N.‑W.F.P. for Respondents.

Date of hearing: 26th September, 2002.

2003 S C M R 132

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

UNITED LINER AGENCIES OF PAKISTAN (PVT.) LTD., KARACHI and 4 others‑‑‑Petitioners

Versus

Miss MAHENAU AGHA and 8 others‑‑‑Respondents

Civil Petition No.86‑K of 2000, decided on 10th July, 2002.

(On appeal from the judgment dated 13‑12‑1999 in H.C.A. No. 17 of 1990 passed by the High Court of Sindh, Karachi).

(a) Companies Ordinance (XLVH of 1984)‑‑‑--

‑‑‑‑Ss.26, 27 & 28‑‑‑Articles of Association‑‑‑Object and scope‑‑‑Articles of Association of a company are terms of contract between the members and the terms are legally binding upon the members‑‑‑Such right is enforceable in law provided the terms are not forbidden by law.

Rayfield v. Hands and others (1958) 2 WLR 851 and In re: Hartley Baird Ltd. 1955 Ch. 143; (1954) 3 WLR 964 and (1954) 3 All ER 695 ref.

(b) Companies Ordinance (XLVH of 1984)‑‑‑-

‑‑‑‑S.2(28)‑‑‑Transfer of shares of private limited company ‑‑‑Principles‑‑­Transfer of shares in any manner otherwise than that provided in Articles of Association would be invalid and contrary to the terms of contract agreed upon by the members of the company/.shareholders.

Hichman v. Kent and Romney Marsh Sheepbreeders' Association (1915) 1 Ch. 881 ref.

(c) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss.2(28) & 89‑‑‑Transfer of shares of private limited company‑‑‑Inclusion Of pre‑emptive right for transfer and purchase of shares in Articles of association‑‑‑Validity‑‑‑Such restriction is legal and valid covenant in the Articles of Association.

Ontario Jockey Club Ltd. v. Samuel McBride AIR 1928 PC 291 and Introduction to Company Law by L.H. Leigh, V.H. Joffe and D. Goldberg, Second Edn., p.266 and Principles of Modern Comp any by Law by LCB Gower, Third Edn., pp.392‑393. ref.

(d) Companies Ordinance (XLVII of 1984)‑‑‑-

‑‑‑‑Ss.2(28) & 89‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Transfer of shares of private limited company ‑‑‑Pre‑emptive right of existing shareholders/directors of the company‑‑‑No objection by State Bank of Pakistan to sell the shares‑‑‑Defendant without offering his shares to the existing shareholders/directors of the company, sold the same to third party‑‑‑Plaintiffs assailed the sale of shares on the ground that they were willing to purchase the shares but no notice, as required by Articles of Association of the Company, had been given either to the Secretary of the company or to them‑‑‑High Court in exercise of original civil jurisdiction dismissed the suit but Division Bench of High Court allowed the appeal and suit was decreed in favour of the plaintiffs‑‑‑Plea raised by the defendant was that the shares were sold after having no objection from the State Bank of Pakistan‑‑‑Validity‑‑‑No reason existed to take different view with regard to the import and inferences drawn in respect of the Articles of the Company that existing members of the Company having shown their willingness to buy the shares had pre‑emptive right who were not even offered to buy the shares at the fair value to be fixed in accordance with the provisions of Articles of Association, and had first right of refusal to purchase the same‑‑‑Mere fact that no objection was given by the State Bank of Pakistan to the transfer and purchase of shares in favour of transferor would not validate the transaction of purchase in favour of the buyers in respect of shares which otherwise in terms of the Articles of Association was invalid‑‑‑Supreme Court declined to interfere with the judgment passed by Division Bench of High Court‑‑‑Leave to appeal was refused.

Lal Khan v. Ghulam Muhammad 1973 SCMR 252 and Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd. PLD 1965 SC 221 ref.

Kamal Azfar, Advocate Supreme Court and Ahmadullah Faruqi, Advocate‑on‑Record for Petitioners.

A. I. Chundrigar, Advocate Supreme Court and M.S. Ghaury. Advocate‑on‑Record for Respondents Nos.1 and 2.

Date of hearing: 10th July, 2002.

2003 S C M R 145

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

WAQAS AKRAM‑‑‑Petitioner

Versus

Dr. MUHAMMAD TAHIRUL QADRI and others‑‑‑Respondents

Civil Petition No. 1632 of 2002, decided on 1st October, 2002.

(On appeal from the judgment dated 26‑9‑2002 of the Lahore High Court, Lahore passed in Writ Petition No. 16731 of 2002).

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

‑‑‑‑S. 99(1)(b)‑‑‑Conduct of General Elections Order, (7 of 2002) Art.8‑D(b)‑‑‑Constitution of Pakistan (1973), Art.62(b)‑‑‑Elections for National Assembly‑‑‑Age of candidate‑‑‑Determination‑‑‑Cut of date for determining age of candidate‑‑‑Age mentioned in Matriculate certificate was different than the one mentioned in Birth Certificate and National Identity Card‑‑‑Matriculate Certificate showed that the candidate was less than 25 years of age at the time of filing of nomination papers but according to Birth Certificate and National Identity Card, the candidate had attained the required age on the last day for filing of nomination papers‑‑‑Returning Officer rejected the nomination papers of the candidate for the reason that on a he day when the candidate filed his nomination papers he was not of 25 years even on the basis of entries in the Birth Certificate and National Identity Card‑‑‑Order passed by the Returning Officer was maintained by Appellate Tribunal as well as High Court‑‑‑Contention of the contesting candidate/respondent was that the candidate had acted in a mala fide manner and remedy available to him against rejection of his nomination papers was by assailing the same through election petition‑‑‑Validity‑‑‑Throwing challenge to the date of birth given in Matriculation Certificate was not a rare phenomenon and if a candidate had adopted such a course of action, such candidate could not be labelled as dishonest and sidelined‑‑‑Candidate was well within his right to challenge the date of birth given in his Matriculation Certificate and could produce documents in support of his claim‑‑‑Proper approach in such a case was to take the matter to its logical conclusion by accepting one of the two sets of documents on the basis of the case‑law on the subject and not to disfranchise the candidate for supporting his claim with documents containing the date of birth inconsistent with that given in the School Certificate and making a declaration in the nature of affidavit that he was qualified to contest the election‑‑‑Finding that the candidate had acted in a mala fide manner in claiming his date of birth as mentioned in Birth. Certificate and for that reason was not entitled to seek any equitable relief in exercise of Constitutional jurisdiction, was unjustifiable‑‑‑Contention of the contesting candidate/respondent was not tenable for the reason that in that eventuality the candidate having been ousted from the contest would be debarred from seeking the relief that he be declared to have been duly elected‑‑‑Supreme Court set aside the judgment passed by the High Court and the candidate was allowed to participate in the election‑‑‑Petition for leave to appeal was converted into appeal and the same was allowed.

Fakhruddin G. Ebrahim and Shahzad Jehangir, Senior Advocates Supreme Court for Petitioner.

Ch. Musthaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent No. 1.

Aftab Gul, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No.5.

Date of hearing: 1st October, 2002.

2003 S C M R 150

[Supreme Court of Pakistan]

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

THE STATE through Prosecutor‑General Accountability, National Accountability Bureau, Islamabad‑‑‑Petitioner

Versus

MISBAHUDDIN FARID‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 99‑K of 2001, decided on 1st March, 2002.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 5‑10‑2001, passed in Criminal Accountability Appeal No. 13 of 2001).

(a) National Accountability Bureau Ordinance (XVIH of 1999)‑‑‑-

‑‑‑‑Ss. 9(a)(iv)(v)/10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Bank Account of accused accordingly to the record produced by prosecution itself never had balance of Rs.33,00,000 as alleged by it, but this was the entire transaction during nine years and lastly the balance of the accused was only Rs.42.11‑‑‑Explanation of accused about various deposits in his account had been established on record by evidence which was not shattered in cross‑examination, and the same had been rejected by Trial Court against the settled principles of law‑‑‑Car had been gifted to the wife of the accused by her brother which evidence was not considered by Trial Court‑‑‑High Court after having considered‑the case in its proper. perspective had rightly allowed the appeal of accused by means of a well‑reasoned' judgment based on law laid down by Supreme Court‑‑­Additionally no question of public importance was involved in the case‑‑­Leave to appeal was refused by Supreme Court to the State accordingly.

Khan Asfundyar Wali v. The Federation of Pakistan PLD 2001 SC 607 and Mir Ahmed v. The State, PLD 1962 SC 849 ref.

(b) Criminal trial‑‑‑

-----Defence plea ‑‑‑Benefit of doubt‑ ‑‑Reasonable possibility of the defence put forward by the accused being true, reacts upon the whole case in consequence whereof the accused is entitled to the benefit of doubt on the ground that the prosecution has not proved its case beyond reasonable doubt.

Khan Asfundyar Wali v. The Federation of Pakistan PLD 2001 SC 607 and Mir Ahmed v. The State PLD 1962 SC 849 ref.

Khursheed Hashmi, Dy. A.‑G. and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for the State.

Nemo for Respondent.

Date of hearing: 1st March, 2002.

2003 S C M R 153

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

Mst. JAMEELA KAUSAR‑‑‑Petitioner

Versus

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

Civil Petition No. 110 of 2002, decided on 9th October, 2002.

(On appeal from the judgment dated 1‑11‑2001 passed by Lahore High Court, Lahore in W.P. No. 230 of 1994).

Constitution of Pakistan (1973)‑‑--

‑‑‑‑Art. 185(3)‑‑‑Educational institution‑‑‑Unfair means in examination‑‑­Belated initiation of disciplinary proceedings‑‑‑Apparent fraud and forgery was committed by the petitioner/candidate in her F.Sc. Examination by changing pages inside her answer book‑‑‑Petitioner was disqualified by the Board Authorities‑‑‑Legality of the order passed by the Board was assailed in Constitutional petition and High Court passed interim order in favour of the petitioner‑‑‑Petitioner, on the basis of interim order managed to secure admission in medical college‑‑‑Division Bench of High Court was constituted for dealing with matters relating to admission for medical colleges throughout the Province for maintaining consistency of policy‑‑‑After perusal of record produced by the Board Authorities, the Division Bench of High Court dismissed the petition as the petitioner was not able to show any factual or legal infirmity in the order passed by the Board Authorities‑‑­Contention of the petitioner‑ was that disciplinary proceedings were initiated at a belated stage and she was in advanced stage of medical studies‑‑­Validity‑‑‑Supreme Court sent for the, original record and perusal whereof patently demonstrated that most of the answer books had been tampered with viz. the title/front/cover page having been pasted on the stapled sheets which were subsequently tucked in covering the staple beneath; further, despite the query no motive of malicious involvement by any of the officials or functionaries of the Board Authorities had been spelt out‑‑‑Supreme Court declined to interfere with the order passed by the Division Bench of High Court as the same was unexceptionable wherein no inroad could be made into the alleged belated recourse of the petitioner's stage of studies for the same would tantamount to not only to reaping premium of one's own wrong doing but would encourage perpetuation of fraud and illegalities which were patent on the face of the record‑‑‑Leave to appeal was refused.

Muhammad Ilyas Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik. Advocate‑on‑Record for Respondents.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 20th September, 2002.

2003 S C M R 157

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

MEMON EDUCATIONAL BOARD AND SOCIETY, KARACHI‑‑‑Petitioner

Versus

MUNAWAR HUSSAIN ‑‑‑Respondent

Civil Petitions Nos.699‑K to 702‑K of 2001, decided on 2nd July, 2002.

(On appeal from the judgment/order dated 4‑7‑2001 passed by High Court of Sindh, Karachi in Revision Applications Nos. 67 to 70 of 1999).

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

‑‑‑‑Ss. 2(2), 96 & O.VII, R.11‑‑‑Rejection of plaint‑‑Remedy‑‑‑Rejection of plaint tantamount to passing of a decree under S.2(2), C.P.C. and the same is challengeable in appeal under S.96, C.P.C.

Ghulam Muhammad v. United States Agency for International Development (U.S. Aid) Mission, Islamabad and another 1986 SCMR 907 ref.

(b) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S.7(v) & Sched.I, Art. 1‑‑‑Value of appeal‑‑‑Determination‑‑‑After having determined forum of appeal, to ascertain the value of court‑fee to be paid on the memo. of appeal, reference has to be made to S.7(v) read with Sched.I, Art.1 of Court Fees Act, 1870, which provides that the valuation would be the same, which was fixed before Trial Court in the valuation clause unless it is shown that value of appeal is different from value of suit.

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

‑‑‑‑Ss. 2(2), 96 & O.VII, R.11‑‑‑Court Fees Act (VII of 1870), S.7(v), Sched. I. Art.1 & Sched.II, Art.2(vii)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Rejection of plaint, appeal against‑‑‑Non‑fixing of court‑fee on memo. of appeal‑‑‑Failure to provide opportunity to affix court‑fee‑‑‑Plaint was rejected by the Trial Court being time‑barred‑‑‑Appeal was filed without affixing ad valorem court‑fee on the memo. of appeal‑‑‑Appellate Court and High Court dismissed the appeal and revision petition respectively as no court‑fee had been‑ paid on the memo. of appeal‑‑‑Validity‑‑=Rejection of plaint tantamounts to passing of a decree in terms of S.2(2), C.P.C.‑‑­Valuation of appeal in the present case was not different from the valuation of subject‑matter shown in the plaint, therefore, ad valorem court‑fee would be leviable on the memo. of appeal‑‑‑Where valuation of plaint had already been ascertained, provisions of Art.2(vii) of Sched. II of Court Fees Act, 1870, would not be applicable‑‑‑Plaintiff requested the Supreme Court to remand the case to the Appellate Court subject to payment of ad valorem court‑fee and defendant conceded to the request of the plaintiff‑‑‑Plaintiff in the present case had been non‑suited for technical reason i.e. non‑payment of ad valorem court‑fee, therefore, in the interest of justice and following the consistent view of Supreme Court that the parties' rights should be settled on merits instead of non‑suiting them for technical reason, Supreme Court remanded the case‑‑‑Petition for leave to appeal was converted into appeal and the same was disposed of accordingly.

Hafeezuddin v. K.M.C. and others PLD 1996 Kar. 499; Muhammad Anwar v. Messrs Associated Trading Co. Ltd. and another 1988 CLC 1462; Ram Prasad v. Tirloki Nath AIR 1938 All. 50; Kuntamukkala Venkateswara Rao v. Sree Raja Kunduru Lakshmikantharao Bahadur Zamindar Garu and others AIR 1941 Mad. 638; Mian Khan v. Aurangzeb and 12 others 1989 SCMR 58 ref.

Abdul Latif A. Shakoor Advocate Supreme Court for Petitioner.

Imran Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 2nd July, 2002.

2003 S C M R 162

[Supreme Court of Pakistan]

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

PAKISTAN FLOUR MILLS ASSOCIATION and another‑‑‑Petitioners

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Civil Petitions Nos.239‑K and 322‑K of 1999, decided on 16th July, 2002.

(On appeal from the judgment dated 8‑12‑1998 in C.P NO.D‑392/94 and C.P. No.D‑2161/96 passed by the High Court of Sindh, Karachi).

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

‑‑‑‑Art. 142(c) & Fourth Sched., Item Nos.49 & 54‑‑‑Federal and Provincial laws‑‑‑Matter not enumerated in any of the two Legislative Lists‑‑‑Levy of fees on agricultural produce‑-‑Jurisdiction of Provincial Assembly ‑‑‑Scope‑‑­Subject‑matter of imposition of fees on agricultural produce does not fall within any of the legislative lists i.e. Federal Legislative List and Concurrent Legislative List, therefore, in view of Art. 142(c) of the Constitution, Provincial Assembly could legislate/make the laws with respect to the matters not enumerated in either of the lists.

(b) Agricultural Produce Markets Act (V of 1939)‑‑‑

‑‑‑‑S. 19‑‑‑"Levy of fee" whether "levy of tax "‑‑‑Considering special services to be rendered by the Authorities and the fact that collection of fees being not appropriated by Government for general revenue purpose but for better regulation .of purchase and sale of agricultural produce and establishment of markets and for proper administration thereof within the province, imposition under S.19 of Agricultural Produce Markets Act, 1939, would be fees and not tax.

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402 ref.

(c) Agricultural Produce Markets Act (V of 1939)‑‑‑

‑‑‑‑S.19‑‑‑Agricultural Produce Markets Rules, 1940, R.29‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Levy of fee‑‑‑Failure to render services‑‑­ Assailing imposition of fee under S.19 of Agricultural Produce Markets Act, 1939, without providing such services‑‑‑Validity‑‑‑Petitioners did not approach the Court with clean hands by not making payment of fees which had already held by Supreme Court to be within the valid and lawful authority of the Province‑‑‑Petitioners could .not raise the plea that the Authorities were not rendering service under the provisions of Agricultural Produce Markets Act, 1939, or the Rules‑‑‑Plea that services were not being rendered by the Authorities could only be raised when the petitioners had performed their obligations with regard to payment of required fees‑‑‑Leave to appeal was refused.

Fauji Sugar Mills v. Market Committee 1988 SCMR 155; Muhammad Bhai Khudabux Chhipa and another v. The State of Gujarat and another AIR 1962 SC 1517; State of Orissa and another v. Messrs M.A. Tulloch & Co. and others AIR 1964 SC 1284; Noon Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Collector of‑ Customs and others v. Sheikh Spiriting Mills 1999 SCMR 1402; Rahimullah Khan and others v. Government of N.‑W.F.P. and others 1990 CLC 550; Abdul Majid and another v. Province of East Pakistan and others PLD 1960 Dacca 502; Peninsular and Oriental Steam Navigation Co. v. Pfizer Laboratories Ltd. Karachi and others 1980 CLC 1972; Gul Muhammad v. Allah Ditta PLD 1960 Lah. 443; Messrs Homes Limited, Karachi v. The Commissioner of Income‑Tax (Appeals); Zone‑V, Karachi and others 1985 SCMR 1801; Messrs Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary, Sindh and others 1993 SCMR 920; Bawany Sugar Mills Ltd. v. Market Committee, Badin and another PLD 1983 Kar. 1; PLD 1973 Lah. 1284; Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC, 145 and PLD 1975 Statutes Part, Vol. 6 ref.

(d) Agricultural Produce Markets Act (V of 1939)‑‑‑-

‑‑‑‑Ss. 19, 25‑A & 33‑A‑‑‑Levy of fee‑‑‑Demand by Administrator‑‑­Demand of market committee fee was assailed on the ground that after dissolution of market committee no such demand could be made‑‑‑High Court declared the demand as just and legal‑‑‑Validity‑‑‑On the date of demand of the fees, the market committee was in existence, however, on the late of dissolution of market committee when notification under S.25‑A read with 33‑A of Agricultural Produce Markets Act, 1939, was issued all property, funds and dues which were immediately before the date of dissolution vested in or realizable by market committee would vest in and realizable by Government or such Authority as specified in the notification‑‑­Collection and recovery of arrears of fees could be effected through the Government functionaries in view of S.33‑A(2) of Agricultural Produce Markets, Act, 1939.

Gulzar Ahmad, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioners (in C.P. No. 239‑K of 1999).

Muhammad Naseem, Advocate Supreme Court for Petitioner (in C. P. No. 322‑K of 1999).

Suleman Habibullah, Addl. A.‑G. for Government of Sindh.

S. Zaki Muhammad, Dy. A.‑G. for Government of Pakistan.

Ansari Abdul Lateef, Advocate Supreme Court for Market Committee Hala.

Ghiasuddin Mirza, Advocate‑on‑Record for Market Committee, Karachi.

Dates of hearing: 9th and 16th July, 2002.

2003 S C M R 176

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

SHUJAHAT HUSSAIN ‑‑‑ Petitioner

Versus

MUHAMMAD HABIB and another‑‑‑Respondents

Civil Petition No.45‑K& 2002, decided on 5th July, 2002.

(On appeal from the judgment/order dated 19‑10‑2001 passed by High Court of Sindh, Karachi in Revision Application No. 80 of 2000).

(a) Limitation Act (IX of 1908)‑‑‑-

‑‑‑‑S. 12(2) & (5) [as added by Limitation (Amendment) Act (XIII of 1991)]‑‑‑Exclusion of time requisite for obtaining attested copies of judgment‑‑‑Notice by Copyist Branch, non‑issuance of‑‑‑Application for obtaining certified copy of judgment dated 19‑10‑2001, was submitted on 22‑10‑2001, whereas the same was certified on 11‑12‑2001‑‑‑Office, of the Copyist Branch did not issue notice to petitioner for collecting the certified copy of the judgment for a particular date in terms of S.12(5) of Limitation Act, 1908‑‑‑Calculating time from the date of certification of the copy i.e. 11‑12‑2001, the petition submitted on 12‑1‑2002 was within time in circumstances.

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

‑‑‑‑S. 115(1), second proviso [as added by Code of Civil Procedure (Amendment) Act (VI of 1992)]‑‑‑Limitation Act (IX of 1908), S.12‑‑‑Sindh Chief Court Rules (O.S.), R.56‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision‑‑‑Limitation‑‑‑Excluding time requisite for obtaining certified copies‑‑‑Period of 90 days, calculation of‑‑‑Revision petition was filed in High Court by calculating period of 90 days after excluding the time spent for obtaining certified copies of judgment and decree and other documents‑‑‑High Court dismissed the revision being time‑barred for the reason that same was filed in violation of second proviso to S:115(1), C.P.C.‑‑‑Contentions of the petitioner were that unless certified copies of pleadings and orders of subordinate Courts were obtained, the same could not be appended with the petition, as such the time spent in obtaining their certified copies would be, excluded in computing the period of limitation under S.12 of Limitation Act, 1908; proceedings under S.‑115fC.P.C. were instituted in the form of revision application and such application was covered under S.12(1) of Limitation Act, 1908, for the purpose of computing the limitation period; period of limitation of 90 days had been provided by S.115(1), C.P.C. [as added by Code of Civil Procedure (Amendment) Act (VI of 1992)] but prior to it, as per R 56 of Sindh Chief Court Rules (O.S.) the period of 90 days was provided for filing of revision application exclusive of time required for obtaining certified copies, therefore, petitioner was entitled for benefit of exclusion of time spent in obtaining certified copies; and lastly that copies of documents which were required to be appended with the revision petition had to be obtained from other agency on which the petitioner had no control and on account of negligence on the part of such Authority for non‑supply of copies, the petitioner should not lose his valuable right to agitate the matter before High Court by invoking its revisional jurisdiction‑‑‑Validity‑‑‑Contentions ‑of the petitioner being of general public importance leave to appeal was granted by Supreme Court to consider the same.

Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546 and Tahir Ali and others v. Chief Judge, Karachi Small Causes Court, Karachi and another PLD 1960 Kar. 795 ref.

Abdul Rahim Qazi, Senior Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioner.

Nemo for Respondent:

Date of hearing: 5th July, 2002.

2003 S C M R 181

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwan Das and Abdul Hameed Dogar ; JJ

RIAZ HUSSAIN and others‑‑‑Appellants

Versus

MUHAMMAD AKBAR and others‑‑‑Respondents

Civil Appeal No. 880 of 1996, decided on 16th September, 2002.

(On appeal from the judgment dated 6-7‑1995 of the Lahore High Court, Lahore, passed in Civil Revision No. 474 of 1995).

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

‑‑‑‑S. 47‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the objection petition filed by respondents under S.47, C.P.C. was maintainable in the absence of execution application.

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

‑‑‑‑S. 47‑‑‑Objection petition‑‑‑Import, object and scope‑‑‑Objection petition filed by judgment‑debtor under S.47, C.P.C. has a very wide scope and the petition is akin to suit and for that very reason it contains an in‑built provision empowering the Court to treat the objection petition as a suit subject to certain conditions‑‑‑Object of Legislature is to provide an opportunity to judgment‑debtor to make an objection petition even if dcree­holder withholds the execution petition and gets the decree satisfied through some other mode‑‑‑Contrary view limits the scope of S.47, C.P.C. and thus militates against the object and intention of the Legislature‑‑‑Restriction to file objection petition under S.47; C.P.C. in absence of execution application would take the judgment‑debtor to a point where he is left with no remedy and forum for redressal of his grievance‑‑‑Objection petition under S.47, C.P.C. can be filed in the absence of execution petition.

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

‑‑‑‑S. 47 & O.XXI, Rr.10, 22, 23‑‑‑Objection petition without execution application‑‑‑Word "desires" as used in O.XXI, R.10, C.P.C.‑‑‑Scope and applicability ‑‑‑Declaratory decree was executed without filing of execution application by decree‑holder‑‑‑Judgment‑debtors filed objection petition under S.47, C.P.C. against such execution of the decree‑‑‑Executing Court and Appellate Court dismissed the petition of the judgment‑debtors but High Court in exercise of revisional jurisdiction allowed the petition ‑‑‑Decree ­holder contended that the objection petition under S.47, C.P.C. was only maintainable when execution application was filed and notice under O.XXI, R.22, C.P.C. was issued to the judgment‑debtor‑‑‑Validity‑‑‑Due to non­ filing of execution petition by decree‑holder, the judgment‑debtor was left high and dry‑‑‑Right to file objection petition conferred on judgment‑debtor by the Civil Procedure Code, 1908, was a vested right which could not be denied by blowing the expression 'desires' used in O.XXI, R.10, C.P.C. out of proposition or raising hypertechnical ground that non‑filing of execution petition was a bar to maintainability of objection petition ‑‑‑Pendency of application for execution of decree was not a condition precedent for filing of an objection petition under S. 47, C.P.C.‑‑‑Supreme Court declined to interfere with the order passed by High Court‑‑‑Appeal was dismissed.

Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lah.207; M.P. Shreevastava v. Veena AIR 1967 SC 1193 and National Bank of Pakistan v. Ch. Auto Tools Agency PLD 2001 Lah.135 ref.

(d) Interpretation of statutes‑‑

‑‑‑‑ Statutes should be interpreted in a manner which suppresses the mischief and advances the remedy.

Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 ref.

(e) Administration of justice‑‑

‑‑‑‑ Mere technicalities, unless offering any insumountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.

Taqi Ahmad Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants.

Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 16th September, 2002.

2003 S C M R 186

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

ADDITIONAL COLLECTOR‑II (WEST), COLLECTORATE OF SALES TAX

AND CENTRAL EXCISE, KARACHI‑‑‑Petitioner

Versus

Messrs PROCTER AND GAMBLE PAKISTAN‑‑‑Respondent

Civil Petition No. 895‑K of 2001, decided on 3rd July, 2002.

(On appeal from the judgment/order dated 12‑9‑2001 passed by High Court of Sindh, Karachi in Sales Tax Appeal No. 141 of 2001).

Limitation Act (IX of 1908)‑‑‑-

‑‑‑‑Ss. 4 & 5‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Condonation of delay ‑‑‑Expiry of period of limitation on the day when Court was closed‑‑­Recalling of delay condoning order‑‑‑Appeal was filed before Division Bench of High Court with a delay of one day as on the last day the Court was closed‑‑‑High Court disposed of the application for condonation of delay subject to all exception‑‑‑High Court, at the time of final hearing dismissed the appeal being time‑barred‑‑‑Leave to appeal was granted by Supreme Court to consider, whether Division Bench of High Court non‑suited the petitioner contrary to its own earlier order whereby delay in filing of appeal was condoned subject to all just exceptions; whether petitioner's appeal was within time according to the provisions of S.4 of Limitation Act, 1908; and whether the judgment passed by Division Bench of High Court was contrary to observation made by Supreme Court in case titled Ikramullah and others v. Syed Jamal, reported as 1980 SCMR 374, wherein it had been observed that a plaintiff or an appellant should not be prejudiced by the act of the Court namely its closure on the day when the limitation expired.

Ikramullah and others v. Syed Jamal 1980 SCMR 374 ref.

Abdul Saeed Khan Ghori, Advocate‑on‑Record for Petitioner.

Nemo. for Respondent.

Date of hearing: 3rd July, 2002.

2003 S C M R 189

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD NASRULLAH ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 144 of 2001, decided on 9th September, 2002.

(On appeal from the judgment dated 9‑1‑2001 passed by the Lahore High Court, Multan Bench in Cr.A. No.64 of 1998 and M.R.67 of 1998).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the question of sentence alone as to whether in the circumstances narrated by the accused in his statement under S.342, Cr.P.C. as well as suggested to the eye‑witnesses, would it become a case of imprisonment for life.

(b) Penal Code (XLV of 1860)‑‑-

‑‑‑‑S. 302‑‑‑Sentence, quantum of‑‑‑Death sentence is ordinarily to be imposed in murder cases unless the Trial Court for the reasons to be recorded by it considers it proper to award lesser penalty.

(c) Penal Code (XLV of 1860)‑‑-

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Grave and sudden provocation‑‑‑Accused cannot be allowed to make the fake plea of grave and sudden provocation as an excuse for killing the victim for seeking lesser sentence‑‑‑Benefit of 'grave and sudden provocation can be given to the accused only if he, by its gravity and suddenness, was deprived of the power of self‑control.

(d) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S. 302‑‑‑Sentence‑‑‑No details of the abuses given or of the filthy language used by the deceased had been given by the accused and such plea could not be taken as a mitigating circumstance in his favour which was an afterthought and a figment of imagination‑‑‑Accused had not taken the said plea during investigation and it was not even established on record by any satisfactory or reliable evidence‑‑‑Accused, thus, was not entitled to lesser sentence and his death sentence was maintained accordingly.

Abdul Haq v. The State PLD 1996 SC 1; Tufail Masih v. State 1985 SCMR 838 and Sodagar v: The State 1972 SCMR 161 ref.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 9th September, 2002.

2003 S C M R 195

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

Moulana ABDULLAH‑‑‑Petitioner

versus

RETURNING OFFICER and others‑‑‑Respondents

Civil Petition No. 1,625 of 2002, decided on 30th September, 2002.

(On appeal from the Judgment dated 21‑9‑2002 of the High Court of Sindh, Karachi passed in Civil Petitions Nos. D‑1620 and 1643 of 2002).

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

‑‑‑‑S.99(1)(cc)‑‑‑Conduct of General Elections Order (7. of 2002), Art.8‑A‑‑­Notification No.F.2(11)/2002‑Cord., dated 25‑7‑2002‑‑‑Notification No.F.2(11)/2002‑Cord., dated 29‑7‑2002‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Academic qualifications of candidates‑‑‑Religious institution not recognized by University Grants Commission‑‑‑Petitioner was a candidate for National Assembly holding Sanad of Shahadatul Aimiya Fil Uloom ul Arabia Wal Islamia issued by Al‑Jamia‑ul‑Deenat Darul Huda Therhi‑‑‑Nomination papers filed by the petitioner were rejected by Returning Officer and appeal against the same was dismissed by Election Tribunal‑‑High Court in exercise of its Constitutional jurisdiction declined to interfere with the orders passed by the Authorities‑‑‑Petitioner contended that Al‑Jamia‑ul‑Deenat Darul Huda Therhi was affiliated with Wafaq‑ul­Madaris Al‑Arabia Pakistan, therefore, Sanad produced by the petitioner was at par with those issued by Wafaq‑ul‑Madaris Al‑Arabia Pakistan‑‑­Validity‑‑‑University Grants Commission had accorded the requisite recognition .and equivalence to Sanads only which had been issued by the institutions mentioned in the Notification No.F.2(11)/2002‑Cord., dated 25‑7‑2002 and Notification No.F.2(11)/2002‑Cord., dated 29‑7.2002‑‑­Status and contents of the two Notifications were not challenged by the petitioner‑‑‑Name of the institution which had awarded Sanad to the petitioner did not figure in the said Notifications‑‑‑Expression 'affiliated institutions' did not find mention either in the Notifications or any other document on record‑‑‑University Grants Commission had restricted the grant of requisite status and recognition to Asnad awarded by the institutions mentioned in the undisputed notification and had not extended the same to the institutions affiliated therewith ‑‑‑Sanad pressed into service by the petitioner was not given requisite recognition by the University Grants Commission‑‑‑Leave to appeal was refused in circumstances.

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th September, 2002.

2003 S C M R 201

[Supreme Court of Pakistan]

Present: Iffikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

ALI GUL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.272 of 2002, decided on 11th October, 2002.

(On appeal from the judgment/order dated 2‑7‑2002 passed by High Court of Sindh, Circuit Bench Sukkur Bench in Cr.B.A. No.218 of 2002).

Criminal Procedure Code (V of 1898)‑-

‑‑ ‑‑S. 497‑‑‑Penal ‑‑Code (XLV of 1860), Ss.324/449/452/427/109/34‑‑‑ Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1.979), S.17(3)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑­Anti‑Terrorism Act (XXVII of 1997), S.7(iii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑‑F.I.R. was lodged with a delay of 24 hours without offering ,convincing explanation‑‑‑Both the alleged abductees had come back to their home on 13‑5‑2001 but they remained silent till 6‑11‑2001 when their statements under S‑161, Cr.P.C. before the police or under S.164, Cr.P.C. before the Magistrate were recorded‑‑‑Prosecution had not produced any medical evidence on record in respect of the injuries allegedly sustained by some persons of the complainant party‑‑‑Petition for leave to appeal was converted into appeal and allowed in circumstances and the accused was released on bail on benefit of doubt accordingly.

Amir v. The State PLD 1972 SC 277 ref.

Raja Abdul Ghafoor, Advocate Supreme Court for Petitioner.

Muhammad Rafique Chaudhry, Additional Advocate‑General, Sindh for the State.

Date of hearing: 11th October, 2002.

2003 S C M R 204

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

INTISAR HUSSAIN ‑‑Petitioner

versus, AKHTAR HUSSAIN and 4 others‑‑‑Respondents

Civil Petition No. 1623 of 2002, decided on 30th September, 2002.

(On appeal from the judgment dated 14‑9‑2002 of the Lahore High court, Lahore, passed in Writ Petition No. 16652 of 2002).

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

‑‑S.99(1)(cc)‑‑‑Conduct of General Elections Order [Chief Executive's Irder No.7 of 2002], Art.8‑A‑‑‑Constitution of Pakistan (1973). °zrt.185(3)‑‑‑Academic qualification‑‑‑Verification of degree‑‑‑Nomination Japers of the petitioner were rejected by the Authorities on the ground that lie Graduation degree relied upon by the petitioner was found to be bogus‑‑‑

High Court also maintained the findings of the Authorities below‑‑‑Report submitted by the University in response to the letter sent by the Returning Officer for verification of the petitioner's degree was looked into by Supreme Court and it was found that the degree was bogus and a case of unfair means of impersonation had also been registered against him‑‑‑Contention of the petitioner was that the act of impersonation was done with the intention to deprive the petitioner from contesting the election‑‑‑Validity‑‑‑Contention of the petitioner had further confirmed that the petitioner was not a previous Graduate but attempted to get a degree by unfair means in order to contest election‑‑‑No exception to the concurrent findings of fact by two Courts on the degree being bogus having been found, leave to appeal was refused.

Ishan‑ul‑Haq Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 30th September, 2002.

2003 S C M R 207

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mina, JJ

INSPECTOR‑GENERAL OF POLICE, POLICE HEADQUARTERS

OFFICE, KARACHI and 2 others‑‑‑Petitioners

versus

SHAFQAT MEHMOOD‑‑‑Respondent

Civil Petition for Leave to Appeal No.352‑K of 2002, decided on 27th June, 2002.

(On appeal from judgment dated 31-1‑2002 passed by the Sindh Service Tribunal, Karachi, in Appeal No.284 of 1999)

(a) Civil service‑‑

‑‑‑Natural Justice, principles of‑‑‑.Applicability‑‑‑Opportunity of defence to civil servant‑‑‑Scope‑‑‑Proper inquiry is to be conducted wherein Government servant is to be provided an opportunity of defence and personal hearing and if charges in regular inquiry are proved then action against the public servant is to be taken

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 212(3)‑‑‑Dismissal from service‑‑‑Fact‑finding Inquiry Committee, recommendations of‑‑‑Failure to associate civil servant with inquiry conducted against . him‑‑‑Civil servant was charged with a criminal case in which he was exonerated by‑the complainant and was acquitted‑‑‑Department constituted Fact‑Finding Committee which investigated the matter‑‑‑Civil servant was not allowed to take part in the investigation and on the basis of the report submitted by the Committee, the civil servant was dismissed from service‑‑‑Service Tribunal allowed the appeal filed by the civil servant and reinstated him on the ground that after his acquittal, there was no material available with the authorities to take action and impose major penalty‑‑­Validity‑‑‑Judgment passed by Service Tribunal was based on valid and sound reasons and was in consonance with the law laid down by Supreme Court‑‑‑Neither there was misreading, nor non‑reading of material evidence or misconstruction of facts and law‑‑‑Authorities failed to raise any question of general public importance as contemplated under Art.212(3) of the Constitution‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal ‑‑Leave to appeal was refused.

Rashid Mehmood v. Additional Inspector‑General of Police and 2 others 2002 SCMR 57 ref.

Suleman Habibullah, Additional Advocate‑General Sindh with Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 27th June, 2002.

2003 S C M R 210

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Karamat Nazir Bhandari, JJ

MUHAMMAD JALAT KHAN‑‑‑Appellant

versus

LAND ACQUISITION COLLECTOR, TARBELA DAM RESETTLEMENT ORGANIZATION, WAPDA, GHAZI (HAZARA) and 3 others‑‑‑Respondents

Civil Appeal No.913 of 1996, decided on 16th September, 2002.

(On appeal from judgment dated 17‑1‑1996 passed by the P6shawar High Court, Peshawar, in C.M.A.No.383 of 1983).

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 18 & 30‑‑‑Civil Procedure. Code (V of 1908), S.12(2)‑‑‑Setting aside of award on the basis of fraud and misrepresentation‑‑‑Enhancement of compensation‑‑- Two objection petitions‑‑‑Objection petition was filed by petitioners for enhancement of compensation of the land acquired‑‑‑Petition was dismissed by Referee Court and appeal against the order was pending when the petitioners managed to get the compensation enhanced by filing second objection petition‑‑‑Second petition was filed by concealing the facts regarding the earlier petition‑‑‑Authorities filed application under S.12(2), C.P.C. wherein plea of fraud and misrepresentation was pleaded‑‑‑High Court allowed the application and set aside the order of enhancement of compensation on the ground that the enhancement for the same land was achieved by concealing the fact regarding dismissal of earlier petition‑‑‑Plea raised by the petitioners was that there was no element of fraud committed by them‑‑‑Validity‑‑‑High Court had rightly held that concealing of fact was fraud and by itself was sufficient for setting aside the judgments on the ground of fraud‑‑‑Judgment passed by High Court was based on proper appreciation of available material and the same was not open to exception‑‑­Neither there was any misreading nor any non‑reading of material evidence‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Appeal was dismissed.

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

Sh. Zamir Hussain, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Respondents Nos. l and 3.

Respondents Nos.2 and 4: Ex parte

Date of hearing: 16th September, 2002.

2003 SCMR 215

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ZAHID RASHID ‑‑‑Appellant

versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division.

Government of Pakistan, Islamabad and another‑‑‑Respondents

Civil Appeal No.54 of 2002, decided on 24th September, 2002.

(On appeal from the judgment dated 13‑2‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.382(R)C.S/2000).

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

‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider he contention that in the circumstances of the case the maintenance of the order of penalty on the Civil Servant was justified in law or not.

(b) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 2(4) & 3‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Reduction to lower post for one year in basic pay scale‑‑‑Misconduct, allegation of‑‑­Acquittal from criminal charge‑‑‑Civil servant was charged with the offence of abduction and kidnapping on the basis of a press report‑‑‑During criminal trial, the prosecution failed to produce any evidence against the civil servant, resultantly, he was acquitted of the charge‑‑‑Departmental proceedings were also initiated against the civil servant‑‑‑Authorized officer did not find the civil servant guilty of the charges but recommended penalty of reduction to lower post in Basic Pay Scale‑17 for a period of two years without any material and justification‑‑‑Service Tribunal reduced the penalty to reduction to lower grade for one year‑‑‑Service Tribunal did not record any express findings against the civil servant justifying the penalty‑‑‑Reporter, publisher or editor of the newspaper were neither examined in the inquiry proceedings nor in the criminal case‑‑‑Effect‑‑‑Charges of abduction, kidnapping etc. ultimately culminated in honourable acquittal of the civil servant by competent Court of law in the criminal case‑‑‑Non‑examining of reporter, publisher or editor of the newspaper led to believe that the entire proceedings were initiated falsely with certain motive against the civil servant‑ ‑‑Judgment passed by Service Tribunal was set aside and the civil servant was reinstated in original grade in Basic Pay Scale‑18 with all back benefits.

Abid Hassan Minto, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Hafiz S.A. Rehman, Dy. A.‑G instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 24th September, 2002.

2003 SCMR 219

[Supreme Court of Pakistan]

Present: Javed labal, Sardar Muhammad Raza Khan and Falak Sher, JJ

REHMAT ALI ‑‑‑Petitioner

versus

MUHAMMAD NAWAZ and others‑‑‑Respondents

Criminal Appeal No‑61 of 1997, decided on 9th October, 2002.

(On appeal frog‑ the judgment dated 25‑11‑1996 passed by Lahore High Court, Lahore in Criminal Appeal No.522 of 1993 and Murder Reference No.203 of 1993).

(a) Penal Code (XLV of 1$60)‑‑‑

‑‑‑‑S. 322‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to the complainant by Supreme Court for re‑appraisement of the evidence on record. [p. 220] A

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 322 & 302(b)‑‑‑Appeal against acquittal on capital charge‑‑‑Appraisal of evidence‑‑‑High Court while juxtaposing the prosecution and the defence versions had erred in excluding the medical evidence from consideration which had completely shattered the foundation of the defence plea of accidental firing ‑‑‑F.I.R. was promptly lodged‑‑‑Complainant's testimony had remained unimpeached despite searching cross‑examination which was fully corroborated by his brother‑‑‑Ocular evidence could not be brushed aside merely on account of the relationship of the eye‑witnesses with the deceased specially when they were equilaterally related to the accused as well‑‑‑Presence of eye‑witnesses at the venue of occurrence was perfectly natural who had no motive to maliciously involve the accused in the murder of their daughter leaving the real culprit to go scot free‑‑‑Medical evidence as to locale and range of firing had proved the prosecution case against the accused beyond the realm of doubt of a brutal murder of a young woman visibly carrying an advanced pregnancy‑‑‑Impugned judgment was consequently set aside and the accused was convicted under S. 302(b), P.P.C. and sentenced to imprisonment for life with fine‑‑‑Appeal was accepted accordingly.

Ghulam Sikandar and another v. Mamaraz Khan and another PLD 1985 SC 11 ref.

Muhammad Nawaz Bhatti, Advocate Supreme Court for Petitioner.

Zaman Bhatti, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate‑on‑Record for the State.

Munir Paracha, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 1st October, 2002.

2003 S C M R 225

[Supreme Court of Pakistan]

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

COMMANDING OFFICER, FRONTIER WORKS ORGANIZATION, KARACHI‑‑‑Petitioner

versus

Haji ABDUL WAHEED and 2 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.522‑K of 2002, decided on 25th July, 2002.

(On appeal from judgment dated 12‑3‑2002, passed by the High Court of Balochistan, Quetta, in Civil Petition No.577 of 2001).

Balochistan Minor Minerals Concession Rules, 2000‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Efficacious and adequate remedy, non­availability of‑‑‑Dispute between the parties was regarding payment of royalty on extracting sand, Bajri and stone crush from river‑‑‑Respondent was contractor under the provisions of Balochistan Minor Minerals Concession Rules, 2000 for collection of royalty for the material‑‑‑Petitioner was engaged in construction of Makran Coastal Road which was a project of national importance‑‑‑Initially the petitioner paid the royalty for extracting the material but later on refused to pay the same on the ground that such project was exempted from payment of royalty‑‑‑Respondent assailed the act of non‑payment of royalty in civil suit but the suit was withdrawn and Constitutional petition was filed in that regard‑‑‑High Court in exercise of Constitutional jurisdiction allowed the petition on the ground that no Department was exempted froth payment of such tax‑‑‑Plea raised by the petitioner was that Constitutional petition was not maintainable as the matter required recording of evidence‑‑‑Validity‑‑‑Matter before High Court was to decide whether the petitioner was liable to pay the tax royalty or not‑‑‑ Neither there was any need of recording of evidence, nor there was dispute to resolve factual controversy‑‑‑High Court had rightly considered the case from every angle and decided the same in accordance with law‑‑‑Judgment passed by High Court was not open to exception as it was well reasoned and based on the law and there was no material irregularity or illegality‑‑Leave to appeal was refused.

Abdul Kadir Siddiqui and Latifur Rehman Sarwari, Advocate,: Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th July, 2002.

2003 S C M R 228

[Supreme Court of Pakistan]

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

Syed NIAZ HUSSAIN SHAH BUKHARI, TECHNICIAN (PROCESS)‑‑‑Petitioner

versus

OIL AND GAS DEVELOPMENT CORPORATION LIMITED through Chairman, OGDC Head Office, Islamabad‑‑‑Respondent

Civil Petition For. Leave to Appeal No‑51 of 2002, decided on 11th September, 2002.

(On appeal from judgment dated 2‑11‑2001 passed by the Federal service Tribunal, Islamabad, in Appeal No. 1076(R)CE of 2000)

(a) Civil service‑

-‑‑Pay, entitlement to‑‑‑When there is no work, there is in no pay.

(b) Civil service‑

‑‑‑ Salary, refund of‑‑‑Civil servant after obtaining stay order against his transfer was allowed to continue his duties at. original place, where he was paid salary for about three years. ‑‑‑Authority deducted from salary of civil servant the amount paid to him as salary for the period when he remained absent from duty‑‑‑Service Tribunal dismissed appeal of civil servant‑‑ Validity‑‑‑Civil servant had not performed his duties either at original place or at transferred place, thus, was not entitled to salary‑‑‑Period for which refund of salary was effected from civil servant was the period for which, he had not worked‑‑‑When there was no work, there was no pay‑‑‑Recovery had rightly been effected from civil servant‑‑‑Impugned judgment was not open to exception as there was no jurisdictional error or misconstruction of facts and law‑‑‑No substantial question of law of public importance as envisaged under Art. 212(3) of the Constitution was made out‑‑‑Supreme Court dismissed petition for leave to appeal in circumstances‑‑‑Constitution of Pakistan (1973), Art. 212(3).

Sadiq Muhammad Warraich, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioner.

Sardar Muhammad Aslam, Dy. A.G. and M.S. Khattak, Advocate­ai‑Record for Respondent.

Date of hearing: l1th September, 2002.

2003 S C M R 231

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MUHAMMAD YASEEN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 109 of 2002, decided on 19th September, 2002.

(On appeal from the judgment dated 31‑5‑2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.207 of 1996 and Murder Reference No. 134 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 324/34 & 337‑F (ii)/34‑‑‑Appraisal of evidence‑‑‑Eye‑witness account furnished by the injured complainant was fully corroborated in all material particulars by the testimony of the Investigating Officer and medical evidence‑‑‑Rifle recovered from the accused had matched with the crime empty as per report of the Fire‑arm Expert‑‑‑Defence version put forth by the accused in his statement under S.342, Cr.P.C. regarding his false implication in the case was of no significance when considered in juxtaposition to the prosecution case which was highly truthful, trustworthy and believable‑‑‑Plea of right of self‑defence of property taken by the accused at such belated stage could not be considered as the same was not raised either before the Trial Court or the Appellate Court, rather it amounted to the admission of involvement of the accused in the commission of the crime‑‑‑No mitigating circumstance was available to reduce the sentence of accused‑‑‑Appeal of accused was dismissed in circumstances.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302/34, 324/34 & 337‑F (ii)/34‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Appeal to Supreme Court‑‑‑Appreciation of evidence ‑‑‑Principle‑‑­To believe or disbelieve a particular piece of evidence is primarily the function of the Trial Court and the Appellate Court‑‑‑Supreme Court usually does not interfere with the discretion exercised by the Courts below.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant. Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 19th September, 2002.

2003 S C M R 238

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

Messrs BIN BAK INDUSTRIES (PVT.) LTD. and another‑‑‑Petitioners

Versus

FRIENDS ASSOCIATES (REGD.) said others‑‑‑Respondents

Civil Petitions Nos.2663‑L and 2664‑L of 2002, decided on 14th October, 2002.

(On appeal from the judgment/order dated 6‑6‑2002 of the Lahore High Court, Lahore, passed in F. A. Os Nos. 112 and 117 of 2002).

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Necessary ingredients‑‑‑Contents of undisputed agreement to sell prima facie pointed to generation of funds through various modes including development and sale of plots to be undertaken by the plaintiffs and pleadings of the parties spelt out a dispute over delivery of possession of area measuring 9 acres covered by Rest House and Officers Colony etc.‑‑‑Effect‑‑‑Plaintiffs had a fair prima facie case‑‑‑Balance of convenience also tilted in favour of the plaintiffs because material on record indicated that the plaintiffs had not only cleared the outstanding loans and paid a huge amount of Rs.32 crores but were also engaged in development and sale of plots‑‑‑Plaintiffs would suffer an irreparable loss if temporary injunction was declined‑‑‑High Court had rightly granted the interim injunction to the plaintiffs.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Interim injunction, grant of‑‑­Specific performance of agreement to sell‑‑‑Deposit of balance of sale consideration‑‑‑Plaintiffs agreed to clear the loan obtained by the defendants and the property was to be handed over by the defendants to the plaintiffs for generation of funds through various modes including development and sale of plots‑‑‑Plaintiffs had cleared the loan by making payment of huge amount of Rs.32 crores and development of the land was being carried out but possession of area measuring 9 acres was not handed over to the plaintiffs‑‑­Trial Court granted interim injunction in favour of the plaintiffs subject to deposit of balance sale consideration but High Court modified the same and the condition imposed by the Trial Court was waived of‑‑‑Validity‑‑‑In a suit for specific performance of contract an order of restraint in respect of specific performance of contract and an order of restraint in respect of the suit property was normally granted subject to the deposit of the balance of sale consideration but the rule was not absolute and mandatory‑‑‑Exercise of such discretion was dependent upon nature of the agreement to sell and facts and circumstances of the case‑‑‑Suit filed by the plaintiffs, in the present case, was based on an extraordinary and rare agreement to sell, the bona fides of the plaintiffs appeared to be above board and the defendants' rights and financial interest were adequately protected in view of the fetters imposed in the agreement to sell on the sale of developed plots by the plaintiffs‑‑‑Application of the rule of deposit of balance sale consideration and exercise of discretion against the plaintiffs was iniquitous‑‑­Supreme Court declined to interfere with the interim injunction granted by High Court in favour of the plaintiffs‑‑‑Leave to appeal was refused.

Manzoor Ahmed v. Hamid Shah Gilani 1997 SCMR 1443; Balquees Zaman Khan v. Tahir Mehmood Butt 1991 CLC 1507 and Fateh Muhammad v. Muhammad Hanif PLD 1990 Lah. 82 distinguished.

S.M. Zafar, Senior Advocate Supreme Court, Salim Baig, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 14th October, 2002.

2003 S C M R 243

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

Chaudhary MUHAMMAD RAMZAN and 4 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Petitions for Leave to Appeal Nos.63‑Q, 64‑Q, 274, 288 and 289 of 2001, decided on 14th October, 2002.

(On appeal from judgment dated 10‑10‑2001 and 31‑10‑2001, passed by the High Court of Balochistan, Quetta, in Criminal Ehtesab Appeals Nos. 18, 19, 25 and 27 of 2001, respectively).

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

‑‑‑‑S. 10‑A‑‑‑Constitution,of Pakistan (1973), Art.185(3)‑‑‑Land acquired was not suitable for the construction of Labour Colony as provided under the Scheme, but accused with ulterior motive selected the site and made the payment resulting in great loss to the public exchequer‑‑‑Accused ,persons had not performed their duties according to law and to a certain extent they had facilitated the beneficiary to get enhanced compensation of land‑‑­Accused had not taken into consideration the required provisions of law for acquisition of land or selecting the same for construction of the Labour Colony and they had misused their official position‑‑‑Accused being a Provincial Minister had used pressure through the Chief Minister for immediate release of the funds‑‑‑Trustworthy and reliable prosecution evidence stood unrebutted during the trial proving the guilt of accused beyond doubt‑‑‑Impugned judgments of High Court were based on proper appreciation of the principles of law laid down by Supreme Court for safe administration of criminal justice which were not open to any exception‑‑‑ Leave to appeal was declined in circumstances.

Dr. A. Basit, Advocate Supreme Court for Petitioners (in C.Ps. Nos.63‑Q, 274 and 289 of 2001).

Ch. Naseer Ahmad, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners (in C‑Ps. Nos. 64‑Q and 288 of 2001).

M.S. Rakhshani, Deputy Prosecutor‑General, National Accountability Bureau and M.S. Khattak, Advocate‑on‑Record for the State.

Date of hearing: 14th October, 2002.

2003 S C M R 246

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rang Bhagwandas, JJ

ABDUL SALAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.25‑P of 2002, decided on 11th October, 2002.

(On appeal from the judgment/order dated 29‑3‑2002 passed by Peshawar High Court, Peshawar in Criminal Miscellaneous No.270 of 2001).

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

‑‑‑‑Ss. 32 & 74‑‑‑Release of the vehicle on "Superdari"‑‑‑Vehicle involved in the transportation of the narcotics, according to S.74 of the Control of Narcotic Substances Act, 1997, would not be released during the trial, however absolute bar cannot be created for the release of the vehicle if as per S. 32 of the said Act it is, prima facie, established that the owner had no knowledge of the narcotics having been transported in it‑‑‑Trial Court essentially can form such opinion after taking into consideration the facts of the case‑‑‑Judicial discretion can also be exercised for release of the vehicle temporarily on "Superdagi" in view of the principle that if a Court can grant final relief it also possesses inherent jurisdiction to grant temporary relief pending proceedings before it subject to, prima facie, fulfilling the conditions by the applicant under the law for getting relief finally from the Court.

Haji Abdul. Razzak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

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

‑‑‑S. 516‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.32, 74 & 9(c)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Custody of vehicle on "Superdari"‑‑‑No material was available on record to show that the petitioner had no knowledge about the narcotics being transported in his vehicle‑‑­Challan had already been submitted against the accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, and no prejudice had been caused to the petitioner who was owner of the vehicle‑‑‑Even if there was an irregularity in not registering the case by a competent officer, even then such irregularity which had not caused any prejudice or injustice, was curable under S. 537, Cr.P.C.‑‑‑High Court had rightly declined to release the vehicle to the petitioner‑‑‑Leave to appeal was refused accordingly.

Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5; M. Abdul Latif v. G. M. Paracha 1981 SCMR 1101; Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945; State v. Bashir PLD 1997 SC 408; Sadan v. State PLD 1965 B.J 12; Muhammad Aslam v Martial Law Administrator, Zone. 'C' 1980 PCr.LJ 97; 1980 PCr.LJ 97 and Public Prosecutor v. Ratnavelu Chetty ILR 49 Mad. 525 ref.

Raham Badshah Khattak, Advocate Supreme Court for Petitioner.

Sardar Muhammad Aslam, Deputy Attorney‑General and Ms. Mussarrat Hillali, Additional A‑G. for the State.

Date of hearing: 11th October, 2002.

2003 S C M R 251

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SALEEM and 2 others‑‑‑Appellants

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, ISLAMABAD and another‑‑‑Respondents

Civil Appeals No.80 to 82 of 2001, decided on 28th June, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 15‑5‑2001 passed in Appeals No.448 to 450/98).

(a) Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑--

‑‑‑‑Credit Manual of Agricultural Development Bank of Pakistan, Rr.2.17 & 2.28‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service on charge of gross misconduct, negligence and inefficiency‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether the rules governing the petitioners were statutory in nature and that inquiry report was not furnished to them, which had violated principles of natural justice; whether authorised officer had failed to issue any notice to petitioners after receiving inquiry report, which had prevented petitioners from explaining their position qua inquiry report; whether Service Tribunal in impugned judgment had not discussed the merits of case of petitioner in spite of the fact that he had been proceeded against on entirely different charges than the one levelled against petitioner in the other petition and whether concerned authority lacked jurisdiction under the rules to decide the matter .

(b) Civil service‑

‑‑‑‑ Official responsible for procedural irregularities in financial institutions‑‑­Duty of competent authority‑‑‑Such irregularities cannot be taken lightly‑‑­Such officials must be proceeded against for an appropriate action under relevant rules by competent authority.

(c) Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑-

‑‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Dismissal from service‑‑‑Charge of gross misconduct. inefficiency and negligence‑‑‑Dismissal of departmental appeals as well as appeals before Service Tribunal‑‑‑Plea of appellants was that non‑supply of copy of inquiry report and non‑issuance of second show‑cause notice had rendered such dismissal order illegal‑‑‑Validity‑‑‑Appellants during departmental proceedings. had neither demanded for supply of copy of inquiry report nor supply of such copy and issuance of second show‑cause notice was essential under Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑Appellants had neither raised such plea in departmental appeals nor before Service Tribunal nor pleaded that because of such reason, they had been caused any prejudice in proceedings before Inquiry Officer and authorised officer‑‑­Supreme Court repelled such plea as having no force.

(d) Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975‑‑‑-

‑‑‑‑Credit Manual of Agricultural Development Bank of Pakistan,R.2.28‑‑­Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Dismissal from service‑‑‑Charge against appellants (Mobile Credits Officers of Bank) to have committed gross ‑irregularities in grant of loan‑‑‑Award of such punishment to appellants‑‑‑Dismissal of departmental appeals as well as appeals before Service Tribunal‑‑‑Plea of appellants was that they having processed loan cases had placed same for approval before sanctioning authority, who was duty bound to satisfy himself about fulfilment of requirement of Rule 2.28 of Credit Manual and in case of failure, such authority would directly be responsible for violation of such rules‑‑‑Validity‑‑‑Charge sheet did not contain allegation of misappropriation or embezzlement of bank money by appellants, rather they had been charge sheeted for allegation of having processed loan cases in violation of Rule 2.28 of Credit Manual and having failed to ask for adequate security for loan, as a result of which there was risk of its non‑payment‑‑‑None of appellants was holding authority to sanction loan, rather their function as Mobile Credit Officer was to process loan cases for approval of sanctioning authority‑‑‑Managers of concerned Branches were authorised to sanction loan and not the appellants‑‑‑Manager being incharge of Branch would ultimately be responsible for all affairs of the Branch‑‑‑Manager could neither shift his responsibility to his subordinates nor claim any immunity therefrom on the ground that he, while discharging the function of sanctioning authority, was not supposed to undertake the exercise of scrutiny of documents‑‑‑Appellants had not been charged for committing alleged irregularities for financial gain or that they had extended favour to loanees in violation of rules without knowledge of Managers‑‑‑Nothing was available on record to show that concerned Managers had been misled and misguided in discharge of their duty by appellants‑‑‑Departmental authorities without taking notice of negligence of Managers, who had sanctioned loans in violation of Rule 2.28 of Credit Manual, had shifted burden to their subordinates through discrimination as such Manager had either been exonerated from the charge or had not been proceeded against under the rules‑‑‑Bank had adopted policy of pick and choose in departure of rule of fair play and equal treatment in matter of fixing responsibility of all concerned‑‑‑Neither departmental authorities nor Service Tribunal had taken pain to ascertain correct position and fix the responsibility for violation of the rule‑‑‑Appellants were not exclusively responsible for alleged irregularities to be proceeded against for departmental action‑‑‑Question as to whether non‑recovery of loans was due to fault or negligence of appellants or the loanees failed to discharge their liability, had not been properly determined‑‑‑Supreme Court accepted appeals, set aside impugned judgment and reinstated appellants in service‑‑­Appellants were not granted back benefits in view of the nature of allegation against them as they were discharging sensitive duty of processing loan cases, but they would be deemed to be in service continuously in all respects including seniority, promotion and pension.

Sharafat Ali Nadeem v. Federal Service Tribunal 1987 SCMR 1774; Inayatullah Khan v. Provincial Government N.‑W.F.P. 1985 SCMR 1747; Faizul Haq v. N.‑W.F.P. Chief Secretary 1984 SCMR 451; Fouzia Ahmad v. First Women Bank Ltd. 1999 PLC (CS) 1194 and Mir Muhammad v. N.‑W. F. P. Government through Chief Secretary PLD 1981 SC‑176 ref.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (in C. A. 80 of 2001) for Petitioner.

Shah Abdur Rashid, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (in C.A. 81‑82 of 2001) for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record (Absent) for Respondent No.1 (in all cases).

Sardar Muhammad Aslam, Dy. A.G: and M.S. Khattak, Advocate ­on‑Record for Respondent No.2 (in all cases). , Dates of hearing: 26th to 28th June, 2002.

2003 S C M R 265

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokar, JJ

GOVERNMENT OF PAKISTAN and others‑‑‑Appellants

Versus

Messrs SAIF TEXTILE MILLS LTD. and 6 others‑‑‑Respondents

Civil Appeals Nos. 1210 to 1216 of 1997, decided on 16th October, 2002.

(On review from the judgment/order dated 27th September, 1995 passed by Peshawar High Court, Peshawar in C.M.As. Nos. 927, 928 and 949, 1044 of 1995).

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 19‑‑‑Sales Tax Act (III of 1990), S.7(2)(1)‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Exemption‑‑‑Leave to appeal was granted by the Supreme Court to re‑examine further the contentions that the office order issued on the basis of Economic Coordination Committee of the Cabinet Division could not be considered as a notification issued in terms of the provisions of the Customs Act, 1969, and therefore the exemption, which was claimed on the basis of decision of Economic Coordination Committee of the Cabinet Division could not be given effect to by amending the judgment already pronounced by the High Court in the main Constitutional Petition and that if the respondent wanted to enforce the decision of the said Committee, which was based on a separate cause of action they should have filed a separate Constitutional petition and the order already passed by the High Court disposing of the train Constitutional petition could not be amended so as to give effect to the decision of the Committee.

(b) Customs Act (IV of 1969)‑‑---

‑‑‑‑Ss. 18(2)(3) & 20‑‑‑Sales Tax Act (VII of 1990), S.13‑‑­S.R.O.517(I)/1989, dated 3‑6‑1989‑‑‑Constitution of Pakistan (1973), Sched. IV, Part I, Art. 43‑‑‑Expression "Exemption from whole of the Customs duty" includes Customs duty as defined under S.18(1) and regulatory duty covered under S.18(2)(3) of the Customs Act, 1969‑‑­Customs duty includes regulatory duty‑‑‑If the assessee was entitled to relief, he could not be non‑suited merely for technical reasons‑‑‑Principles.

Abdur Rahim v. Federation of Pakistan PLD 1988 SC 670; Assistant Collector, Customs v. Gadoon Textile Mills Ltd. 1994 SCMR 712 and Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 ref.

(c) Interpretation of statutes‑----

‑‑‑‑ Word used in a singular form in a provision can also be construed in a, plural sense to achieve the object of law.

Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court and blur Ahmad Khan, Advocate‑on‑Record for Petitioners (in all Petitions).

Wasim Sajjad, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in all petitions.)

Date of hearing: 16th October, 2002.

2003 SCMR 271

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad, Chaudhry and Abdul Hameed Dogar, JJ

ZAKARIA H.A. SATTAR BILWANI and another‑‑‑Petitioners

Versus

INSPECTING ADDITIONAL COMMISSIONER OF WEALTH TAX, RANGE‑II, KARACHI‑‑‑Respondent.

Civil Petitions Nos. 999/K and 1000/K of 2001, decided on 1st July, 2002.

(On appeal from the judgment/order, dated 16‑10‑2001 passed by High Court of Sindh Karachi in Wealth Tax Appeals Nos.99‑100 of 2001).

(a) Interpretation of statutes‑--------

‑‑‑‑ Retrospective effect of statute‑‑‑Scope‑‑‑Where any statute affects substantive right, it would operate prospectively unless by express enactment or necessary intendment retrospective operation has been given.

Malik Gul Hassan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 ref.

(b) Wealth Tax Act (XV of 1963)‑-----

‑‑‑‑S. 17‑B (as added by Finance Act (VII of 1992))‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Assessment order, cancellation of‑‑­Provisions of S. 17‑B of Wealth Tax Act, 1963 (as added by Finance Act (VII of 1992)) whether had retrospective effect‑‑‑Assessment orders for the years 1988‑89 to 1991‑92 were cancelled by Inspecting Additional Commissioner (Wealth Tax) under the provisions of S. 17‑B of Wealth Tax Act, 1963, vide order, dated 8‑11‑1993‑‑‑Plea raised by the assessee was that since the provisions of S. 17‑B of Wealth Tax Act, 1963, were to take effect from 1‑7‑1992, the Commissioner had wrongly applied the said provisions retrospectively‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider, whether S. 17‑B of Wealth Tax Act, 1963, would be applicable retrospectively or prospectively.

Malik Gul Hassan & Co. and 5 others v. Allied Bank of Pakistan 1.996 SCMR 237 ref.

Iqbal Naeem Pasha, Advocate Supreme Court and K. A. Wahab, Advocate‑on‑Record for Petitioners.

Nemo for Respondent., Date of hearing: 1st July, 2002.

2003 S C M R 276

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehrnan Ramday and Karamat Nazir Bhandari, JJ

MUHAMMAD AFZAL VIRK, S.D.O.‑‑‑Appellant

Versus

CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA, GUJRANWALA and another‑‑‑Respondents

Civil Appeal No.942 of 1996, decided on 19th September, 2002.

(On appeal from the judgment of the federal Service Tribunal, Islamabad, dated 24‑4‑1995, passed in Appeal No.366(L) of 1994).

Pakistan Water and Power Development' Authority Employees (Efficiency and Discipline) Rules, 1978‑‑‑

‑‑‑‑S. 4(1)(a)(vi)‑‑‑Minor penalty‑‑‑Acts of omission and commission‑‑­Causing pecuniary loss to the department‑‑‑Withholding of increment for two years‑‑‑Appellant being Sub‑Divisional Officer in Water and Power Development Authority provided electric connection to a consumer under Tariff 04‑A instead of Tariff 07‑A1‑‑‑Allegation against the appellant was that the consumer was running poultry farm which was categorized as industry under Tariff 07‑A1 but the appellant provided connection under Tariff 04‑A as commercial connection‑‑‑Such connection caused a loss of an amount of Rs.39250 to Water and Power Development Authority‑‑‑Show cause notice was issued to the appellant and having being dissatisfied with the reply to the notice, increment for two years was withheld and amount of Rs.39250 was ordered to be recovered‑‑‑Departmental appeal was partly accepted and penalty of withholding of increments was set aside‑‑‑Appeal before Service Tribunal was dismissed and the decision of appellate authority was maintained‑‑‑Validity‑‑Action of appellant for sanction of electricity connection for commercial purpose was not within his power and he sanctioned the same with ulterior motives‑‑‑Appellant in his reply to show cause notice had thrown the responsibility on the shoulders of Supervisor by stating that he did not bring the same to his knowledge and sanctioned the same in routine and casual manner‑‑‑Such explanation given by the appellant was mala fide on his part and the same was not acceptable‑‑Penalty imposed by the authorities was according to the rules and the same was within the domain of Competent Authority‑‑‑Authorities having already shown leniency to the appellant, further leniency in the present case was not fair‑‑‑Judgment passed by Service Tribunal was well reasoned, and was based on proper appreciation of material available on record and the same was not open to exception‑‑‑No substantial question of law of public importance as envisaged under, Art.212(3) of the Constitution was involved‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Appeal was dismissed.

Shaukat Ali Mehr,. Advocate Supreme Court and Mehdi Khan 'Mehtab, Advocate‑on‑Record (absent) for Appellant.

M. Saleem Ch., Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 18th September, 2002.

2003 S C M R 280

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

MUHAMMAD AFZAL‑‑‑Petitioner

Versus

SHAHZAD ASGHAR DAR and others‑‑‑Respondents

Civil Appeal for Leave to Appeal No. 1556 of 2002, decided on 7th October, 2002.

(On appeal from the judgment dated 11‑9‑2002 of the Lahore High Court, Lahore passed in Writ Petition No. 14498 of 2002).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.199 & 185(3)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Auction for collection of fee for Bakar Mandi‑‑‑Contract‑‑‑Concluded contract‑‑­Contention of the petitioner was that matter, being a past and closed transaction and contractor having embarked upon the collection of fee, the High Court under Art. 199 of the Constitution did not have any jurisdiction to interfere in the matter‑‑‑Validity‑‑‑Held, contention of the petitioner was devoid of force‑‑‑Sanctity had to be attached to a concluded contract but the said contract must be transparent and ought to have been made keeping in view the overall interest of the leasing body‑‑‑Contract should not be tainted with mala fides or obtained through underhand means‑‑‑Public exchequer should not be made to suffer due to exercise of power in an arbitrary and unreasonable manner giving extra favour to one party at the cost of other‑‑­Auction for 11 months for the previous year was Rs.11,25,000 while present lease rights had been given for Rs.8,25,000 with a net loss of Rs.3,00,000 to the public exchequer‑‑‑Judgment of the High Court was just and proper in interfering in the matter as it had protected the interest of both the sides‑‑­Petition for leave to appeal against order of the High Court was dismissed in circumstances by the Supreme Court.

Messrs Ittehad Cargo Service and others v. Messrs Syed Tesneem Hussain Naqvi and others PLD 2001 SC 116 distinguished.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioner.

Ghulam Sabir, Advocate Supreme Court with Kh. Ejaz Feroze, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 7th October, 2002.

2003 SCMR 285

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and

Abdul Hameed Dogar, JJ

KHALID MEHMOOD RAJA ‑‑‑ Appellant

Versus

DIRECTOR‑GENERAL, PAKISTAN RANGERS (SINDH) and another‑‑‑Respondents

Civil Petition No.3203 of 2001 decided on 17th September, 2002.

(On appeal from the judgment dated 8‑10‑2001 of the Federal Service Tribunal, passed in Appeal No.761(R)(CS) of 2000).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal before Service Tribunal‑‑‑Case remanded ‑‑‑Service Tribunal dismissed the appeal of civil servant for the reason that in earlier judgment passed by Supreme Cot‑it, no direction was given that the civil servant would be entitled to file appeal in case any order adverse to the civil servant was passed‑‑­Respondents/authorities consented for remand of appeal to Service Tribunal for decision afresh‑‑‑By consent of the parties, the petition for leave to appeal was converted into appeal and judgment passed by Service Tribunal was set aside‑‑‑Case was remanded to Service Tribunal for decision afresh on merits‑‑‑Appeal was allowed.

Petitioner in person.

Hafiz S.A. Rehman, Deputy Attorney‑General for Pakistan.

Date of hearing: 17th September, 2002.

2003 S C M R 286

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

MUHAMMAD BAKHSH‑‑‑Petitioner

Versus

ELLAHI BUKHSH and others-‑‑Respondents

Civil Petition for Leave to Appeal No.882 of 2000, decided on 3rd October, 2002.

(On appeal from the judgment dated 28‑4‑2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revision No.372‑D of 1987).

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

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings recorded by Courts below‑‑­Reversal of such findings by High Court‑‑‑Scope‑‑‑Principles.

Once the concurrent findings are rescorded by the two Courts below i.e. the Civil Judge and the District Judge, the reversal thereof by the High Court does not fall within the scope of revisional jurisdiction to be exercised by it under section 115, C.P.C. This is, however, not an absolute rule. The High Court is well‑empowered to reverse the findings of the Courts below if those are not supported by the record or the Courts below have misread the game resulting into serious miscarriage of justice.

Concurrent findings in any case could be reversed by the High Court while exercising revisional jurisdiction under section 115, C.P.C. for the reason that the scope of said section was not narrow and limited.

Where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law, that can be reversed justifiably by High Court while exercising revisional jurisdiction as conferred upon it under section 115, C.P.C. and interference may be made in concurrent findings when the same are based on insufficient evidence, misreading of evidence, non‑consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken due to non‑reading and misreading of evidence.

Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443; Muhammad Bakhsh and 4 others Y. Province of Punjab through District Collector, Multan (Now Lodhran) and 2 others 1994 SCMR 1836; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Muhammad Siddique v. Muhammad Akram 2000 SCMR 533; Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 ref.

(b) Islamic Law‑‑‑--

‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Principle‑‑‑Mere recital in the gift deed that possession has been delivered to the donee would not be enough unless the delivery thereof was proved by cogent evidence‑‑‑Where the possession of the property, the main ingredient‑of the gift was missing, the gift, could not be given any credence.

Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 and Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34 ref.

(c) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Validity‑‑‑Donor, in the present case, was at the fag‑end of his life having crossed the age of eighty years, living with donee who must have operated certain influence upon him‑‑‑Alleged gift wits made on 22‑6‑1977 while the donor expired 14 days thereafter on 6‑7‑1977 which also created doubts and gave support to the stance that the alleged gift was not genuine‑‑Property alleged to have been gifted was situated at place C but the gift deed was allegedly got registered at place B, which was, at a distance of more than 100 miles‑‑‑Alleged execution of the gift deed had' been carried out in a highly dubious manner and the Courts below had totally failed to appreciate all such‑factums‑‑‑Gift, in circumstances, could not be sustained‑‑‑Supreme Court set aside the judgments of the Courts below.

Muhammad Jaffar Hashmi, Advocate. Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nazir Ahmed Bhutta, Advocate Supreme Court for Respondents.

Date of hearing: 3rd October, 2002.

2003 S C M R 291

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

Dr. NAVEEDA TUFAIL and 72 others‑‑‑Appellants

Versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Civil Petitions Nos. 1093 to 1117, 1135 to 1141, 1169 to 1183, 1190 to 12.14 .end 1229 of 2002, decided on 25th September, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 3‑5‑2002 passed in Appeals Nos. 1533, 889, 901, 1045, 1082 of 2001, 1385 to ‑1388, 1390 of 2000, 1634, 1546, 1831, 1578, 1579, 1588, 1607, 1608, 1609, 1618, 1634, 1698, 1815, 1831, 2259 of 2001, 881 to 883, 1546, 1547, 1811, 1897 of 2001, 878, 879, 880, 884, 888, 890, 892, 893, 895, 915, 1043, 1044, 1046, 1625, 1644 of 2001, 1546, 1539, 887, 894, 898, 899 of 2001, 1391 of 2000, 1410, 1414, 1415, 1504, 1517, 1549, 1550, 1552, 1553, 1554, 1555, 1675, 897, 914, 917, 1565, 1583, 1625 and 1612 of 2001 respectively).

(a) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.2(i)(a)‑‑‑Ad hoc appointment‑‑‑Effect‑‑‑Making recruitment on ad hoc basis with or without advertisement of the posts in normal circumstances amounts to curtailment of the legitimate right of appointment of deserving persons on regular basis and is against the policy of law.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.2(1)(a)‑‑‑Ad hoc appointment‑‑‑Object, purpose, scope and duration‑‑­Concept of ad hoc appointment against the‑ post in public sector is a stop‑gap arrangement which is not a permanent characteristic of civil service‑‑‑Not proper in public sector to occupy the posts required. to be filled through the method prescribed by law, by making ad hoc appointments and allow the incumbents to continue in the same position beyond the terms of their employment without taking any step for filling posts on regular basis‑‑‑Ad hoc employee has no‑ right to hold the post beyond the period for which he was appointed and it is also not right for the Government to continue ad hoc appointment for number of years without undertaking the exercise of selection on regular basis in the prescribed manner‑‑‑Appointment of a duly qualified person on ad hoc basis made otherwise in accordance with prescribed method of recruitment is made only in exceptional circumstances‑‑‑Stop‑gap arrangement as a temporary measure for a specified time does not by itself confer any right on the incumbent for regular appointment or to hold the same for indefinite period‑‑‑If the incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, such incumbent would carry the right to be considered for permanent appointment through the process of selection‑‑Continuation of ad hoc appointment for considerable length of time would create an impression in the mind of employee that he was being really considered to be retained on regular basis‑‑‑Ad hoc appointment by its very nature is transitory which is made for a particular period and creates no right in favour of incumbent with lapse of time‑‑‑Appointing authority may in its direction, if necessary, make ad hoc appointments but it is not open for the authority to disregard the rules relating to the filling of vacancies on regular basis in the prescribed manner‑­Practice of making appointments on ad hoc basis for continuous period without taking steps for fulfilling the vacancies' through the process of selection in the prescribed manner amounts to misusing the authority‑‑­Appointment on ad hoc basis except in exceptional circumstances was deprecated by the Supreme Court with observation that such appointment should not be allowed to continue beyond the period for which it was initially made.

(c) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 5‑‑‑Appointment in public sector‑‑‑Duties of public authorities‑‑­Scope‑‑‑Such appointment is a trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law so that no person who is eligible to, hold such post is excluded from the process of selection and is deprived of his right of appointment in service.

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

‑‑‑‑Part. II & Chap‑1 [Arts.7 to 26]‑‑‑Employment‑‑‑Fundamental rights‑‑­Applicability‑‑‑Scope‑‑‑Employment for a common person is source of I livelihood and right of livelihood is an undeniable right to a person ‑‑‑ If work is sole source of livelihood of a person, then right to work is not less than a fundamental right which has to be given protection accordingly.

(e) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 2(i)(a) & 10‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Ad hoc appointment, regularization of‑‑‑Principle of equality ‑‑‑Applicability‑‑‑Petitioners were appointed as lecturers by Provincial Government on ad hoc basis‑‑‑Despite having been appointed for many years, the Provincial Government declined to regularize the. posts of petitioners, whereas the similar appointees by Federal Government had already been regularized‑‑‑Petitioners contended that non‑regularizing of the posts was against the principles of equality as contained in Art.25 of the Constitution ‑‑‑Validity‑‑­Petitioners being employees of Provincial Government could not claim regularization as of right in the light of policy of Federal Government but the principle of equality as embodied in Art.25 of the Constitution would demand that the petitioners while facing similar circumstances should be treated in the similar manner‑‑‑Principle of equality would impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government would stand at par with that of the ad hoc employees of Federal Government and it would be fair, just and proper to consider the cases of petitioners for regularization‑‑‑Ad hoc appointments having created a legitimate expectancy in the minds of petitioners for their retention on regular basis, Supreme Court directed the Provincial Government, while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government, to initiate the process of regularization of petitioners through Provincial Public Service Commission‑‑‑ Supreme Court further directed that in case any of the petitioners was not found suitable by the Public Service Ommission, he would not be retained in service‑‑­Petition for leave to appeal was, converted into appeal and . was allowed.

Amjad Ali and others v. Board of Intermediate and Secondary Education and others 2001 SCMR 125; Dehli Transport Corporation v. D.T.C. Mazdoor Congross AIR 1991 SC 101; Abdul Jabbar Memon v. P.I.A. Human Rights case No.104 of 1992; Abdul Maid Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Federation of Pakistan v. Rais Khan 1993 SCMR 609; 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. Nasir lqbal C.P. No.768‑L of .1197; Gohar Masood v. Secretary Health Department 2001 SCMR 1128; Director Social Welfare N.‑W.F.P Peshawar v. Saadullah Khan 1996 SCMR 1350; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46; Muhammad Shahbaz Cheema v. Province of Punjab 1981 SCMR 469; Muhammad Azam Ali v. Government of the Punjab through Chief Secretary 1985 SCMR 1408; Nasarullah 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; Abdul Jabbar Memon and others 1996 SCMR 1349; Province of Punjab v. Azhai Abbas 2002 SCMR 1; Chief Secretary, Government of Punjab v. Abdul Majeed 2001 SCMR 1971 and Government of the Punjab v. Ghulam Rasool Zahid 1985 SCMR 1614 ref.

(f) Constitution of Pakistan (1973)‑‑‑-

‑‑‑‑Art.212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Petition for leave to appeal‑‑‑Raising of new plea‑‑‑Question of general public importance‑‑‑Authorities contended that the plea not raised by the petitioners before Service Tribunal could not be agitated before Supreme Court‑‑­Validity‑‑‑Questions of general public importance being involved in the petition, the technical 'objection was not allowed by Supreme Court to be raised.

Ch. Akhtar Ali, Advocate Supreme Court/Advocate‑on‑Record for Petitioners (in C. Ps. Nos. 1190 and 1191 of 2002).

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Ziadi, Advocate‑on‑Record for Petitioners (in all other Cases).

Maqbool Ellahi Malik, Advocate General, Punjab, with Tariq Mahmood Khokhar, Additional Advocate‑General Punjab for Respondents in all cases).

Date of hearing: 9th July, 2002.

2003 S C M R 309

[Supreme Court of Pakistan]

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

MUHAMMAD AYUB and others‑‑‑Petitioners

Versus

DEPUTY ADMINISTRATOR (RESIDUAL PROPERTY), JHELUM and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos. 14 and 15 of 2002, decided on 10th September, 2002.

(On appeal from judgment dated 30‑10‑2001, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 19‑R of 1989 and Civil Revision No.94‑D of 1989, respectively).

Settlement Scheme No. IX‑‑‑

‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Transfer Order in favour of respondent having attained finality on being upheld by the High Court, the Trial Court had correctly decreed the respondent's suit for possession in his favour‑‑‑Lower forums as well as the High Court had very minutely examined the record available and decided the matter purely in accordance with law‑‑‑No misreading or non‑reading of material evidence, or jurisdictional error or misconstruction of law was noticed in the impugned judgment, which was based on valid, sound and legal grounds‑‑‑No question ,f law of public importance was involved in the case‑‑‑Contentions of the petitioners, in any case, were not tenable‑‑‑Petitions being without merit and substance, leave to appeal was declined by the Supreme Court.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners (in both Petitions).

Nemo for Respondents.

Date of hearing: 10th September, 2002.

2003 S C M R 313

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

PAKISTAN through Secretary, Ministry of Finance, Government of Pakistan Islamabad and 3 others‑‑‑Appellants

Versus

Messrs LUCKY CEMENT LTD., PESHAWAR and another‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos.369 and 370‑P of 2001, decided on 26th September, 2002.

(On appeal from the judgment, dated 25‑5‑2001 passed by Peshawar High Court, Peshawar in Writ Petition 1144 of 1997).

Central Excises Act (I of 1944)‑‑‑

‑‑‑‑Ss. 2(17) & 4(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Excise duty, inclusion in retail price‑‑‑Duties of excise on cement were declared by High Court not to form part of retail price and the manufacturers of cement were not liable to pay such duties of excise forming part of retail price of cement‑‑‑Contentions of the Authorities were that the provisions contained in Ss.4(2) & 2(17) of Central Excises Act, 1944, had been misconstrued and misinterpreted by ignoring its true signification, purport and meaning which resulted in serious miscarriage of justice, that the excise duty being tax was included in 'retail price' as envisaged in S.4(2) of the Central Excises Act, 1944, which included all taxes and charges which aspect of the matter escaped notice; that 'retail price' had not been understood in its true perspective which included excise duty that provisions as contained in Art. 199 of the Constitution could not have been invoked without approaching forums concerned available under the hierarchy of excise laws for the redressal of their grievance, if any, and that the manufacturers could not be considered as aggrieved party because it collected duty from the customers which was credited to the public exchequer and such duties were paid by the consumers and thus Constitutional jurisdiction as conferred upon High Court under Art. 199 of the Constitution could not be invoked‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions raised by the Authorities.

G.G. in Council v. Madras Province AIR (32) 1945 PC 98; Hirjina & Co. (Pak.) Ltd. v. Commissioner of Sales Tax 1971 SCMR 128; Atlas Battery Ltd. v. Superintendent, Central Excise and Land Customs PLD 1979 Kar. 545; Atlas Battery Ltd. v. Superintendent, Central excise and Land Customs PLD 1984 SC 86; Commissioner of Income‑tax v. Hamdard Dawakhana (Waqf) PLD 1992 SC 847; Income‑tax Officer v. Chappal Builders 1993 SCMR 1108; Ejaz Shafi v. Federation of Pakistan PLD 1997 Kar. 604; Zafar Ali Khan v. Government of Pakistan 1997 PTD 1829; Indo Ashi Glass Company v. Income‑tax Officer 1998 PTD 2860; Central Board of Revenue v. Sheikh Spinning Mills Ltd. 1999 SCMR 1442; Deputy collector v. Premier Tobacco Industries Ltd. 1993 SCMR 447 and Collector . Customs and Central Excise, Customs House, Multan v. Pakistan Dairies. Kabirwala 2001 PCTLR 550 ref.

M. Sardar Khan, Senior Advocate Supreme Court and Tasleem Hussain, Advocate‑on‑Record for Petitioners (in both Petitions).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondents (in both Petitions).

Date of hearing; 26th September, 2002.

2003 S C M R 318

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

Mst. ARSHAN BI through Mst. Fatima Bi and others‑‑‑Petitioners

Versus

MAULA BAKHSH through Mst. Ghulam Safoor and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.1133 of 2002, decided on 16th September, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 19‑4‑2002 passed in Civil Revision No.565 of 994)

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

--‑S.42‑‑‑Suit for declaration‑‑‑Mutation‑‑‑Entry of wrong Khasra numbers the property in Revenue Record‑‑‑Record showed that disputed Khasra embers were got included by the predecessor‑in‑interest of the petitioner with collusion of the Revenue Staff in a mala fide manner and usurped the property belonging to the respondents‑‑‑Respondents were simply knocker, out and deprived of their land on technical grounds that consequential relief was not claimed‑‑‑Validity‑‑‑If a party seeking declaration had failed to claim consequential relief, he should not have been non‑suited on technical grounds‑‑‑Denial of relief to a party simply on the ground that consequential relief was not claimed would, in no circumstances, advance the cause of justice‑‑‑Party should not be made to suffer on account of an act or omission on the part of Court or other State functionaries‑‑‑Petitioner had successfully kept the respondent out of his property on technical grounds wrongly created by the functionaries of the Revenue Department to which they had no right either morally or legally.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 and The State v. Asif Adil and others 1997 SCMR 209 ref.

(b) Administration of justice‑---

‑‑‑‑ Technicalities not to create hurdles in the way of substantial justice‑­Rights of people‑‑‑System giving effect to the form and not to substance defeats substantive right‑‑‑Principles‑‑‑Duty of Court.

Technicalities shall not create hurdles in the way of substantial justice. Rules and regulations are made to foster the cause of justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the courts to do substantial justice and not to deny the same on mere technicalities.

Deep understanding and keen observance of proceedings is a sine to non for doing justice in the Constitutional set‑up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the arties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities hen the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and/or is Government or a. State institution or functionary acting as such.

Mere technicalities, unless offering insurmountable hurdles, should of be allowed to defeat the ends of justice.

The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy.

Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his.

The Judges while dispensing justice are duty bound to apply the provisions of law in their true perspective and the same cannot be avoided simply on the ground that such provisions were not brought to their notice by the parties.

A Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter.

Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Manager, Jammu and Kashmir, State Property In Pakistan v. Khuda Yar and another PLD 1975 SC 678; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 and Board of Intermediate and Secondary education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 ref.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Suit for declaration‑‑‑Failure of plaintiff to claim consequential relief‑‑‑Effect‑‑‑If the suit was otherwise maintainable and plaintiff was entitled to the relief it was open to the Court to allow him to amend the plaint by adding a prayer for possession and fixing the appropriate court‑fee and then to grant him relief even though he had not specifically asked for the same‑‑‑Denial of relief to a party simply on the ground that consequential relief was not claimed, in no circumstances, would advance cause of justice‑‑‑Natural result of declaration would be that consequential relief had to be given by the Court even if the same was not claimed.

Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali. Advocate‑on‑Record for Petitioners.

Samad Mahmood, Advocate Supreme Court for Respondents (on Count's Notice).

Date of hearing: 16th September, 2002.

2003 S C M R 325

[Supreme Court of Pakistan]

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

PROVINCE OF SINDH through Chief Secretary Sindh, Karachi and 4 others‑‑‑Appellants

Versus

GUL MUHAMMAD HAJANO‑‑‑Respondent

Civil Petition for Leave to Appeal No.385‑K of 2002, decided on 17th July, 2002.

(On appeal from judgment dated 21‑2‑2002, passed by the High Court of Sindh, Karachi, in Constitutional Petition No.D‑641 of 2001).

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑­Constitutional jurisdiction of High Court ‑‑‑Scope‑‑‑Seniority‑‑­Implementation of summary approved by Chief Minister for protection of seniority and fixation of pay‑‑‑High Court directed the authorities to implement the summary‑‑‑Plea raised by the authorities was that as the matter related to terms and conditions of service, therefore, it was outside the jurisdiction of High Court‑‑‑Constitutional petition filed by the civil servants was allowed on the ground that no order of Government was being called in question and only an obligation to perform its duties to pass orders within a reasonable time was being invoked‑‑‑Validity‑‑‑Judgment passed by High Court was based on sound valid and legal grounds and was in accordance with the law laid down by Supreme Court‑‑‑No misreading, non‑reading of material placed before the High Court existed and there was no misconstruction of facts and law‑‑‑No question of general public importance being involved in the case leave to appeal was refused.

Suleman Habibullah, Additional Advocate‑General, Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Respondent in person.

Date of hearing: 17th July, 2002.

2003 S C M R 327

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza and Falak Sher, JJ

ALI REHMAN‑‑‑Appellant

Versus

FAZAL MEHMUD and 8 others‑‑‑Respondents

Civil Appeals Nos. 277 and 278 of 1995, decided on 15th November, 2002.

(On appeal from the common judgment dated 14‑11‑1994 of the Peshawar High Court, Peshawar passed in Regular First Appeal Nos.21 of 1993 and 41 of 1993).

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

‑‑‑‑S.53‑A‑‑‑Registration Act (XVI of 1908), S.49‑‑‑Part performance‑‑­Non‑registration of document‑‑‑Effect‑‑No equitable doctrine including the one contained in S.53‑A. Transfer of Property Act, 1882 can override the specific provisions of S.49, Registration Act, 1908 and no document required to be registered can confer title to immovable property in case the same was unregistered.

Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 ref.

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

‑‑‑‑S.53‑A‑‑‑Registration Act (XVI of 1908), S.49‑‑‑Scope and application of the two provisions‑‑‑Provision of S.53‑A, Transfer of Property Act, 1882 evolving an equitable doctrine cannot become redundant in view of S.49, Registration Act, 1908 provided the conditions laid down therein are duly fulfilled in the circumstances of each case‑‑‑Equitable doctrine embodied in S.53‑A, Transfer of Property Act, 1882 is fully applicable provided certain conditions laid down in the section itself are fulfilled.

If the equitable doctrine contained in section 53‑A of the Transfer of Property Act, 1882 is not followed in the given circumstances, it would render section 53‑A of the Transfer of Property Act as redundant. This cannot be the intention of Legislature because the Legislature is not supposed to enact a law which becomes redundant from the very date of its enactment and that at the time of insertion of section 53‑A of Transfer of Property Act the Legislature was not aware of the existence of section 49 of Registration Act. Section 53‑A evolving an equitable doctrine cannot become redundant provided the conditions laid therein are duly fulfilled in the circumstances of each case.

The equitable doctrine embodied in section 53‑A of the Transfer of Property Act, is fully applicable provided certain conditions laid down in the section itself are fulfilled.

Naib Subedar Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 1265 and Habibur Rehman and another v. Mst. Wahadania and others PLD 1984 SC 424 ref.

(c) Transfer of Property Act (IV of 1882)‑‑‑-

‑‑‑‑S.53‑A‑‑‑Deriving benefit of S.53‑A, Transfer of Property Act, 1882‑‑­Conditions all the conditions laid down in S.53‑A. Transfer of Property Act, 1882 are satisfied, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee leas taken possession except a right which transferor is entitled to enforce by virtue of that contract.

(d) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑S.53‑A‑‑‑Execution of two agreements‑‑‑Signatures of the transferor‑‑­Proof ‑‑‑Necessary ingredient‑‑‑Where the execution of the agreements could not be proved by proving the signatures of the transferor, for, he was not confronted in the witness‑box with the alleged signatures, necessary ingredient of S.53‑A, remained unfulfilled.

(e) Transfer of Property Act (IV of 1882)‑‑‑--

‑‑‑‑S.53‑A‑‑Possession of property‑‑‑Failure of transferee to obtain physical possession‑‑‑Effect‑‑‑Where the transferee had failed to obtain the physical possession of the property and execution of deed was also not proved in accordance with law he could not gain any benefit of S.53‑A, Transfer of Property Act, 1882 as two important ingredients of S.53‑A were missing‑‑­Benefit of equitable doctrine embodied in S.53‑A, Transfer of Property Act, 1882 could be derived by a party provided all the ingredients of the section were factually proved‑‑‑Principles.

The most important ingredient of section 53‑A of the Transfer of Property Act, 1882 is the transfer of possession in favour of the transferee. If such pronounced and tangible act of transfer of physical possession is in favour of the transferee, the equity must favour him and he be allowed to defend his possession even on the basis of an unregistered deed. In the present case the transferee had failed to obtain physical possession of the disputed house. The non‑delivery of possession was rather conceded by the transferee. His case was that the possession remained with the transferor because of the latter's induction as tenant. The execution of deeds was also not proved in accordance with law. The transferee could not derive any benefit from the said deeds so as to gain any benefit from section 53‑A of the Transfer of Property Act. He could have got executed a regular rent deed from transferor but that too he failed to obtain. In the circumstances of the present case where the transferee had failed to obtain the physical possession of the, property, he could not gain any benefit of section 53‑A of the Act. In the present case, two important ingredients of section 53‑A were missing. Not on legal side but on factual side the application of section 53‑A could not be claimed by the transferee. On legal side the benefit of equitable doctrine embodied in section 53‑A can be derived by a party provided all the ingredients of section 53‑A were factually proved.

Abdul Aziz Kundi, Advocate Supreme Court and M.Z. Qureshi Azad, Advocate‑on‑Record (absent) for Appellant (in both Appeals).

Respondents Nos. 1, 2, 6 to 9: Ex parte (in both Appeals).

M. Ismail Qureshi. Advocate Supreme Court/Advocate‑on‑Record for Respondents (in both Appeal).

Date of hearing: 3rd October, 2002.

2003 S C M R 333

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

DIN MUHAMMAD ‑‑‑Appellant

Versus

DIRECTOR‑GENERAL, PAKISTAN POST OFFICE, ISLAMABAD and 20 others‑‑‑Respondents

Civil Appeal No. 1169 of 2001, decided on 8th May, 2002.

(On appeal from the judgment/order dated 22‑9‑2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 1519 (R) of 1999).

(a) Civil Servants (Seniority) Rules, 1993‑‑‑

‑‑‑‑R. 4‑‑‑Civil Servants Act (LXXI of 1973), S.8‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether civil servant transferred from his original post without his option was entitled to seniority in the Department, where he was originally inducted and not in the Department where he was transferred without his consent/option.

(b) Civil Servants (Seniority) Rules, 1993‑‑--

‑‑‑‑8. 4‑‑‑Civil Servants Act (LXXI of 1973), S.8‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973) Art.212(3)‑‑‑Seniority on appointment by transfer‑‑‑Civil servant was appointed in Railway Mail Service, from where he was‑transferred to Postmaster General's Office as Upper Division Clerk‑‑‑Civil servant on 4‑8‑1978 joined transferee Department, where he was permanently absorbed on 1‑1‑1985‑‑‑Civil servant on being shown junior to other respondents in seniority list of UDCs of transferee Department filed departmental appeal, which remained undecided within prescribed period, thus, he filed appeal before Service Tribunal, but same was dismissed‑‑‑Validity‑‑‑Persons appointed through transfer were to be assigned seniority in accordance with the provisions of Civil Servants Act, 1973 read with rules framed thereunder‑‑‑Right of civil servant, who was initially sent to transferee Department on deputation and subsequently was permanently absorbed, would be governed in the matter of seniority under Civil Servants (Seniority) Rules, 1993‑‑‑Seniority of civil servant in transferee Department would be reckoned from date of his transfer on 4‑8‑1978 and not from date of issue of order of absorption‑‑‑Civil servant upon permanent absorption in transferee Department would become regular employee of such Department with effect from the date of initial induction as envisaged under R.4 of Civil Servants (Seniority) Rules, 1993 and not from any subsequent date‑‑‑Service Tribunal had not considered the case in the light of rules relating to determination of seniority of civil servant in such circumstances‑‑‑Supreme Court accepted the appeal and set aside judgment of Service Tribunal.

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

‑‑‑‑S. 4‑‑‑Civil Servants (Seniority) Rules, 1993, R.4‑‑‑Civil Servants Act (LXXI of 1973), S.8‑‑‑Appeal before Service Tribunal only against subsequent seniority list‑‑‑Maintainability‑‑‑Civil servant after dismissal of his departmental appeal filed against seniority list issued in year 1987 did not further agitate the matter‑‑‑Civil servant also being aggrieved with seniority list issued in year 1999, filed departmental appeal and thereafter filed appeal before, Service Tribunal‑‑‑Objection of Department was that as seniority list published ‑ in 1987 remained unchallenged, appeal preferred against subsequent seniority list was not maintainable‑‑‑Such objection would be of no consequence as on publication of subsequent seniority list in year 1999, there would be a fresh cause of action in favour of civil servant‑‑‑Appeal before Service Tribunal was maintainable.

Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.

Sardar M. Asalm, Deputy Attorney‑General and Mehr Khan Malik, advocate‑on‑Record for Respondents.

Date of hearing: 8th May, 2002.

2003 S C M R 338

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Tanvir Ahmad Khan and Sardar Muhammad Raza, JJ

GOVERNMENT OF N.‑W. F.P. through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others‑‑‑Petitioners

Versus

AURANGZEB‑‑‑Respondent

Civil Petition No.308‑P of 2001, decided on 16th July, 2002.

(On appeal from the judgment of the N.‑W.F.P. Service Tribunal, Peshawar dated 4‑6‑2001 passed in Appeal No.2806 of 2000).

(a) Civil service‑

‑Absence from duty without leave‑‑‑Removal from service‑‑‑Civil servant could not be allowed to put a premium on his abscondence in a murder case and to use the same as a ground for absence from his official duty‑‑‑Civil servant remained fugitive from law and Courts and remained in hiding for a rig time and never applied for leave despite notices‑‑Civil servant's pence without leave, in circumstances, was sufficient ground for his removal from service.

(b) Civil service‑

----Criminal proceedings" and "departmental proceeding ‑‑‑Distinction----Acquittal of civil servant from a criminal charge‑‑‑Impact‑‑‑Prosecution on a criminal charge of a civil servant and departmental proceedings against him entirely different as one relates to the enforcement of criminal liability whereas the other is concerned with the service discipline, as such, acquittal from criminal charge has no bearing on disciplinary proceedings.

Amir Abdullah v. Superintendent of Police and others 1998 SCMR 333 ref.

Sardar Shaukat Hayat, Additional Advocate‑General, N.‑W.F.P. Petitioners.

Fateh Muhammad Khan, Advocate‑on‑Record for Respondent.

Date of hearing: 16th July, 2002.

2003 S C M R 341

[Supreme Court of Pakistan]

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

THE STATE‑‑‑Petitioner

Versus

RUB DINO SHAIKH and another‑‑‑Respondents

Criminal Petitions for Leave to Appeal Nos.47‑K to 49K of 2001 and 76‑K to 78‑K of 2001, decided on 27th March, 2002.

(On appeal from judgment dated 15‑5‑2001 in Criminal Appeals Nos.44 to 46 and 41 to 43 of 1998 passed by the High Court of Sindh, Karachi).

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 420/468/34‑‑‑Prevention of Corruption Act (Il of 1947), S.5(2)‑‑­Criminal trial‑‑‑Burden of proof‑‑‑Prosecution is duty bound to produce best possible evidence to prove the forgery alleged to have been committed by the accused.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 420/468/34‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑­Neither original sanction orders alleged to have been forged had been produced, nor evidence with regard to the allegation that the accused had made the forged signatures on the said sanction orders was produced‑‑‑Mere fact that signatures on the photo‑copy of sanction orders were not in agreement with the admitted signatures of the Section Officer did not prove hat the alleged signatures on the sanction orders were made by the accused‑‑‑Such sanction orders must have been proved to have been signed or made by the accused so as to hold them guilty for commission of the offence of forgery‑‑‑No evidence was available on record to connect the accused with the commission of forgery or forgery made for the purpose of cheating‑‑­Impugned judgment of acquittal did not suffer from any illegality‑‑‑Leave to appeal was refused accordingly.

Suleman Habib Ullah, Additional Advocate‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent (in Criminal Petitions Nos.47‑K to 49‑K of 2001).

Ali Akbar, Advocate‑on‑Record for Respondent (in Cr.Ps. 76‑K to 78‑K of 2001).

Date of hearing: 27th March, 2002.

2003 S C M R 344

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ

MUHAMMAD SAEED‑‑‑Petitioner

Versus

JAVAID NIAZ and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No.166/L of 2002, decided on 4th July, 2002.

(On appeal from the order dated 19‑2‑2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous. No.811‑B of 2002).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail, cancellation of‑‑‑Death of deceased who was wife of accused had taken place in the house of accused on account of administering tranquilizers in large quantity‑‑‑Accused, instead of timely taking the deceased to hospital for treatment, disclosed as if she had been electrocuted‑‑‑Initial report of incident was lodged on the same day without any delay, but S.302, P.P.C. was incorporated subsequently after receipt of Expert Report‑‑‑No. direct role was assigned to co‑accused who was sister of accused, whereas other co‑accused who was mother of accused was released on bail .due to old age‑‑‑Rule of 'consistency was not attracted in circumstances‑‑‑Facts and circumstances of case, prima facie had connected accused with commission of heinous crime of murder of his wife‑‑‑Exercise of discretion by High Court legally was not justified in law‑‑‑Petition was converted into appeal by Supreme Court and order of High Court granting bail was set aside.

Abid Hassan Minto, Senior Advocate Supreme Court with Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner.

Pervaiz Inayat Malik, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Respondent No. 1.

Walayat Umar Chaudhry, Advocate‑on‑Record for the State.

Date of hearing: 4th July, 2002.

2003 S C M R 347

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza and Falak Sher, JJ

Malik SHAUKAT, HAYAT ‑‑‑ Appellant

Versus

WATER AND POWER DEVELOPMENT AUTHORITY, through Chairman, Lahore and others‑‑‑Respondents

Civil Appeal.No.1258 of 1996, decided on 3rd October, 2002.

(On appeal from the judgment dated 1‑10‑1995 of the Federal Service Tribunal, Islamabad passed in Appeal No.209‑R of 1995).

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

‑‑‑‑S. 4‑‑‑House rent allowance‑‑‑Fixation‑‑‑Relevancy to basic pay scale‑‑­Sanction of house rent allowance in accordance with basic pay scale and not in accordance with the designation‑‑‑Validity‑‑‑House rent is granted against the minimum of pay scale the civil servant serves in‑‑‑No reference at all is made to the designation or to the post held by the employee for drawing house rent allowance.

(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S. 18‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑House rent allowance‑‑‑Fixation‑‑‑Relevancy to basic pay scale‑‑‑Appellant being a meter reader was initially an employee of Electric Power Company‑‑‑When the company was taken over by Water and Power Development Authority, the pay fixation was finalized vide notification issued under S.18 of Pakistan Water and Power Development Authority Act, 1958‑‑‑Meter Readers in Water and Power Development Authority had been drawing salary in Basic Pay Scale‑5 but the pay already being received by the appellant as meter reader was more than other meter readers working in Water and Power Development Authority and the same corresponded to Basic Pay Scale‑7‑‑­House rent of the appellant was fixed by the Authority on the basis of the post he was holding and appeal before Service Tribunal was dismissed‑‑‑Plea raised by the appellant was that the house rent was to be fixed as per the Basic Pay Scale being enjoyed by him and not according to the post held by him‑‑‑Validity‑‑‑House rent allowance was referable to Basic Pay Scale and everyone would avail the same according to his basic pay scale and not according to his designation or post‑‑‑Fixation of house rent according to pay scale of the appellant would not disturb either the department or the colleagues because the higher pay scale happened to be given to him due to his higher salary package brought by, him from Electric Power Company—­Appellant drawing higher pay and scale was entitled to draw house rent allowance in accordance with his pay scale and not in accordance with his designation or post.

Fazal Illahi Siddiqui. Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Sh. Zamir Hussain, Advocate Supreme Court and M.A. Zaidi. Advocate‑on‑Record for Respondents.

Date of hearing: 16th September, 2002.

2003 S C M R 350

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

NASEER AHMED ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No. 129 of 2001, decided on 12th September, 2002.

(On appeal from the judgment of Lahore High Court, dated 26‑7‑2001 passed in Criminal Appeal No. 114 of 1996 and Murder Reference No.78 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) of 324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Delay of 24 hours in lodging an F.I.R. in the given circumstances was not fatal to prosecution case‑‑‑Occurrence had taken place on the metalled road in broad‑daylight‑‑‑Presence of eye‑witnesses including the injured witness in the occurrence was not questionable which even had not been seriously challenged by the defence‑‑‑Aiming of successive fire shots by the accused at the sensitive part of the body of the deceased and further an attempt by him on the life of the witness was not only the direct proof of his intention but it had also proved the motive alleged by the prosecution‑‑‑Occurrence was neither a chance encounter nor a sudden incident, but was a pre‑planned attack‑‑‑Mere fact that the deceased after sustaining injuries survived for eight days in the hospital and during this period some complication was developed and puss was found in the injury, was not sufficient to suggest that either the injury sustained by the deceased was not the cause of death or death was result of infection caused by septicaemia‑‑‑Initial registration of the case under S. 324, P.P.C. and the survival of the deceased for eight days in the hospital also was not a reason to hold that it was not an intentional murder or that it was a mitigating circumstance for lesser penalty‑‑‑Leave to appeal was declined to accused in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 12th September, 2002.

2003 S C M R 355

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

AFZAL‑UR‑REHMAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No. 142 of 2001, decided on 9th September, 2002.

(On appeal from the judgment dated 10‑8‑2001 passed by Lahore High Court, Lahore in Criminal Appeal No.76‑J of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302 & 324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Occurrence had taken place in daylight within the precincts of the place of abode of the complainant ‑‑‑F.I.R. was promptly registered‑‑‑Complainant had himself received fire‑arm injuries on his chest and his unimpeachable testimony was corroborated by the other eye‑witness whose presence on the spot was also beyond doubt being an inhabitant of the neighbourhood ‑‑‑Eye­witnesses though were closely related to the deceased persons, yet had no motive or animus for false implications of the accused who was also related to them‑‑‑Confidence‑inspiring ocular testimony was supported by medical evidence as well as by the recoveries‑‑‑No misreading of evidence or any other illegality was pointed out in the impugned judgment‑‑‑Conviction and sentence of accused being unexceptional, leave to appeal was refused to him by the Supreme Court.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 9th September, 2002.

2003 S C M R 360

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

YAQUB KHAN‑‑‑Petitioner

Versus

MUHAMMAD FARID KHAN through L.Rs.‑‑‑Respondent

Civil Petition No.2513 of 2001, decided on 1st July, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 12‑7‑2001 passed in Civil Revision No. 15 of 1991).

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

‑‑‑‑S. 42‑‑‑Constitution of' Pakistan (1973), Art.185(3)‑‑‑Mutation‑‑‑Islamic Law‑‑‑Gift by husband in favour of his wife‑‑‑Petitioners being collateral o, donor challenged gift on the plea that donee was entitled to usufructs of land and was not full owner thereof‑‑‑Suit was dismissed by trial Court, which judgment was upheld up to High Court‑‑‑Validity‑‑‑Perusal of gift mutation would show that neither gift was conditional nor same related only to usufructs of land‑‑‑Entry in last column of mutation made by Patwari would show that donor had not intended to gift only usufructs of land for maintenance of his wife‑‑‑Order passed by Revenue Officer on mutation would unambiguously show that donor had made a complete gift and transferred proprietary rights in favour of donee through gift with possession Courts below had concurrently. held that gift was not only confined to extent of usufructs, but same also included corpus of property and donee was full owner thereof‑‑‑No misreading or non‑reading of evidence of legal infirmity was found in conclusion that donee was not the limited owner, but was full owner of land subject‑matter of mutation‑‑‑Supreme Court dismissed petition for leave to appeal in circumstances.

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 1st July, 2002.

2003 S C M R 362

[Supreme Court of Pakistan]

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

Mst. GHULAM JANAT and others‑‑‑Petitioners

Versus

GHULAM JANAT through Legal Heirs and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos. 163‑L and 164‑L of 2000, decided on 28th June, 2000.

(On appeal from the judgment dated 12‑11‑1999 of the Lahore High court passed in Civil Revisions Nos.402‑D and 388‑D of 1997).

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑-

‑‑‑‑Preamble, Ss.2, 2‑A [as added by Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983), Ss.3, 4, 5 & 6‑‑‑Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.3‑‑‑Inheritance as regards agricultural land, where parties are Muslims‑‑­ Muslim Personal Law, application of ‑‑‑Legistalive and historical background‑‑‑Implications of S.2‑A of West Pakistan Muslim Personal Law (Shariat) ,Application Act, 1962‑‑‑Exhaustive analysis‑‑‑Retrospective in operation.

Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 fol.

(b) West Pakistan Personal Law (Shariat) Application Act (V of 1962)‑‑‑--

‑‑‑‑S. 2‑A [as added by Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983)]‑‑Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Succession‑‑‑Section 2‑A of West Pakistan Personal Law (Shariat) Application Act, 1962‑‑‑Object‑‑‑Retrospective effect‑‑‑Last full male owner died in 1930‑‑‑Mutation of inheritance in favour of two sons excluding daughters under Customary Law‑‑‑Suit by daughter. (plaintiff) claiming to be in joint possession of suit‑land allegedly had received her share in produce till Kharif, .1991, and thereafter her brothers stopped paying her share in produce and then she came to know about such mutation‑‑­Receipt of share of produce by plaintiff from her second brother was admitted by her first brother in his written statement‑‑‑Other heirs also conceded plaintiff's claim‑‑‑Plea of second brother of plaintiff was that she was not entitled to any share in estate of her father‑‑‑Trial Court decreed the suit which decree was upheld by Appellate Court and High Court‑‑­Validity‑‑‑Contention of petitioners that plaintiff had filed suit due to divorce of her daughter by son of her second brother, if presumed to be so, then it might also equally be presumed that plaintiff and her other sister as stated by her first brother in written statement had all along been admitted to be co­ sharers in suit‑land under Islamic Law; and payment of her share of produce had been stopped after divorce to her daughter as relations between brother and sister had become strained‑‑‑Section 2‑A of West Pakistan Personal Law (Shariat) Application Act, 1962, was retrospective in its operation; and intention of its enactment was that inheritance would be deemed to have devolved on date of death of last male owner on all his heirs under Islamic Law, who would be deemed to have become joint owners‑‑‑Findings of High Court not suffering from any infirmity. Supreme Court dismissed the petitions and refused to grant leave to appeal in circumstances.

Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 fol.

Shahzad Shaukat, A.R. Shaukat, Advocates Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th June, 2000.

2003 S C M R 367

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Karamat Nazir Bhandari, JJ

SHAMSHAD ALI ‑‑‑Appellant

Versus

SENIOR POST MASTER (DELY), ISLAMABAD G.P.O., ISLAMABAD and 2 others‑‑‑Respondents

Civil Appeal No. 1016 of 1996, decided on 19th September, 2002.

(On appeal from judgment dated 26‑10‑1995, passed by the Federal service Tribunal, Islamabad in Appeal No.307(R) of 1995).

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑R. 5‑‑‑Compulsory retirement‑‑‑Departmental inquiry‑‑‑Professional irregularity‑‑‑Civil servant was working as clerk in Treasury Branch of General Post Office‑‑‑Envelopes and postage stamps worth lacs ‑ of rupees were drawn by the civil servant and the same were taken into account after nary weeks‑‑‑Show‑cause notice was issued to the civil servant and in reply o the notice, the civil servant admitted the delay and reason for the same was rush of work‑‑‑Having been dissatisfied with the reply given by the civil servant, the authorities imposed a penalty of compulsory ‑retirement‑‑‑ Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Plea raised by the civil servant was that he had not been afforded opportunity to rebut the evidence about the allegations made by the authorities and regular inquiry as provided under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973, was not conducted‑‑­Validity‑‑‑In view of overwhelming evidence against the civil servant and his own admission, Supreme Court declined the contention that no regular inquiry under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973, was conducted‑‑‑Service Tribunal had considered the available material very carefully and the judgment passed by the Service Tribunal was based on valid, and sound reasons and the law laid down by Supreme Court‑‑‑Competent Authority had already taken a lenient view in awarding punishment of compulsory retirement from service‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Appeal was dismissed.

M. Sadiq Warraich, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant.

Hafiz S.A. Rehman, Deputy Attorney‑General and Raja Abdul Ghafoor, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 19th September, 2002.

2003 S C M R 370

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C J, Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

PAKISTAN through Secretary Finance, Islamabad and 5 others‑‑‑Appellants

Versus

ARYAN PETRO CHEMICAL INDUSTRIES (PVT.) LTD., PESHAWAR and others‑‑‑Respondents

Civil Appeals Nos. 1176 to 1179 of 2001, decided on 24th July, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 28‑4‑2000 passed in Writ Petitions Nos. 1932 of 1997, 308 of 1998,. 1 933 of 1997 and 1953 of 1998).

(a) Manufacturing In Bond Rules, 1997‑‑

‑‑‑‑R.15(6)‑‑‑Customs Act (IV of 1969), S.219‑‑‑Central Excises Act (I of 1944), S.37‑‑‑Sales Tax Act (VII of 1990), S.50‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to examine the validity of R.15(6), Manufacturing In Bond Rules, 1997.

(b) Manufacturing In Bond Rules, 1997‑‑‑-

‑‑‑‑R.15(6)‑‑‑Customs Act (IV of 1969), S.219‑‑‑Central Excises Act (I of 1944), S.37‑‑‑Sales Tax Act (VII of 1990), S.50‑‑‑Imports and Exports (Control) Act (XXXIX of 1950), S.3‑‑‑Imports and Exports Order, 1997‑‑Import and Export Order, 1999‑‑‑Export Policy and Procedure Order, 2000‑‑‑Vires of R.15(6), Manufacturing In Bond Rule, 1997‑‑‑Rules 15(6) having been framed by the Central Board of Revenue beyond the scope of statutory provisions of S.219, Customs Act, 1969; S.37 of Central‑Excises Act, 1944 and S.50 of the Sales Tax Act, 1990 (under which provisions the Rules were framed) would be repugnant to the said statutes‑‑‑Notwithstanding the power of the Federal Government under S.3, Imports and Exports (Control) Act, 1950 to frame a policy by way of issuing an Export and Import Procedure Order, Central Board of Revenue was not competent to make any rule placing restriction on import and export of goods against any country by land route in exercise of its powers under S.219, Customs Act, 1969, S.50, Sales Tax Act, 1990 and S.37, Central Excises Act, 1944‑‑‑Principles.

The controversy in the present case relates to the legality of sub‑rule (6) of rule 15 of Manufacturing In Bond Rules of 1997 under which restriction has been imposed on the export of shopping bags and plastic sheets to any country by land route. Prior to the promulgation of above rule, the shopping bags and plastic sheets were being manufactured. and exported to Afghanistan by land route under Open Bonded Manufacturing Rules, 1989. The Central Board of Revenue, vide letter dated 1‑2‑1996 prohibited export of goods manufactured under Open Bonded Manufacturing Scheme to any country by land route. The imposition of ban by land route on export of the goods through an administrative order, was challenged before the Peshawar High Court, Peshawar, in a Constitutional petition and pending disposal of the said petition, Central Board of Revenue, by virtue of a notification added sub‑rule (7) in rule 13 of Open Bonded Manufacturing Rules, 1989 under which export of goods manufactured under the above said rules was prohibited to any country by land route. However, the Customs Authorities without contesting the writ petition on merits agreed for its disposal on the strength of an order passed by Supreme Court in a similar case and in consequence thereto, the notification dated 12‑3‑1996 became inoperative. Later, on publication of Import and Export Procedure Order, 1997 (Trade Policy 1997) by the Federal Government vide S.R.O. 552(I)/97 dated 28th July, 1997, the C.B.R. in exercise of its power under section 219 of the Customs Act, 1969, section 50 of the Sales Tax Act, 1990 and section 37 of the Central Excises Act, 1944 framed the Manufacturing In Bond Rules, 1997.

The pivotal question for determination in the present case would be regarding the power of C.B.R. to place restriction on the export of goods manufactured under Manufacturing In Bond Rules, 1997 to any country by land route in exercise of its rule making power under section 219 of the Customs Act, 1969, section 50 of Sales Tax Act, 1990 and section 37 of Central Excises Act, 1944.

The Central Board of Revenue is authorized to frame rules under section 219 of the Customs Act, 1969, section 50 of Sales Tax Act, 1990 and section 37 of Central Excises Act, 1944 to give effect to and carry out the purpose of above statutes. The Manufacturing In Bond Rules, 1997 framed by the C.B.R. have been made applicable to the clearance of imported goods as specified in‑the First Schedule to the Customs Act (IV of 1969), Excisable goods as set forth in the First Schedule to the Central Excises Act (I of 1944), and goods/supplies chargeable to sales tax as specified in the Sales Tax Act, 1990, without payment of customs‑duty, central excise duty and sales tax, as the case may be, for the manufacture of goods primarily meant for export. The prohibition contained on the export of goods was challenged as void on the ground that sub‑rule (6) of rule 15 was ultra vires of the statutes under which it had been framed as the said statutes would not govern import and export of goods.

The plain reading of provisions section 219, Customs Act, 1969, section 50 of Sales Tax Act, 1990 and section 37, Central Excises Act, 1944 would show that the aim of giving the rule making power to C.B.R. is to carry out the purpose of the above statutes through the subordinate legislation. The Federal Government in exercise of powers under section 3 of Imports and Exports (Control) Act (XXXIX of 1950), may by an order published in the official Gazette prohibit, restrict or otherwise control the import or export of goods of any specified description and regulate the same through licence system and sub‑section (3) of section 3 of the said Act, provides that section 16 of the Customs Act, 1969 shall be given effect to in respect of goods, the import and export of which has been prohibited or restricted. Thus the Federal Government has the sole authority to regulate import and export of goods and impose conditions for grant of import and export licence, issue orders for carrying out the purpose of Imports and Exports (Control) Act, 1950 and make laws for the import and export of goods across the border whereas the function of the C.B.R. is to give effect to Customs Act, 1969, Sales Tax Act, 1990 and the Central Excises Act, 1944 in the light of the policy of the Federal Government as contemplated by the ,Imports and Exports (Control) Act, 1950. There is clear distinction between the powers of the Federal Government under Imports and Exports (Control) Act, 1950 and the powers of the C.B.R. under Customs Act, 1969, Sales Tax Act, 1990 and Central Excises Act, 1944. The framing of the policy relating to the import and export of goods with or without any restriction is the exclusive function of the Federal Government and the Central Board of Revenue, subservient to the policies of Federal Government, may frame rules under the above referred statutes subject to the provisions of section 16 of Customs Act under which it is the prerogative of the Federal Government to prohibit or restrict the bringing into or taking out of Pakistan any goods by any route including the goods enumerated in 3rd Schedule to the Customs Act, 1969. Under section 9 of the Customs Act, 1969 the C.B.R. can declare the places as customs ports, customs airport and land customs station for clearance of the goods to be imported or exported but is not empowered under said section or any other provision of law to restrict or prohibit the export or import of the goods through land route.

The combined reading of sections 9 and 16, Customs Act, 1969 with section 3 of Imports and Exports (Control) Act, 1950 would show that it is the exclusive jurisdiction of the Federal Government to prohibit the export and import of goods by any route and the C.B.R. may declare the places as customs ports, customs air ports and land customs stations for the clearance of goods to be‑exported and imported.

The perusal of Import and Export Orders, 1997 and 1999 would show that Federal Government placed no prohibition on the export of commodities produced and Manufactured in Pakistan by any route. However, under Export Policy and Procedure Order, 2000, the export of goods manufactured in manufacturing bond was restricted via land route to Afghanistan. It is clear from the Import and Export Orders issued by the Federal Government that the C.B.R. cannot extend its authority of framing rules to carry out the purpose of the said statutes to restrict the export by land route. A statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order. to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statute if are inconsistent with the provisions of the statute and defeat the intention of Legislatures expressed in the main statute, same shall be invalid. The rule making Authority cannot clothe itself with power which is not given to it under the statutes and thus the rules made under a statute, neither enlarge the scope of Act nor can go beyond the Act ‑ and ‑ must not be in conflict with the provisions of statute or repugnant to any other law in force.

The Manufacturing In Bond Rules, 1997 were framed by the C.B.R. to give effect to Customs Act, 1969, Sales Tax Act, 1990 and Central Excises Act, 1944 in respect of the matters specified in the 1st Schedule to the Customs Act, 1969 and excisable goods as set out in 1st Schedule of Central Excises Act, 1944 and the goods chargeable to sales tax as specified in Sales Tax Act, 1990. Under the above rules, the Customs Authorities are empowered to issue licence for manufacturing of goods and regulate all ancillary matters. The licence to a manufacturer under the said rule is issued by the Collector of Customs and in case of breach of any condition of the licence, the Collector of Customs is empowered to suspend and cancel the licence. Under rule 15(6), the restriction placed on the export of goods by the land route to any country is not in consonance with the Export Policy, 1997‑98 and 1999 of Federal Government made under Imports and Exports (Control) Act, 1950 and would also offend the statutory provisions under which the Manufacturing In Bond Rules, 1997 have been framed. There is a distinction between the powers of deciding the places as customs stations and routes under section 9 of the Customs Act, 1969 and placing restriction on export of goods by land route or by any other route and thus the goods, export of which is permissible can be exported by any custom route and station if the Federal Government has placed no such restriction on the export of such goods by a route under Imports and Export (Control) Act, 1950. The net result drawn is that rule 15(6) of the rules in question having been framed beyond the scope of statutory provisions, would be repugnant to the statutes and notwithstanding the power of Federal Government under section 3 of Imports and Exports (Control) Act, 1950 to frame a policy by way of issuing an Export and Import Procedure Order, the C.B.R. is not competent to make any rule placing restriction on import and export of goods to any country by land route in exercise of its powers under section 219 of the Customs Act, 1969, section 50 of the Sales Tax Act, 1990 and section 37 of Central Excises Act, 1944. The Import and Export Policy and Procedure Order of the Federal Government placing such restriction if any, being not under challenge before the Supreme Court in the present appeals, Court, without entering into the discussion regarding the authority of Federal Government in this behalf held that rule 15(6) of Manufacturing In Bond Rules, 1997 was ultra vires of the statutes.

(c) Interpretation of statutes‑---

-----Statutory rules‑‑‑Scope‑‑‑Statutory rules cannot enlarge the scope of the section under which the same has been framed‑‑‑Principles.

A statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid. The rule making authority cannot clothe itself with power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force.

Tariq Javed, Advocate Supreme Court and M. A. Qayyum Mazhar, Advocate‑on‑Record for Appellants.

S.M. Zafar, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 24th July, 2002.

2003 S C M R 390

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ, Munir A. Sheikh, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Qazi Muhammad Farooq; JJ

JAVED JABBAR and others‑‑=Petitioners

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petitions Nos. 38 of 2002, 2, 3, 4; 7, 8, 11, 12, 13, 14, 18, 19, 20, 23 and 24 of 2003, decided on 10th February, 2003.

Conduct of General Elections Order [Chief Executive's Order No.7 of 2002]‑‑

‑‑‑‑Art.8‑AA [as inserted by Conduct of General Elections (Eighth Amendment) Order [Chief Executive's Order No.34 of 2002], Art.2‑‑­Constitution of Pakistan (1973), Arts. 184(3) & 25‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court‑‑­Disqualification from being a member of the Senate ‑‑‑Vires of Art.8‑AA, Conduct of General. Elections Order, 2002‑‑‑Held, Article 8‑AA, Conduct of General Elections Order, 2002 is discriminatory in nature and as such violative of Art.25 of the Constitution‑‑‑Disqualification attributed to defeat in consequence of lawful act of contesting election of the National and Provincial Assemblies should have been provided in the original Conduct of General Elections Order, 2002 itself, so that, the affected persons should have got an opportunity to avoid suffering from such disqualification.

M.A. Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate‑on Record for Petitioner (in Constitutional Petition No.38 of 2002).

Syed Hamid Ali Shah, Advocate Supreme Court for Petitioner (in Constitutional Petition No.2 of 2003).

Syed Hamid Ali Shah, Advocate Supreme Court for Petitioner (in Constitutional Petition No.3 of 2003).

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Constitutional Petition No.4 of 2003).

Sardar Liaquat Ali, Advocate Supreme Court and Anwar H, Mir, Advocate‑on‑Record for Petitioner (in Constitutional Petition No.7 of 2003).

Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate on Record for Petitioner (in Constitutional Petition No.8 of 2003).

S. M. Abdul Wahab, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner (in Constitutional Petition No. II of 2003).

Petitioner in person (in Constitutional Petition No. 12 of 2003).

Muhammad Asif, Advocate Supreme Court for Petitioners. (in Constitutional Petition No. 13 of 2003).

M. Bilal, Senior Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Petitioner (in Constitutional Petition No.14 of 2003).

Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate on Record for Petitioner (in Constitutional Petition No. 18 of 2003).

Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate on Record for Petitioner (in Constitutional Petition No. 19 of 2003).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners (in Constitutional Petition No.20 of 2003).

S. Iftikhar H. Gillani, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners (in Constitutional Petition No.23 of 2003).

Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court (in Constitutional Petition No.24 of 2003).

Makhdoom Ali Khan, Attorney‑General for Pakistan assisted by Shahid Karim and Khurram M. Hashmi, Advocate, High Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Shabbar Raza Rizvi, A.‑G. Punjab and Jehanzeb Rahi, A.‑G., N.‑W.F.P. (on Court's Notice).

Dates of hearing: 6th and 7th February, 2003.

2003 S C M R 392

[Supreme Court of Pakistan]

Present: Hamid All Mina, Tanvir Ahmed Khan and Faqir Mahammad Khokhar, JJ

MUHAMMAD ASADULLAH SHAIKH ‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN and others‑‑‑‑Respondents

Civil Petition for Leave to Appeal No.691‑K of 2000, decided on 22nd November, 2002.

(On appeal from the judgment dated 17‑10‑2000 of the Federal Service Tribunal, Islamabad, passed in Service Appeal No. 72(K) of 1998).

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R.5(1)(iii)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service on the charges of misconduct and corruption and having assumed a style of living beyond his ostensible means of income by the civil servant‑‑­Non‑conducting of enquiry and non‑issuance of second show‑cause notice‑‑‑ Effect‑‑‑Civil servant secured ex‑Pakistan leave for 56 days due to his heart ailment, which was granted to him, his young son aged 16 years was also suffering from B‑Thalassemia Major and was under treatment in Pakistan and doctor treating him in Pakistan recommended his bone marrow transplant from abroad‑‑‑Civil servant while abroad regarding his own heart ailment arranged for the treatment of his son there and came back to Pakistan and applied for extension of his leave for further 120 days on the ground of bone marrow transplant of his ailing son abroad and his leave was extended accordingly‑‑‑Civil servant left Pakistan and got his son admitted in a hospital abroad for treatment ‑‑‑Unexpired leave of the civil servant was abruptly cancelled with immediate effect and Competent Authority through a letter informed the civil servant that his request for extension in ex-Pakistan leave was declined and he was placed under suspension and, therefore, he was served with a show‑cause notice by the Competent Authority under Government Servants (Efficiency and Discipline) Rules, 1973 on specific charges‑‑‑Authorized Officer after applying his independent mind decided that no formal enquiry was needed in the facts and circumstances of the case and approaching the matter in term of R.5(1)(iii), Government Servants (Efficiency and Discipline) Rules, 1973, civil servant was specifically informed about the charges in detail and he was also informed the proposed penalty to be imposed on him in case the charges leveled against him were proved and he was further informed that while replying to the notice he should intimate whether he wanted to be heard in person‑‑‑Civil servant while abroad submitted his detailed reply and towards the end of the same he also prayed for an opportunity of being heard in person enabling him to clarify the alleged charges‑‑‑Authorized Officer (Establishment Secretary) again asked the civil servant by a letter to avail the opportunity of personal hearing‑‑‑Civil servant did not deny the receipt of all these letters from the Authorized Officer but all the times deferred his appearance‑‑‑Same behaviour was also shown when his appeal before Service Tribunal was pending and was finally decided under R.19(1) of Service Tribunals (Procedure) Rules, 1974 and was dismissed‑‑‑Supreme Court had also provided the civil servant opportunity for appearance time and again but he did not avail the same and sought exemption from personal appearance‑‑­Held, case of the civil servant having been dealt with under R.5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, the question as to whether an enquiry was needed or not depended upon the nature of charges‑‑‑Charges against the civil servant were apparent from the documents taken into consideration by the Authorized Officer and legal requirements were fully complied with by the Authorized Officer and the civil servant was in full knowledge of the case against him‑‑‑When the matter was dealt with under R.5(l)(iii) of the Rules as no enquiry was conducted and the show-­cause notice earlier issued to the civil servant was all pervasive, as such no second show‑cause notice was required in the present case‑‑‑Apart from the charge of misappropriating crores of rupees there was an allegation against the civil servant of having assumed a style of living beyond his ostensible means of income and his reply in that regard was also deficient‑‑‑Civil servant, for the last more than six years, was living abroad and had not visited Pakistan to answer the charges against him‑‑‑Such‑like conduct on his part was quite unbecoming of a civil servant and could not be approved on any ground‑‑‑Petition for leave to appeal of civil servant against the order of the Service Tribunal was dismissed in circumstances.

Inayatullah Khan v. The Provincial Government, N.‑W.F.P., Peshawar 1985 SCMR 1747; Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 SCMR 1543; Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868 and The Deputy Inspector­General of Police and another v. Muhammad Arif 1989 SCMR 852 distinguished.

M.M. Aqil, Advocate Supreme Court for Petitioner.

Hafiz S.A. Rehman, Deputy Attorney‑General for Respondents.

Date of hearing: 4th October, 2002.

2003 S C M R 400

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD JAMIL AKHTAR and another‑‑‑Petitioners

versus

APPELLATE AUTHORITY, DISTRICT JUDGE, RAWALPINDI and 4 others‑‑‑Respondents

Civil Appeal No. 1256 of 2001, decided on 17th April, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 18‑6‑2001 passed in Writ Petition 2063 of 2001).

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 20‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Withdrawal of nomination papers‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether any embargo could be placed upon withdrawal of nomination papers before scrutiny, when the law was otherwise.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 2(xxvi)(xxvii), 18 & 20‑‑‑"Validly nominated candidate" and "a candidate"‑‑‑Distinction‑‑‑Procedure provided under R. 20 of the Punjab Local Government Elections Rules, 2000 for withdrawal of nomination papers‑‑‑Applicability‑‑‑Clear distinction between a "validly nominated candidate" and "a candidate" ‑‑‑Rule 20 of the Rules applicable only for withdrawal of nomination papers by a validly nominated candidate‑‑‑Such provisions cannot be pressed into service and made applicable mutatis mutandis to 'a candidate' for purpose of withdrawal of his nomination papers before scrutiny.

(c) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 2(xxvii), 16(3)(6)(7) & 18‑‑‑Punjab Local Government Elections Ordinance (V of 2000), S.16(1)‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Election of Nazim and Naib‑Nazim of Union Council‑‑­Appellants as joint candidates filed nomination papers with three different panels‑‑‑Withdrawal of nomination papers in two panels before scrutiny‑‑­Objection of respondents was that nomination papers in 3rd panel would be void by virtue of R.16(7) of the Rules‑‑‑Returning Officer turned down such objection, but District Returning Officer rejected nomination papers of appellants‑‑‑High Court dismissed Constitutional petition filed by appellants‑‑‑Validity‑‑‑No restriction existed in the Rules on filing more than one nomination papers in different panels by a candidate in same electoral ward nor he was debarred from withdrawing nomination papers before date of scrutiny‑‑‑Choice of candidate to withdraw his nomination papers from any panel at any time before scrutiny, if he had filed more than one nomination papers‑‑‑If no such withdrawal was made before scrutiny, his candidature would be determined on the basis of nomination papers first received by Returning Officer and all other remaining nomination papers would be void‑‑‑Nomination papers withdrawn before scrutiny would be deemed to have not been filed and could not be considered for declaring a person either to be a validly nominated candidate in election or for his candidature‑‑‑Withdrawal of nomination papers in two panels by appellants before scrutiny could not be legally deemed to be pending for scrutiny‑‑­Resultantly, candidature of appellants would be determinable on the basis of nomination papers available with Returning Officer at the time of scrutiny‑‑­District Returning Officer and High Court having failed to properly attend to the proposition in the light of Rules had been misguided in rejecting nomination papers of appellants--‑Supreme Court allowed the appeal, set aside impugned judgments and declared appellants as validly nominated candidates.

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

‑‑‑‑Arts. 185(3)‑‑‑Leave to appeal having been granted by the Supreme Court only to consider a limited question, no other ground could be allowed to be taken by either party at final stage.

Malik Rab Nawaz Noon, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and M.S Khattak, Advocate‑on‑Record for Respondents Nos. 3 to 5.

Date of hearing: 17th April, 2002.

2003 S C M R 407

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

ADIL BASHIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.296‑L of 2002, decided on 28th May, 2002.

(On appeal from the order dated 21‑3‑2002 passed by Lahore High Court, Multan Bench, Multan, in Criminal Miscellaneous No.2 of 2002 in Criminal Appeal No.933 of 2001).

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

‑‑‑‑S. 426‑‑‑Suspension of sentence‑‑‑Appreciation of evidence‑‑‑While dilating upon and deciding an application under S. 426, Cr.P.C. appraisal of evidence in depth is neither warranted nor desirable‑‑‑Court in this regard should confine itself to the judgment assailed before it giving due consideration and weight to the reasonable and legal views expressed by the Trial Court, but all attempts should be made neither to reappraise the evidence nor to enter into the merits of the case.

Petitions Nos.86‑L to 89‑L of 2002; Bashir Ahmad v. Zulfiqar PLD 1992 SC 463; Muhammad Ashraf v. The State 1971 SCMR 183; Noor Abdullah and another v. The State 1981 SCMR 859 and Jamshed Azam v. The State 1990 SCMR 1393 ref.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suspension of sentence‑‑‑High Court had dismissed the petition of accused for suspension of his sentence on the ground that the grounds urged in support of the petition required. deeper appreciation of evidence which could only be done at the time of hearing the appeal‑‑‑High Court had exercised its discretion judiciously and in accordance with the settled norms of justice which warranted no interference‑‑‑Leave to appeal was declined to accused by Supreme Court in circumstances.

Petitions Nos.86‑L to 89‑L of 2002; Bashir Ahmad v. Zulfiqar PLD 1992 SC 463; Muhammad Ashraf v. The State 1971 SCMR 183; Noor Abdullah and another v. The State 1981 SCMR 859 and Jamshed Azam v. The State 1990 SCMR 1393 ref.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 21st May, 2002.

2003 SCMR 410

[Supreme Court of Pakistan]

Present: Javed Iqhal and Karamat Nazir Bhandari, JJ

DIRECTOR‑GENERAL, ORDNANCE SERVICES, GENERAL HEADQUARTERS, RAWALPINDI ‑‑‑Appellant

versus

MUHAMMAD ABDUL LATIF‑‑‑Respondent

Civil Appeal No.628 of 1998, decided on 14th November, 2002.

(On appeal from the judgment dated 17‑7‑1996 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 123‑R of 1996).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 212(3)‑‑‑Finance Division DM No. F.1(1)‑Imp‑1/77 dated 28‑4‑1977‑‑‑Withholding of increments of civil servant‑‑‑Five advance increments were allowed to the civil servant in terms of letter of appointment issued by the Authority‑‑‑Department, on the objection raised by the Audit Officer, stopped the said increments and before the implementation of appointment letter civil servant was informed that five advance increments could not be given because the same had not been allowed in accordance with the rules and general policy of the Government‑‑‑Civil servant challenged. such order of the Authority before Service Tribunal which was accepted in his favour‑‑‑Validity‑‑‑Petitioner (Department) sought leave to appeal against the order of Service Tribunal on the ground that the principle of locus poenitentiae was not applicable in the case of civil servant inasmuch as the said principle could not be pressed in service for overriding a law; that the Service Tribunal had wrongly construed that it was the Audit Officer, who ordered the stoppage of increments, but in fact the same had been allowed in violation of the Rules and the policy framed by the Government; that it was obligatory on the Service Tribunal to consider as to whether the appeal tiled by the civil servant was not barred by time because his representation against the stoppage of the increments had been rejected way back in 1988 and, therefore, the appeal filed after eight years against the said order was not maintainable; that even the representation made against the stoppage of increments was barred by time because the increments were stopped in 1982 while the representation was made in 1988‑‑‑Leave to appeal was granted by the Supreme Court to consider the contentions raised in support of the petition.

(b) Civil service‑‑‑

‑‑‑‑ Advance increments, withholding of‑‑‑Locus poenitentiae, principle of‑‑­Applicability‑‑‑Five advance increments were allowed to the civil servant in terms of letter of appointment issued by the Authority‑‑‑Decision regarding stoppage of five advance increments was made by the Competent Authority which was communicated to the appointee after the issuance of appointment letter‑‑‑Payment of such five advance increments was never made to the civil servant due to its stoppage/cancellation on account of Government Policy and relevant Rules‑‑‑Contention of the civil servant was that five advance increments were included in the pay bills and, therefore, a legal right had accrued in his favour which could not have been infringed for the reason that same was never incorporated in the salary slip and preparation of bills simpliciter by the civil servant himself would not amount to creation of a legal right‑ r Validity‑‑‑Held, a legal right was such right which was recognizable and enforceable at law and on the basis of pay bills duly prepared by the civil servant himself it could not be inferred that any legal right had accrued in his favour‑‑‑Condition concerning five advance increments contained in the appointment letter in fact was never implemented‑‑‑Principle of locus poenitentiae hardly rendered any assistance to the case of civil servant in circumstances‑‑‑Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman‑ul‑Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Adreshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

(c) Locus poenitentiae, principle of‑‑‑

‑‑‑‑Applicability‑‑‑ Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman‑ul‑Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Adreshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer‑in‑Chief Branch v. Jalaluddin PLD 19.92 SC 207 ref.

Raja Muhammad Irshad, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Ibadur Rehman Lodhi, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 14th November, 2002.

2003 S C M R 416

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

HAMID‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.342 of 2001, decided on 11th September, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 15‑5‑2001 passed in Criminal Appeal No. 149 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused by Supreme Court, only to consider the question of quantum of sentence in view of the fact that on the basis of same set of evidence remaining co‑accused, particularly the one who was equally stated to have fired shots at the deceased, had been acquitted of the charge.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302(b)‑‑‑Sentence, reduction in‑‑‑Contention for reduction of sentence on the ground that the husband of the deceased had compounded the offence with the accused though other legal heirs had not joined the compromise, was least impressive as the conviction of the accused was recorded under Tazir in terms of S. 302(b), P.P.C. and not for Qatl‑i‑Amd liable to Qisas within the contemplation of S. 302(a) P.P.C. and the witnesses examined at the trial were not subjected to Tazkiyah‑al‑Shahood; secondly, the benefit of acquittal of co‑accused could not be extended to the accused as leave to appeal was not granted to reappraise the merits of the evidence‑‑‑Acquittal of co‑accused for valid reasons did not furnish a ground for mitigation of sentence of accused being entirely a different issue‑‑‑Accused having been found solely responsible for the callous murder of the deceased, he was not entitled to any leniency in the matter of sentence‑‑‑Appeal was dismissed accordingly.

Criminal Petition for Leave to Appeal No.776 of 2001 distinguished.

M. A. Zafar, Advocate Supreme Court for.Petitioner.

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

Date of hearing: 11th September, 2002.

2003 SCMR 419

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

ABDUL RAZZAQ alia ZAKA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No. 141 of 2001, decided on 10th September, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 17‑8‑2001 passed in Criminal Appeal 177 of 1998 and Murder Reference 452 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Omission of the names of witnesses in the F.I.R. and medical report would not dislodge their deposition an oath that they had accompanied the deceased to the hospital‑‑­Occurrence, according to the evidence on record, did not take place in dark hours of the night‑‑‑Prompt recording of the statement of the complainant in the hospital by the police officer had excluded the possibility of any deliberation or substitution of the accused for the unknown culprit‑‑‑ Complainant party could not be expected to have involved an innocent person in a case of capital punishment at the instance of his opponent‑‑­Presence of eye‑witnesses at the scene of incident was natural‑‑‑No enmity existed between the parties‑‑‑Motive for the occurrence and premeditation on the part of accused were established on record by direct evidence‑‑‑No mitigating circumstance was available in favour of accused for lesser punishment‑‑‑Leave to appeal was refused to accused in circumstances.

Ch.Ghulam Ahmed, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 10th September, 2002.

2003 S C M R 423

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MIR AMAN SHAH‑‑‑Petitioner

versus

SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD and others‑‑‑Respondents

Civil Petition No.3021 of 2001, decided on 21st October, 2002.

(On appeal from the judgment dated 9‑8‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.321(R) of 2000).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Office Memorandum of Finance Division (Regulation Wing‑I), No.F.I(82)‑8.3/85 dated 1‑1‑1986, cls. (iii) & (vi)‑‑‑Office Memorandum of (Finance Division Regulation Wing) No.F.7(1)‑Imp‑1/90 Vol II, dated 7‑2‑1991‑‑‑Move‑over, grant of‑‑‑Civil servant having earned only one good report during the relevant period of five years and his other reports being just average, he was rightly denied move‑over from B‑18 to B‑19.

Rana Manzoor‑ul‑Hassan v. Secretary, Ministry of Education, Islamabad 1995 SCMR 8 fol.

Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi PLD 1992 SC 144 and Federation of Pakistan v. Muhammad Qaisar Hayat Khan 1994 SCMR 544 distinguished.

Petitioner in person.

Sardar Muhammad Aslam, Deputy Attorney‑General for Respondents.

Date of hearing: 21st October, 2002.

2003 S C M R 426

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

TAHIR ABBAS ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 184‑L of 2002, decided on 1st April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑-‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.392/395/412‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑‑Complainant had involved the accused in the case in his supplementary statement and not in the F.I.R., although the accused was living in the same locality at a distance of about few yards and the parties were known to each other‑‑‑No explanation in this regard was available‑‑‑Case of accused, therefore, was of further inquiry‑‑‑Petition for leave to appeal was converted into appeal and allowed in circumstances and the accused was admitted to bail accordingly.

Muhammad Saeed Ensari, Advocate Supreme Court and Walayat Umer, Advocate‑on‑Record for Petitioner.

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

Date of hearing: 1st April, 2002.

2003 S C M R 427

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ

MLIHAMMAD KHAN‑ ‑‑Petitioner

versus

MUHAMMAD BASHIR and others‑‑‑Respondents

Criminal Petition No.23‑L of 2002, decided on 10th July, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 20‑11‑2001 in Criminal Appeal No.412 of 1996).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑­Genesis. of the occurrence was not clear and it was not known as to what had happened at the spot and what had actually transpired between the parties immediately prior to the said occurrence‑‑‑Impugned view taken by High Court for reducing the sentence of death of accused to imprisonment for life was neither whimsical or arbitrary nor . the same was based on misreading or non‑reading of evidence available on record‑‑‑Leave to appeal was refused to the complainant by the Supreme Court in circumstances.

Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th July, 2002.

2003 S C M R 429

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

Mst. ZEESHAN NADEEM‑‑‑Petitioner

versus

THE LYCEUM through Mst. Azra Umar ‑‑‑Respondent

Civil Petition No. 548/L of 2002, decided on 27th February, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 21‑1‑2002 passed in Civil Revision No.2410 of 2001).

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

‑‑‑‑S. 115 & O. XXXIX, RrA, 2‑‑‑Temporary injunction‑‑‑Application for grant of temporary injunction made in appeal was dismissed by Appellate Court‑‑‑Non‑filing of revision petition against such order‑‑‑Effect‑‑‑.Such order had become final.

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

‑‑‑‑O. XXXIX, Rr. 1, 2 & S.115‑‑‑Specific Relief Act (I of 1877), S.54‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Temporary injunction‑‑‑Suit for permanent Injunction‑‑‑Agreement regarding franchise of "The Lahore Lyceum" between parties‑‑‑Plaintiff established a branch of school in such name‑‑‑Prayer in suit was that defendant (The Lyceum) should be restrained from interfering in the business of plaintiff of running the school in such name‑‑‑Subsequent suit for permanent injunction by defendant (The Lyceum) against present plaintiff for restraining her from using the name of "The Lahore Lyceum"‑‑‑Applications for issuance of temporary injunction were made in both the suits‑‑‑Trial Court till final decision of case allowed both the parties to run schools in the name with which they were running at the date of institution of both the suits‑‑‑Appellate Court accepted appeal filed by defendant (The Lyceum) and dismissed plaintiff's application for temporary injunction, but accepted defendant's application by issuing temporary injunction against plaintiff‑‑‑Plaintiff did not file revision petition against dismissal of her application for temporary injunction, but filed revision petition against order, whereby application of defendant (The Lyceum) for temporary injunction stood accepted and plaintiff was restrained from using the name of "The Lyceum" in relation to her school, but was found entitled to run business in any other name‑‑‑Validity‑‑‑Plaintiff had admittedly been allowed under the agreement to run the school in the name of "The Lahore Lyceum" with overall supervision and right of inspection by other party to agreement‑,‑Such fact made clear that name of "The Lahore Lyceum" was in use of defendant before such agreement was entered for running the school in such name‑‑‑Real dispute between the parties was about use of word "Lyceum", might be that before such word, the words "The Lahore" had also been added‑‑‑Since plaintiff herself had terminated such contract, defendant was entitled to obj,,‑ct to the use of name of "Lyceum" in relation to school run by her‑‑‑No revision petition had been filed by plaintiff against order of dismissal of her application for temporary injunction by Appellate Court, which order had become final‑‑‑Plaintiff had not prayed in her suit to restrain defendant (The Lyceum) from using the name of Lyceum in relation to schools being run by them‑‑‑Appellate Court and High Court had not committed any illegality in passing temporary injunction in favour of defendant (The Lyceum) in its suit for having satisfied the Courts about co­existence of all the three ingredients for issuance of temporary injunction i.e. existence of prima facie case, balance of convenience and irreparable loss‑‑­Supreme Court dismissed petition for grant of leave to appeal in circumstances.

Mian Qurban Saidq Ikram, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Ijaz Ali Sabazwari, Mirza Masoodur Rehman, Advocates Supreme Court for Respondent. (on Notice).

Date of hearing: 27th February, 2002.

2003 SCMR 436

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD NAZIR and another‑‑‑Appellants

versus

QAISER ALI KHAN and 4 others‑‑‑Respondents

Civil Appeal No.328 of 1999, decided on 18th April, 2002.

(On appeal from the. judgment of Lahore High Court, Lahore, dated 3‑3‑1999 passed in C.R. 1253 of 1998).

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

‑‑‑‑S. 148 & O. XXI, R.10‑‑‑Specific Relief Act (I of 1877), S.12‑‑­Constitution of Pakistan (1973), Art.‑185(2) ‑‑‑Decree for specific performance of agreement to sell without fixing time for deposit of remaining sale price‑‑‑Appellate Court dismissed appeal against decree, but did not fix such time‑‑‑Executing Court permitted decree‑holders to deposit remaining sale price, which they deposited with a shortfall of Rs.100 under mistake‑‑‑Decree‑holders on coming to know about such mistake made application for permission to deposit deficient amount, but same was dismissed by Executing Court with observation that they had lost right of execution of decree due to their own conduct‑‑‑High Court accepted revision petition filed by decree‑holders‑‑‑Validity‑‑‑Trial Court or Appellate Court had not fixed time for deposit of remaining sale price, thus, non‑deposit thereof till decision of first appeal would have no legal consequences‑‑‑No condition of dismissal of suit for non‑deposit or short deposit of remaining sale price within a specified time had been attached by Trial Court in original decree or by Appellate Court in appeal against decree‑‑‑Executing Court in such circumstances would be competent to grant time for short deposit, if any and would not allow to defeat the fruit of decree for such reason‑‑­Default of short deposit of Rs.100 was not wilful or in violation of any order of the Court‑‑‑Grant of permission to deposit the less amount of Rs.100 by enlarging the time under 5.148, C.P.C., by Executing Court would be the proper exercise of discretion‑‑‑Executing Court had failed to exercise its discretion in proper manner‑‑‑Supreme Court dismissed petition for leave to appeal in circumstances.

Shah Wali v. Ghulam Din PLD 1966 SC 983; Shah Muhammad Khan v. Allah Diwaya PLD 1961 Lah. 743; Muhammad Afzal v. Fazal‑ul­Haq PLD 1971 SC 162; Hadayat Ullah v. Murad Ali, PLD 1972 SC 69 and Said Alain Shah v. Jana PLD 1991 SC 360 ref.

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

‑‑‑‑Ss. 2(2) & 48‑‑‑Limitation Act (IX of 1908), Art. 181‑‑‑Decree‑‑­Pendency of appeal or revision against decree‑‑‑Starting point of limitation for execution of such decree‑‑‑Different circumstances discussed.

Appeal being continuation of suit decree, in suit would only be finalised on the disposal of appeal as the decree of Court of first instance would merge into decree of Appellate Court, which alone could be executed. However, till the time, appeal or revision was riot filed or such proceedings were pending and no stay order was issued, the decree would remain capable of execution, but if the decree was under challenge in pending appeal or revision and was not executable, the decree ultimately passed by the Court of last instance in appeal or revision as the case may be, would be executed irrespective of the fact that decree of the lower Court was modified, affirmed or reversed. Thus, if decree was under challenge in appeal and could. not be executed, the limitation for filing an execution petition would not run against the decree‑holder pending disposal of appeal.

If no appeal was filed against original decree, the decree would attain finality on expiry of period of limitation provided for filing an appeal and in such a case, the execution petition, if filed beyond the prescribed period, would be treated as barred by time, but pending disposal of appeal, the decree would not be deemed to have attained finality, therefore, non‑filing of execution in such a case within prescribed period under Article 181 of Limitation Act, 1908, from the date of passing of decree by trial Court would not be barred by time and the period of limitation in such circumstances would be extended.

Decree in present case was finalized on dismissal of regular first appeal by High Court on 15‑10‑1997 and pending disposal of appeal in which status quo order was passed, decree could not be executed, therefore, execution petition was filed on 2‑3‑1998, which was not time‑barred under Article 181 of Limitation Act, 1908. In present case, decree‑holder filed execution petition after disposal of appeal and if the date of decree by trial Court was to be taken as starting point, the appeal would be barred by time, but since the decree of lower Court was under challenge and had not yet attained finality, therefore, the limitation for the purpose of filing execution petition would be enlarged.

The objection of appellants that execution petition having not been filed within three years from the date of decree, therefore, notwithstanding the pendency of appeal, it would become time‑barred, has no substance.

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

‑‑‑‑S. 148 & 151‑‑‑Enlargement of time for making good deficiency in decretal amount‑‑‑Discretion of Executing Court‑‑‑Scope‑‑‑Where decree­ holder under direction of Court deposited sale price with a small deficiency due to bona fide mistake, Executing Court could exercise power under 5.148, read with S.151, C.P.C., for grant of further time to deposit short amount‑‑‑While making good deficiency In decretal amount, principles of equity and expediency could be validly attracted in extending time in exercise of discretionary powers under S.148, C.P.C., in the interest of justice.

Naeem Sarwar, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellants.

Malik Abdul Majid Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Date of hearing: 18th April, 2002.

2003 S C M R 444

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhamrnad Raza Khan and Falak Sher, JJ

GOVERNMENT OF BALOCHI$TAN through Secretary, S&GAD, Quetta ‑‑‑Appellant

versus

MARJAN KHAN‑‑‑Respondent

Civil Appeal No. 1572 of 2001, decided on 11th November, 2002.

(On appeal from the judgment dated 21‑12‑2000 passed by the Service Tribunal, Balochistan, Quetta in S.A. No. 6 of 2002).

(a) Balochistan Service Tribunals Act (V of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Provision of S.4, Balochistan Service Tribunals Act, 1974 conferred exclusive jurisdiction on the Service Tribunal pertaining to terms and conditions of a civil servant.

Jamal Khan Jaffar v. Government of Balochistan 1998 SCMR 1302; Ghulam Dastgir v. S.M.A. Kazmi PLD 1970 Lah. 33 and Muhammad Saeed Khan v. I.‑G. of Pakistan Railways Police and another 1983 PLC 307 ref.

(b) Civil service‑‑‑

‑‑‑‑ Age of civil servant‑‑-Essential term of conditions of service‑‑‑Date of birth of a civil servant is the sheet anchor for determining his superannuation on which date he is to bid farewell to the Department thus it is pivotal and most crucial and essential term and condition of his service.

(c) Civil service‑‑‑

‑‑‑‑Age of civil servant‑‑‑Proof‑‑‑Civil servant, in the present case, had rendered rational explanation as to insertion of his date of birth (15‑2‑1942) initially at the time of admission to class one of the local Primary School which got corrected well in time still he was serving as EAC before induction into provincial civil service through competitive examination, factum whereof was duly borne out from his non‑gazetted service book original whereof was produced in the Court revealing his corrected date of birth as 15‑2‑1946‑‑‑Civil servant though had to refer to the Matriculation Certificate being the essential requisite which obviously contained, date of birth unchanged for which he could not be penalized for the same being not the exclusive proof of date of birth and was to be read in conjunction with other allied material determining the same, such as municipal record which in his case was non‑existent, being a remote point of Tribal Area but was vouched by other documents such as School Teacher's Certificate based upon sworn affidavit of the civil servant's mother being the best evidence available having first hand knowledge, Medical Certificate issued by the Medical ,Superintendent of the Hospital, manifesting his age based upon Radiologist and Dental Surgeon opinion.

Ghulam Dastgir v. S.M.A. Kazmi PLD 1970 Lah. 33 and Jamal Khan Jaffar v. Government of Balochistan 1998 SCMR 1302 ref.

(d) Civil service‑

‑‑‑‑ Age of civil servant‑‑‑Correction‑‑‑Civil servant had been diligently and vigorously pursuing the matter with the Competent Authorities including departmental hierarchy for getting his date of birth corrected and eventually succeeded before the Provincial Chief Minister, who granted the same vide a notification which remained unchallenged‑‑‑Plea of Department as to delay was ill‑founded in circumstances.

Ishfaq Hussain Rana v. Government of the Punjab 1993 SCMR 1326 ref.

(e) Civil service‑

‑‑‑‑ Age of civil servant‑‑‑Correction‑‑‑Department which had acted upon the corrected date of birth of civil servant had opted not to consider his candidature for promotion to BPS‑21, inter alia, on that basis, was estopped from reprobating the same.

Ghulam Mustafa Mangal, Additioinal Advocate‑General for Appellant.

Abdur Rahim Kazmi, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent.

Date of hearing: 9th October, 2002.

2003 S C M R 457

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

NAZAR HUSSAIN ---Petitioner

versus

GHULAM QADIR and another---Respondents

Criminal Petition for Leave to Appeal No.841-L of 2001, decided on 9th July, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 25-11-2001 passed in Criminal Appeal No.326 of 1997 and Murder Reference No. 174 of 1997).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Fifteen hours' delay in lodging the F.I.R., per se, was sufficient to demolish the prosecution case, inasmuch as ten members of the family were roped into the crime without any factual or lawful basis---Eight co-­accused equally involved in the act of firing had been acquitted by the Trial Court, but no appeal was preferred by the complainant against their acquittal---Even if the version of the witnesses were accepted that they had laid themselves in the standing crop, it was not possible and probable for them to have identified the accused out of ten persons by firing the fatal shot at the deceased---Findings of fact recorded by the High Court were neither against the evidence nor shocking and perverse so as to exercise discretion against the impugned order of acquittal which otherwise had doubled and -multiplied the presumption of innocence in favour of accused---Leave to appeal was refused to the, complainant by the Supreme Court in circumstances.

Khadim Hussain Qaiser, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 9th July, 2002.

2003 S C M R 459

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah JJ

MANZOOR HUSSAIN‑‑‑Petitioner

versus

NADEEM alias BILLA and 3 others‑‑‑Respondents

Criminal Petition No.447‑L of 2001, decided on 11th March, 2002.

(On appeal from the judgment dated 6‑6‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.371 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Prosecution had suppressed the injuries caused to the accused and his wife and did not disclose the whole story‑‑‑Accused was not required to prove the defence plea beyond reasonable doubt but to show the same to be reasonably possible‑‑‑High Court after having scrutinized the prosecution version and the defence version in juxtaposition, had rightly concluded that the accused had acted in self‑defence and that the offence was not premeditated or pre­planned and fell under S.302(c), P.P.C.‑‑‑Impugned judgment did not suffer from any legal infirmity‑‑‑Leave to appeal was refused to complainant by Supreme Court accordingly.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Defence plea‑‑‑Accused is not required to prove the defence plea beyond reasonable doubt, but he has merely to show that the version put by him was reasonably possible.

Mian Ata‑ur‑Rehman, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th March, 2002.

2003 S C M R 463

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed C. J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

WAQAR AZEEM alias BILLU‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition 382‑L of 2001, decided on 3rd July, 2002.

(On appeal from the order, dated 28‑5‑2001 of the Lahore High Coun rendered in Criminal Miscellaneous 1100‑M of 2001).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.308/306‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Accused in addition to suffer imprisonment was directed to pay Diyat amounting to Rs.2,51,000 on each of the two counts for double murder by the High Court with specific order to be kept in custody until payment of said amount‑‑­Accused was stated to be not in a position to pay the amount of Diyat until enlarged on bail‑‑‑Request being reasonable was granted and accused was released on bail with the direction to pay the amount of Diyat through equal monthly instalments within a period of three years as was prayed for‑‑­Petition was disposed of accordingly.

M. Iqbal Bhatti, Advocate Supreme Court for Petitioner.

Ms. Salina Beg, A.A.‑G. for the State.

Date of hearing: 3rd July, 2002.

2003 S C M R 464

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J. and Muhammad Nawaz Abbasi, J

ILAM DIN and 6 others‑‑‑Appellants

versus

CHIEF ADMINISTRATOR OF AUQAF, LAHORE‑‑‑Respondent

Civil Appeal No. 1353 6f,1995, decided on 31st May, 2002.

(On appeal from the judgment of Lahore High Court, Lahore dated 19‑12‑1994 passed in F.A.0. No.34 of 1991).

(a) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--

‑‑‑‑Ss. 6 & 7‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.4‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Leave to appeal was granted by Supreme Court to consider the contentions of petitioners to the effect that period of 30 days could not be applied in the present case as property itself was transferred in favour of their predecessor about 4 years after issuance of notification treating the same as an evacuee property; and property having been acquired under compensation pool constituted under provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, same could not be acquired by respondent as Waqf property under West Pakistan Waqf Properties Ordinance, 1961.

(b) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss.2(d), 6 & 7‑‑‑Power of Chief Administrator of Auqaf ‑‑Scope‑‑‑ Issuance of notification under S.6 of the West Pakistan Waqf Properties Ordinance, 1961‑‑‑Prerequisites‑‑‑Merely by raising presumption, property cannot be taken over, unless definable as Waqf property under S.2(d) of the Ordinance‑‑‑Ordinance would not be applicable in absence of proof of Waqf‑‑‑Remedy of aggrieved person against such notification‑‑‑Principles.

Chief Administrator of Auqaf can exercise power under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, if the Waqf is already in existence and in a case in which the notification is issued in respect of a property, which was not a Waqf property, the aggrieved person on coming to know about the issue of such notification can validly challenge the same before appropriate forum and seek declaration that the property was not a Waqf property.

Prerequisite of issue of notification under section 6 of West Pakistan Waqf Properties Ordinance, 1961 is that property must be Waqf and if there is no proof of Waqf, the Ordinance would not be applicable. Chief Administrator of Auqaf cannot by raising presumption of Waqf, take over any property, which is not definable as Waqf Property under section 2(d) of the Ordinance.

(c) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss.7, 6 & 2(d)‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), 'S.4‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Notification under S. 6 of the West Pakistan Waqf Properties Ordinance, 1961‑‑‑Petition under S.7 of the said Ordinance‑‑‑Limitation‑‑‑Notification was issued on 21‑12‑1960‑‑‑Appellants after receipt of eviction notice on 26‑8‑1967 filed petition under S.7 of the Ordinance before District Judge who allowed the petition, but High Court accepted appeal of respondent on the ground that at the time of issuance of notification, predecessor of appellants had no right or interest in disputed shop as Permanent Transfer Deed was issued in his favour in August, 1964, thus, he had no locus standi to challenge such notification; and that petition had been filed about 7 years after issuance of notification‑‑‑Validity‑‑‑Appellants had placed on record documentary evidence in support of their claim of ownership of disputed shop and its character as an evacuee property‑‑‑Respondent had not established on record that disputed shop was owned by a Muslim, which was part of Waqf‑‑‑Chief Administrator Auqaf in absence of any proof of disputed shop being a Waqf property would have no jurisdiction to issue notification under S.6 of the Ordinance treating same as Waqf Property and make such notification‑‑‑Disputed shop had been constructed on an evacuee property, which had been transferred to predecessor of appellants in 1964‑‑­Chief Administrator of Auqaf at the time of issuance of notification under S.6 of the Ordinance due to location of shop had presumed that same was part of the property attached with mosque and was a Waqf property‑‑‑Mere fact that shop was adjacent to shops forming part of Waqf, would not be an evidence of Waqf to bring same within purview of S.2(d) of the Ordinance to be notified under S.6 of the Ordinance‑‑‑Appellants had come to know about notification on receipt of eviction notice sent to them by Auqaf Department and they, without wasting any time, had filed petition under S.7 of the Ordinance‑‑‑Appellants had been in possession of disputed shop as owners without any interruption in the intervening period, thus, limitation for purpose of S.7 of the Ordinance would start from date of knowledge and not from date of publication of notification under S.6 of the Ordinance‑‑‑High Court without properly attending to the character of property and considering the question of limitation, had non‑suited appellants on technical grounds‑‑‑Supreme Court accepted appeal, set aside impugned judgment and restored the judgment of District Judge in circumstances.

Muhammad Akram Khawaja, Advocate Supreme Court and Ch. lkram‑ul‑Haq, Advocate‑on‑Record for Appellant.

Sh. Iftikhar Ahmed, Advocate Supremo Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 31st May, 2002.

2003 S C M R 472

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Javed lqbal, JJ

NASIR ABDUL QADIR‑‑‑Petitioner

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Petition for Leave .to Appeal No.28‑K of 2000, decided on 4th July, 2002.

(On appeal from the judgment dated 11‑4‑2000 of High Court, of Sindh, Karachi, passed in Criminal Revision Application No.24 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Constitution of Pakistan (1973), Ast.185(3)‑‑‑Case had been transferred by High Court from the file of Sessions Judge to the Court of Special Judge‑‑‑Validity‑‑‑Question of jurisdiction has to be determined on the basis of F.I.R. and other material produced by the prosecution at the time of presentation of challan and the Court on the basis of such material would decide whether cognizance was to, be taken or not‑‑‑Irrespective of the position whether the Kalashnikov was recovered or not, if it was used in the commission of the crime it might bring the case within the purview of the scheduled offences under the Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑‑View expressed by the High Court was not open to any exception‑‑‑Leave to appeal was refused accordingly.

Azhar Hussain v. Government of Punjab 1992 PCr.LJ 2308; Allah Din v. State 1994 SCMR 717 and Jehangir v. State 1999 PCr.LJ 476 ref.

Sh. Mir Muhammad, Advocate Supreme Court and Akhlaque Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

M. Sarwar Khan, Additional Advocate‑General for the State.

Date of hearing: 4th July, 2002.

2003 S C M R 475

[Supreme Court of Pakistan]

Preset: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

NAZIR AHMED ‑‑‑Petitioner

versus

BAKHTAWAR alias BAKHA and others‑‑‑Respondents

Criminal Petition No. 598‑L of 2001, decided on 4th May, 2002.

(On appeal from the judgment dated 1‑8‑2001 passed by Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 193 of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Reasons which had weighed with the High Court in acquitting the accused were, that it was not believable that a grown up son would join hands with his mother and her paramour to kill his own father, that the accused could not select a time to kill the deceased when the neighbourhood had already woken up, that the eye‑witnesses were not only closely related to the deceased but were also chance witnesses of the occurrence, and that no evidence was available on record to suggest any, estrangement of relations between the deceased and his wife‑‑‑Said, reasons offered by High Court were unexceptionable in reaching the conclusion that the charge against the accused was,, not proved beyond all doubts‑‑‑Leave to appeal was declined td complainant by the Supreme Court in circumstances.

Mr. Shafaqat, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th June, 2002.

2003 S C M R 477

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD MANSHA KAUSAR‑‑‑Petitioner

versus

MUHAMMAD ASGHAR and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.671‑L of 2001, decided on 8th July, 2002.

(On, appeal from order of Lahore High Court, Multan Bench, Multan dated 25‑9‑2001 passed in Criminal Appeal No.89 of 2001).

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Appreciation of evidence ‑‑‑Principle‑‑­Law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence of accused is doubled and multiplied after a finding of not guilty is recorded by a competent Court of law in his favour‑‑‑Such finding cannot be reversed, upset and disturbed unless the same is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non‑reading of evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Acquittal of accused recorded by the Courts below did not suffer from any error of jurisdiction or misreading or non‑reading of evidence‑‑­Reappraisal of evidence at such stage was neither desirable nor permitted by law‑‑‑Judgment of acquittal could not be disturbed even though second view was reasonably possible after assessment of evidence‑‑‑Without any ocular evidence no importance could be attached to the evidence of "Vajtakkar" which was otherwise weak and infirm‑‑‑Extra judicial confession of accused was joint and vague‑‑‑Recovery of crime weapons at the behest of accused was not adequate enough to record a finding of guilt against the accused‑‑­Leave to appeal was declined to complainant by the Supreme Court in circumstances.

Rana Muhammad Ashraf Khan, Advocate Supreme Court and Muhammad Islam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th July, 2002.

2003SCMR480

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

TANVEER MAHBOOB and another‑‑‑Petitioners

versus

HAROON and others‑‑Respondents

Civil Petitions Nos.78 and 117 of 2002, heard on 27th March, 2002.

(On appeal from the judgment of High Court of Sindh, dated 12‑9‑2001 passed in H.C.A. No.39/87, in both cases).

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑Ss.12 & 39‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for specific performance of agreement to sell and cancellation of sale deed executed by owners in favour of defendants‑‑‑Suit was decreed by Courts below‑‑‑Validity‑‑‑Agreement of sale in favour of plaintiffs contained a stipulation to do certain acts in future without any right or title in property to have flown‑‑‑Such agreement had not been found genuine by Courts below, thus, conveyance deed executed subsequently on its basis would fall to ground‑‑‑Factual controversy relating to execution and genuineness of agreements, on the basis of which plaintiffs had set up their claim, had been correctly resolved by Appellate Court, which would not be open to question through reappraisal of evidence before Supreme Court‑-‑No misreading or non‑reading of evidence was found out, thus, no departure could be made from view taken by Appellate Court‑‑‑Supreme Court dismissed the petition for leave to appeal being without any substance.

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

‑‑‑‑O. XXXII, Rr. 3 & 4‑‑‑Guardian‑ad‑litem‑‑‑Minor defendant represented in suit by his father or brother or sister as co‑defendant having no conflict of interest‑‑‑Such co‑defendant sincerely and effectively defended rights and interest of minor in property‑‑‑Rights on minor in such circumstances would be deemed to have been sufficiently safeguarded‑‑‑Mere fact that minor was not sued through guardian‑ad‑literm would not make decree invalid and same would be binding on minor‑‑‑Omission of formal order, of appointment of guardian‑ad‑litem of minor, though represented by his , natural guardian, would not affect proceedings in suit and. decree, unless due to such omission prejudice caused to minor was shown‑‑Otherwise such objection would be only of technical importance.

In a case in which a minor defendant in the suit was represented by his father or brother or sister as co‑defendant without any conflict of interest and such co‑defendant sincerely and effectively defended the rights and interest of the minor in the property, it would be deemed that such rights were sufficiently safeguarded and mere fact that minor was not sued through guardian‑ad‑litem would not make the decree invalid and same would be binding on the minor.

Where minor is properly represented, then omission of a formal order appointing the guardian would not be fatal to suit.

Non‑reading of a formal order by Court appointing the person as guardian of the minor is at best an irregularity curable under section. 99, C.P.C.

Non‑fulfillment of formal requirement of appointment of guardian ­ad‑litem of a minor defendant under Order XXXII, Rule 3, C.P.C. would not affect the proceedings in the suit and decree, if ultimately 'passed, unless it is shown that due to omission of appointment of guardian‑at‑litem of a minor, who was being represented by his natural guardian, the minor cause was prejudiced, otherwise the objection would be only of technical importance. [p. 489] G

In the present case, minor defendant was sufficiently represented, therefore, no prejudice was caused to him as his interest was, throughout being watched properly by co‑defendant (his brother) and a formal defect of not appointing guardian‑ad‑litem of said minor defendant, would not affect the decree.

Anandram v, Madholal AIR 1960 Rajastan 189; Kameen Khan v. Ghazi Marjan 1990 MLD 1865; Syed Ahmed v. Prafulla Kumar De PLD 1961 Dacca 698 and Darshan Singh v. Kr. Maheshur Dayal AIR 1935 Oudh 183 rel.

Fazale Ghani, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner (in Civil Petition No. 78 of 2002).

Mushtaq Memon, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record (absent) for Respondent No. 1. (in Civil Petition No. 78 of 2002).

H.A. Rehmani, Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record for Petitioners. (in Civil Petition No. 117 of 2002).

Nemo for Respondents. (in Civil Petition No. 117 of 2002).

Date of hearing: 27th March, 2002.

2003 S C M R 489

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Midn Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMMAD BOOTA and another‑‑‑Petitioners

versus

THE STATE and another‑‑‑Respondents

Criminal Petitions Nos.242‑L and 265‑L of 2001, decided on 7th March, 2002.

(On appeal from the judgment dated 22‑3‑2001 of the Lahore High Court, Lahore passed in Criminal Appeals Nos; 533 of 1995 and 584 of 1995).

Penal Code (XI,V of 1860)‑‑‑

‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Medical evidence mid other prosecution evidence had proved on record that the deceased had met his death due to the single shot fired by the accused‑‑‑Plea of self‑defence taken by the accused was a concocted and afterthought‑‑­Both the Courts below had reached a concurrent finding without misreading of evidence which did not‑ call for any interference‑‑‑Leave to appeal was refused by Supreme Court‑ to the accused in circumstances.

Hasnat Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner (in C.P. No.242‑L of 2001).

Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners (in C.P. No.265‑L of 2001).

Memo for Respondents.

Date of hearing: 7th March, 2002.

2003 S C M R 492

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tnavir Ahtned Khan and Khalil‑ur‑Rehman Ramday, JJ

TAHIR SAEED and another‑‑‑Petitioners

vdrsus

MUHAMMAD IRSHAD RANA and another‑‑‑Respondents

Criminal Petition No.773‑L of 2001, decided on 4th June, 2002.

(On appeal from the judgment/order, dated 14‑11‑2002 passed by Lahore High Court, Lahore in Criminal Appeal No.307 of 1997).

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.423 (1) (b)‑‑‑Remand of the case of accused to Trial Court by the High Court was challenged on the ground that no incriminating evidence was available against the accused to involve him in the commission of crime‑‑­Since the trial had commenced and statement of one of the witnesses had also been recorded on oath, therefore, it was not in the interest of justice to interfere in the proceedings which were pending on the tile of the Court having jurisdiction to appreciate the evidence so produced before it.

Shaukat Haroon, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th June, 2002.

2003 S C M R 493

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J. and Muhammad Nawaz Abbasi, J

MUNIR HUSSAIN and 3 others---Petitioners

versus

THE STATE---Respondent

Criminal Petition No. 171 of 2002, decided on 30th May, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 12-2-2002, passed in Criminal Appeal No.65 of 1990, Criminal Revision No.75 of 1990 and Criminal Revision No. 10 of 1991).

Penal Code (XLV of 1860)---

----Ss.302/307/148/149---Constitution of Pakistan (1973), Art. 185(3)---Trial Court as well as the High Court had rightly arrived at the conclusion that both the sides had desired to check their strength---Occurrence had taken place on Eid day in the village in a street---Fight was a free one and in such­like cases the question of self-defence was not at all relevant---Each accused was rightly held to be punished according to his individual liability and the role played by him---Impugned judgment had no flaw and warranted no interference by Supreme Court---Leave to appeal was refused to accused accordingly.

M. Ilyas Siddiqui, Advocate Supreme Court and M.S. Khattack, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 30th May, 2002.

2003 S C M R 494

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

SULTAN and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Jail Petition No. 185 of 2000, decided on 14th June, 2002.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 26‑9‑2000 passed in Criminal Appeal 366 of 1996 and Murder Reference No. 318 of 1997).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑­Leave to appeal was granted to accused by Supreme Court to consider the contention that he being minor of the age of about 13 years at the time of incident and the alleged motive having not been proved by the prosecution, he was entitled to lesser punishment.

Sh. Masood Ahmed, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 14th June, 2002.

2003 S C M R 496

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C. J., Sardar Muhammad Raza and Faqir Muhammad Khokhar, JJ

SAIF ULLAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.719‑L of 2001, decided on 2nd July, 2002.

(On appeal from the order, dated 11‑10‑2001 passed by the Lahore High Court, Multan Bench, Multan in Criminal Revision No. 178 of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.334 & 337‑Q‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Accused had chopped off and mutilated the nose of the victim with a knife and he had been convicted under 5.334, P.P.C. for causing hurt in the nature of "Itlaf‑i­-Udw"‑‑‑ Accused, therefore, was liable to "Arsh" which would necessarily be equivalent to the value of Diyat in terms of S.337‑Q, P.P.C. and was not the same thing as the compensation under S.544‑A, Cr.P.C.‑‑‑High Court had already allowed to the accused a period of three years for making the payment of "Arch"‑‑‑Impugned judgment did not suffer from any infirmity‑‑‑Leave to appeal was refused to accused in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.337‑Q‑‑‑Criminal Procedure Code (V of 1898), S.544‑A‑‑‑"Aish" not equivalent to compensation‑‑‑"Arch" under the P.P.C. is not the same thing as the compensation under S.544‑A, Cr.P.C.

Syed Shamim Abbas Bokhari, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 2nd July, 2002.

2003 S C M R 497

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Syed Deedar Hussain Shah, JJ

RASHID AHMED alias KUKU‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent .

Jail Petition No.67 of 2001, decided on 17th April, 2002.

(On appeal from the judgment dated 8‑5‑2001 of the Lahore High Court, Lahore, ,passed in Criminal Appeal No.879 of 1992 and Murder Reference No.410 of 1992).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused was squarely charged in the promptly lodged F.I.R. for committing the murder of the deceased‑‑‑Accused had been apprehended soon after the occurrence by an independent and disinterested person‑‑‑Complainant , was a natural and probable eye‑witness whose testimony inspired confidence being free from any contradiction or discrepancy and the same was not undermined by the acquittal of co‑accused‑‑‑Ocular evidence was supported by medical evidence, recovery of crime dagger and positive reports of the Chemical Examiner and the Serologist‑‑‑Non‑availability of the motive against the accused was immaterial in the face of the ocular evidence which was not only reliable but was also fully corroborated by independent evidence emanating from unimpeachable sources‑‑‑Leave to appeal was declined to accused by Supreme Court in circumstances.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 17th April, 2002.

2003 S C M R 501

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Mst. NUR BEGUM and another‑‑‑Petitioners

versus

SETTLEMENT AND REHABILITATION COMMISSIONER, MULTAN and 2 others‑‑‑Respondents

Civil Appeal No. 191 of 1995, decided on 26th March, 2002.

(On appeal from the judgment Lahore High Court, Lahore, dated 26‑11‑1991, 25‑9‑1993 passed in Writ Petition No. 310‑R of 1974).

(a) West Pakistan Rehabilitation and Settlement Scheme‑‑‑

‑‑‑‑ Part II, Paras. 7(5) & 13‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Temporary allottee‑‑‑Preferential right of allotment after transfer of Claim Forms to other District‑‑‑Entitlement‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether petitioners fell within definition of temporary allottee as given in Rehabilitation and Settlement Scheme and as such had preferential right to get their claims settled in the village as compared to respondents; and that respondent could not claim preference over entitlement of petitioner as the said respondent was only an informer, whose units were transferred to the village on 30‑9‑1963 in connection with Mukhbari application, which was subsequently dismissed, resultantly the units were sent back on 4‑7‑1969 and as such there could not be any pending claim of the respondent in the village at the time of confirmation of land in favour of petitioners in year 1973.

(b) West Pakistan Rehabilitation and Settlement Scheme‑‑‑

‑‑‑‑ Part II, Paras. 7(5) & 13‑A‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Temporary allottee‑‑‑Preferential right of allotment‑‑­Allotment of land in favour of appellants‑‑‑Settlement Commissioner allowed revision petition filed by respondents on the ground that appellant being niece of temporary allottee would not fall in definition of relatives and further being a married woman would lose right of allotment of land, if any, under para. 7(5) of West Pakistan Rehabilitation and Settlement Scheme; and that another appellant had inferior right to that of respondent who was to be given preference to the extent of certain units‑‑‑High Court dismissed Constitutional petition filed by appellants on the ground that transfer of claim of their predecessor in disputed village was in violation of para. 13‑A of Rehabilitation and Settlement Scheme, thus, they would have no right for allotment in that village‑‑‑Validity‑‑‑Factual position on record appeared to be different to that of order of Settlement Commissioner, which was not sustainable ‑‑‑RL‑II placed on record showed that land proposed in name of respondent as Mukhbari unit was cancelled subsequently and he was not a temporary allottee in village on the date of disposal of revision petition by Settlement Commissioner; and that claim of other respondent in full had already been satisfied and nothing was left to be adjusted in the village in preference to appellant‑‑‑Nothing on record to show that transfer of units of appellants in the village was either made by an incompetent officer or same was against record‑‑‑Such objection had neither been raised by parties at any stage nor by Settlement Commissioner, who was in possession of relevant record, rather had treated transfer in accordance with law‑‑‑In absence of anything to contrary, transfe: of claim of appellants would be deemed to be made by Competent Authority‑‑‑Respondents having no right of allotment in village could not defeat entitlement of appellants‑‑‑Both paternal and maternal uncles would be included in the term "relatives" as used in para. 7(5) of the West Pakistan Rehabilitation and Settlement Scheme‑‑‑Such a person, notwithstanding his marital status, if fell in term "relatives", would be entitled to allotment under Para. 7(5) of the Scheme‑‑‑Appellant (niece of the temporary allottee) would be deemed to be sitting allottee through her predecessor in the village and despite being married would be entitled for allotment of land under para. 7(5) of the Scheme‑‑‑Supreme Court allowed appeal, restored allotment in the names of appellants and set aside impugned judgment.

(c) West Pakistan Rehabilitation and Settlement Scheme‑‑‑

‑‑‑‑ Part I1, Para 7(5)‑‑‑Term "relatives"‑‑‑Connotation‑‑‑Both paternal and maternal uncles would be included in term "relatives" ‑‑‑Such a person, notwithstanding his marital status, if fell in the term "relative"; would be entitled to allotment under para. 7(5) of West Pakistan Rehabilitation and Settlement Scheme.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 2(8) & 92‑‑‑Official record‑ ‑‑Presumption of truth‑‑‑In absence of anything to the contrary, presumption of truth would be attached to official record.

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

Sh, Masud Akhtar, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondent No.3.(iv)

Mubashir Latif, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record (absent) for Respondents 2 and 3.

Date of hearing: 26th March, 2002.

2003 S C M R 508

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmad and Muhammad Nawaz Abbdsi, JJ

FAIZ RASOOL alias FAIZI and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petitions Nos.834‑L of 838‑L of 2001, decided on 14th May, 2002.

(On appeal from the judgment of Lahore High Court, Lahore dated 10‑10‑2001/29‑10‑2001 passed in Criminal Appeal No. 117 of 1999, Murder Reference No. 12‑T of 1999 and Criminal Appeal No. 118 of 1999 and Murder Reference No. 12‑T of 1999 respectively).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 436 & 427‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused by Supreme Court to reappraise the evidence in the interest of safe administration of criminal justice which was necessary to examine the legality of conviction and sentence awarded to them.

Ghulam Nabi Bhatti, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioner (Criminal Petition No.834‑L of 2001).

Di1 Muhammad Tarar, Advocate Supreme Court for the State.

Mian Attaur Rehman, Advocate‑on‑Record (absent) for the Complainant. .

Sh. Khizar Hayat, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate‑on‑Record (absent) for Petitioner (Criminal Petition No.838‑L of,2001).

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 14th May, 2002.

2003 S C M R 510

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

GHULAM ABBAS and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.333 of 2001 out of Jail Petition No.241 of 1999, decided on 11th June, 2002.

(On appeal from the judgment dated 13‑7‑1999 passed by Lahore High Court, Lahore in Criminal Petition 156‑1 of 1998 and Murder Reference No. 206‑T of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34, 324/34 & 394/34‑‑‑Appraisal of evidence‑‑‑Accused did not have the benefit of assistance and proper guidance of a legal practitioner for filing and pursuing the appeal in High Court and the petition for leave to appeal in Supreme Court and each one of them had been punished with death, delay of 59 days in filing the petition for leave to appeal in Supreme Court, therefore, was condoned‑‑‑Entire prosecution case comprised of strange happenings and unnatural and mysterious conduct of the prosecution witnesses‑‑‑Testimony of the three crucial witnesses being not plausible, evidence of alleged recovery of some robbed articles was of no significance‑‑‑Case against accused was not proved beyond all reasonable doubts‑‑‑Accused were acquitted accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners. Ch. Dil Muhammad Tarar, Advocate Supreme Court for the State. Malik Qasim Joya, Advocate Supreme Court for the Complainant.

Date of hearing: 11th June, 2002.

2003 SCMR 516

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

RAFIQUE AHMED and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.592 and 593 of 2000, decided on 16th October, 2002.

(On appeal from the judgment dated 21‑2‑2000 of Lahore High Court, Multan Bench passed in Criminal Appeal No. 198 of 1997 and Murder Reference No. 170 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 324/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Leave to appeal was granted to accused to reassess and evaluate the entire evidence so as to find out whether the guilt of the accused had been established in accordance with the principles enunciated from time to time for safe administration of justice in criminal cases and whether High Court was legally justified in reducing the sentence of one accused for the reasons stated in the impugned judgment.

(b) Penal, Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 324/34‑‑‑Appraisal of evidence‑‑‑Occurrence had taken place in day light ‑‑‑F.I.R. had been promptly lodged‑‑‑Complainant and the injured witnesses whose presence at the spot was established had fully implicated the accused‑‑‑Prosecution evidence was irrefutable‑‑‑Recovery of crime weapons at the instance of accused coupled with the reports of the Chemical Examiner and the Forensic Science Laboratory as well as medical evidence had corroborated the ocular testimony‑‑‑High Court had converted the death sentence of one accused to imprisonment for life for substantial reasons based on evidence brought on record and the discretion exercised by it did not warrant any interference‑‑‑Appeals were dismissed accordingly.

M. Zaman Bhatti, Advocate Supreme Court (in Criminal Appeal No. 592 of 2001) and for Respondent No. l (in Criminal Appeal No. 593 of 2001) for Appellants.

Zia Ullah, Advocate Supreme Court for Appellants (in Criminal Appeal No.592 of 2001).

Ch. Ghulam Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 16th October, 2002.

2003 S C M R 522

[Supreme Court of Pakistan]

Present: Javed lqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

ABDUR RAUF‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.297 of 2000, decided on 15th March, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 7‑7‑2000 passed in Criminal Appeals Nos.26 of 1993 and 315 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

---S.302(b)‑‑‑‑Appreciation of evidence‑-‑Site Plan‑‑‑Site plan is not a substantive document to be used to contradict the ocular account and cannot be given preference over the direct evidence of eye‑witnesses.

(b) Penal Code (XLV of 1860)‑‑‑

S. 302(b)‑‑‑‑Appreciation of evidence‑‑‑Conflict in ocular testimony and medical evidence‑‑‑Eye‑witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, conflict of ocular account with medical evidence like minor discrepancies relating to the seat of injuries would not negate the direct evidence and would have no adverse effect on the prosecution case.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Principle‑‑‑Relationship itself is no ground to discard and discredit the testimony of eye‑witnesses unless they are shown to be partisan and interested witnesses.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appraisal of evidence‑‑‑Eye‑witnesses undoubtedly were related to the deceased, but they being entirely independent and truthful, their testimony was alone sufficient to establish the charge without any other corroborative evidence‑‑‑Ocular evidence was, however, amply supported by the motive, medical evidence and abscondence of accused‑‑‑Occurrence had taken place in bright day light at a busy place within the sight of natural witnesses‑‑‑Accused was named as main assailant in the promptly lodged F.I.R. who had fired at the deceased with a Kalashnikov‑‑‑Eye­witnesses were truthful and trustworthy‑‑‑Impugned judgment of High Court convicting and sentencing the accused called for no interference.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Related witness ‑‑‑Corroboration‑‑­Evidence of related witnesses who are not found inimical and inspire confidence would hardly need any corroboration.

Rab Nawaz Noon, Advocate Supreme Court and M.S. Khattak Advocate‑on‑Record for Appellant.

Mrs. Mussarat Hilali, Addl. A.‑G., N.‑W.F.P. for Respondents.

Date of hearing: 15th March, 2002.

2003 S C M R 528

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas, and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD SHARIF‑‑‑Petitioner

versus

MUHAMMAD ASLAM and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No.78‑L of 2002, decided on 26th June, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 27‑12‑2001 passed in Criminal Appeal No.1038 of 2000 and Criminal Revision No.744 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Sole injury sustained by the deceased was not proved to have been caused by .7 mm rifle allegedly held by the accused from which he had fired because no lead bullet was recovered from the wound of the deceased‑‑­Investigating Officer had declared the accused as innocent which was confirmed by the D.S.P. Circle‑‑‑Finding recorded by the Investigating Officer though could not be the sole basis for acquittal of the accused, but it could be considered as a circumstance in support of the independent findings arrived at to the effect that the prosecution had failed to prove the case beyond doubt against the accused‑‑‑Impugned judgment did not suffer from any legal infirmity‑‑‑Leave to appeal was refused to the complainant by Supreme Court accordingly.

Khadim Hussain Qaiser, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 26th June, 2002.

2003 S C M R 531

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD TARIQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.262 of 1999, decided on 21st May, 2002.

(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 1‑10‑1998 passed in Criminal Appeal No. 147 of 1996 and Murder Reference No. 23 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 of 324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Contentions were that medical evidence was in material conflict with ocular testimony; that the eye‑witness account on which two co‑accused had been acquitted had been relied upon to convict and sentence the accused and that the recovery of the crime empty and the gun was of no avail to prosecution‑‑­Leave to appeal was granted by Supreme Court to accused to consider inter alia the said contentions.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 of 324‑‑‑Appraisal of evidence‑‑‑Dispute relating to the ownership of the "Ahata" existed between the parties‑‑‑Eye‑witnesses had categorically stated that the deceased and the injured witness had received injuries as a result of separate shots fired by the accused‑‑‑Medical evidence had corroborated the ocular testimony‑‑‑Finding of guilt of accused by the Courts below was not open to any exception and his convictions were maintained accordingly‑‑‑Immediate cause of fateful occurrence having remained shrouded in mystery, sentence of death of accused under S.302, P.P.C. was converted into imprisonment for life.

Sh. Khizar Hayat, Advocate Supreme Court and Abdul Aasim Jafri, Advocate‑on‑Record for Appellant.

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

Date of hearing: 21 st May, 2002.

2003 S C M R 537

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Blutgwandas and Khalil‑ur‑Rehman Ramday, JJ

THE STATE‑‑‑Petitioner

versus

KHADIM HUSSAIN ‑‑‑Respondent

Criminal Petition No.66‑L of 2002, decided on 25th June, 2002.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 19‑7‑2001 passed in Criminal Appeal No. 194 of 1998/Murder Reference No. 27 of 1999)

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Petition for leave to appeal against acquittal was barred by 114 days‑‑‑Delay having been caused due to non‑availability of funds in filing the petition on behalf of the State was not a sufficient ground for its condonation under the law‑‑‑Application seeking condonation of delay was consequently rejected‑‑‑Resultantly, main petition was also dismissed as barred by time and leave to appeal was refused by Supreme Court.

M. Akbar Tarar, A.A.‑G. Punjab for the State.

Nemo for Respondent.

Date of hearing: 25th June, 2002.

2003 S C M R 538

[Supreme Court of Paldstan]

Present: Sh. Riaz Ahmad C. J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

NAZIRA‑‑‑Petitoner

versus

MUKHTAR AHMED and 2 others‑‑‑Respondents

Criminal Petition No.354‑L of 2001, decided on 5th March, 2002.

(On appeal from the judgment dated 9‑5‑2001 of. the Lahore High Court in Criminal Appeal No. 1135 of 2000).

(a) Penal Code (XLV of 1860)‑

‑‑‑‑S.302(b)/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal against acquittal‑‑‑No injury was attributed to accused who had allegedly made ineffective firing‑‑‑Recoveries effected from the accused were insignificant on account of non‑recovery of any crime empty from the spot‑‑­High Court had justifiably and competently acquitted the accused of the charge for the reasons based on correct application of law and proper evaluation of evidence existing on record‑‑‑Formation of another view of the evidence would hardly constitute a valid ground for interference with the acquittal‑‑‑Leave to appeal was refused accordingly.

(b) Penal Code (XLV of 1860)‑

‑‑‑‑S.302(b)/34‑‑‑Appeal against acquittal‑‑‑Appreciation of evidence‑‑­Merely because another view of the evidence can be formed hardly constitutes a valid ground to interfere with the acquittal.

C.M. Latif Rawn, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 5th March, 2002.

2003 S C M R 540

[Supreme Court of Pakistan]

Present: Rana Bhagivandus and Syed Deedar Hussain Shah, JJ

SOHBAT KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No. 19 of 2001, decided on 21st May, 2002.

(On appeal from judgment dated 29‑1‑2001 passed by the High Court of Balochistan, Quetta in Criminal Appeal No. 106 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Consistent plea of the accused from the very beginning was that he had committed the murders under sudden and grave provocation‑‑‑Leave to appeal was granted to the accused to consider whether in the peculiar circumstances of the case he was not entitled to mitigation of sentence and whether the impugned judgment could be sustained in law in view of the principles for appraisal of evidence laid down by Supreme Court in criminal cases.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 21st May, 2002.

2003 S C M R 542

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

Mst. NOOR KHATOON through Legal Heirs and another‑‑Petitioners

versus

MUHAMMAD SHAFI‑‑‑Respondent

Civil Petition No. 3025 of 2001, decided on 2nd July, 2002, (On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 18‑7‑2001 passed in C.R. 124 of 1988).

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

‑‑‑‑S.115, O. VI, R.17 & O.XX, R.18(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for partition‑‑‑Defendant resisted suit claiming to be in possession of suit property on the basis of will deed dated 17‑8‑1949 made in his favour by his deceased mother‑‑‑Trial Court through preliminary decree declared plaintiff as owner of 7/8th share in suit property‑‑‑Such decree was affirmed by Appellate Court‑‑‑Defendant during pendency of revision petition before High Court made application for placing on record certain documents as additional evidence to show that suit property being an evacuee property had been transferred in his name in 1978‑‑‑High Court did not entertain such plea and dismissed revision petition ‑‑‑Validity‑‑‑Defendant had not stated at any stage of suit that suit property was an evacuee property, rather he had stated in his written statement that his mother being exclusive owner of suit property had bequeathed same to him through will in 1949‑‑­Evacuee interest in suit property had neither been pleaded in written statement nor at any subsequent stage‑‑‑Defendant had not denied that he was not aware of the entries in Jambandis relating to evacuee interest of property, thus, he was estopped to set up a new case before High Court or Supreme Court to challenge the decree in suit passed by Trial Court and affirmed by Appellate Court‑‑‑Judgment of High Court did not suffer from any legal or factual infirmity‑‑‑Supreme Court dismissed the petition for leave to appeal in circumstances.

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

‑‑‑‑O.VI, R.17‑‑‑Amendment of pleadings‑‑‑Scope‑‑‑Introduction of new facts and setting up a different plea in conflict to pleadings changing the character of suit, could not be allowed at a subsequent stage without amendment of pleadings.

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

‑‑‑‑O.VI, R.17‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Amendment in pleadings‑‑‑Power of Supreme Court to grant such permission ‑‑‑Scope‑‑­Petitioner instead of availing suitable remedy at proper stage for an appropriate relief, raised such matter before Supreme Court on the ground that necessary amendment in pleadings could be allowed at any stage and that Supreme Court had unlimited power to grant such permission to do complete justice‑‑‑Validity‑‑‑No such request could be entertained by the Supreme Court at such belated stage.

(d) Limitation‑

‑‑‑‑ Plea of‑‑‑Principle of estoppel ‑‑‑Applicability‑‑‑Party would be debarred from raising plea of limitation on general principle of estoppel arising from his conduct, particularly when such plea taken belatedly involved an inquiry of facts.

Muhammad Buta v. Habib Ahmed PLD 1985 SC 153 fol.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd July, 2002.

2003 S C M R 545

[Supreme Court of Pakistan] .

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

Ch. MUHAMMAD MAZHAR and others‑‑‑Petitioners

versus

GOVERNMENT OF PUNJAB and others‑-‑Respondents

Civil Petition No.777/L of 2002, decided on 1st July, 2002.

(On appeal from the judgment of the Lahore High Court, dated 30‑1‑2002 passed in ICA No.216 of 1990).

Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S.75(5)‑‑‑Sanctioned private housing scheme‑‑‑Land reserved for use as children park‑‑‑Withdrawal of such land by owners thereof through amendment in scheme‑‑‑Refusal of Municipal Corporation and Provincial Government to approve such amendment‑‑‑Contention of owners was that since title/ownership in such land continued to vest in them and was not transferred to Municipal Corporation, the Corporation or for that purpose Provincial Government was not legally justified not to sanction or give approval to such amendment in scheme‑‑‑Validity‑‑‑Private person having got Scheme framed by Municipal Corporation about his private land and selling plots carved out to purchasers at high rates was sufficient consideration and compensation to owners thereof for reserving land for public park‑‑‑Such owners were not entitled to any further compensation in respect thereof‑‑‑Purchasers of plots in developed scheme had been given understanding that such land would be available for public park for their children‑‑‑Provincial Government was legally justified not to approve or sanction the amendment in scheme.

Ahmed Saeed Kirmani, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 1st July, 2002.

2003 S C M R 549

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

TALIB HUSSAIN and others‑‑‑Petitioners

versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Civil Petition No.223‑L of 1999, decided on 23rd May, 2002.

(On appeal from the judgment/order dated 2‑12‑1998 passed by Lahore High Court, Lahore in Writ Petition No.42‑R of 1996)

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

‑‑‑‑S. 2, 3 & 4‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑‑‑Transfer of Property Act (IV of 1882), S.41‑‑‑Evacuee land‑‑­Allotment in favour of vendor not being a Mukhbar was found to be fraudulent and was cancelled ‑‑‑Vendees claimed protection of S.41 of Transfer of Property Act, 1882, for having purchased land from vendor, who was its ostensible owner‑‑‑Validity‑‑‑Entitlement of vendees was based upon entitlement of vendor ‑‑‑Vendees were to survive or sink with vendor depending upon determination of legal status of the property transferred to vendor‑‑‑Vendor having failed to keep his entitlement alive, vendees claim was bound to be rejected.

(b) Fraud‑‑

‑‑‑‑ Fraudulent transaction ‑‑‑Effect‑‑‑Fraudulent transaction vitiates even most solemn proceedings‑‑‑Such transaction has no foundation to stand upon‑‑­Whenever such transaction is declared null and void, then whole series of such order alongwith superstructure built upon same is bound to collapse.

Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104; 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 and Muhammad Yaqoob v. The State 1997 PCr. LJ 1979 ref.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.41‑‑‑Evacuee property‑‑‑Protection of S.41 of the Transfer of Property Act was not available to a vendee of evacuee property.

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 and Sufi Zaheer Ahmad through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others 1993 MLD 195 fol.

Ch. Irshad Ullah Chattha, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Sh. Abdul Aziz, Advocate Supreme Court and Tanvir Ahmad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 23rd May, 2002.

2003 S C M R 554

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Tanvir Ahmed Khan, JJ

MUHAMMAD BASHARAT‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Petition No.239 of 2001, decided on 4th November, 2002.

(On appeal from the judgment dated 12‑9‑2001 of Lahore High Court, Rawalpindi Bench, passed in Criminal Appeal No.225 of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Eye‑witnesses were the natural witnesses of the occurrence and their testimony inspired confidence‑‑‑Fact that the eye‑witness had not been named in the F.I.R. was not by itself sufficient to discard his testimony‑‑‑Ocular evidence was corroborated by medical evidence‑‑‑Occurrence was of broad daylight‑‑­F.I.R. was lodged promptly‑‑‑Case was of single accused‑‑‑Absence of enmity between the parties had excluded all possibilities of false implication or substitution‑‑‑Murder was preplanned and a brutal one‑‑‑Impugned judgment was strictly in accordance with the principles laid down by Supreme Court relating to dispensation of criminal justice and it warranted no interference‑‑‑Leave to appeal was refused to accused accordingly.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Principle‑‑‑Testimony of a witness cannot be believed or disbelieved simply for the reason that his name appears or does not appear in F.I.R.‑‑‑Real test is the instrinsic value of the testimony.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th November, 2002.

2003 S C M R 558

[Supreme Court of Pakistan

Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABID HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.63‑L of 2002, decided on 24th April, 2002.

(On appeal from the judgment dated 26‑12‑2001 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1741 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Occurrence having taken place in broad daylight in the crowded Chowk only a few yards away from the local Courts could not have gone unwitnessed and the assailants could not have escaped unidentified‑‑‑Record did not indicate any reason for the prosecution witnesses to have spared the‑ actual culprits and instead implicate the accused in, the crime‑‑‑Eye‑witnesses were natural and independent witnesses and their testimony inspired confidence‑‑‑Motive for the occurrence alleged by the prosecution also stood proved‑‑‑Conviction and sentence of accused were not open to any exception‑‑‑Leave to appeal was refused to accused by Supreme Court accordingly.

M.S. Baqir, Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioner.

Nasim Sabir Chaudhry Additional A.‑G., Punjab for the State.

Date of hearing: 24th April, 2002.

2003 S C M R 561

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

AMIR and another‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 107‑L of 2002, decided on 22nd May, 2002.

(On appeal from the judgment/order dated 16‑1‑2002 passed by Lahore High Court, Lahore in Criminal Appeal No.541 of :1996 and Murder Reference No.239 of 1996).

Penal Code (XLV of 1560)‑‑‑

‑‑‑‑Ss,302, 309 & 311‑‑‑Constitution of Pakistan (1973), Art, 18S(3)‑‑‑Father and one daughter of the deceased had entered into a compromise with the accused whereas his second daughter had opposed the same‑‑‑Compromise, therefore, was accepted only to the extent of father and one daughter of the deceased‑‑‑Since other daughter of the deceased had not accepted the compromise the accused were convicted under S.311, P.P.C. and sentenced to undergo 12 years' R.I. with the direction to pay Diyat of Rs.1,12,156.00 to the said second daughter of the deceased‑‑‑Benefit of S.382‑B, Cr.P.C. was extended to the accused‑‑‑Petition for leave to appeal was converted into appeal and disposed of in the said terms in circumstances.

Sardar Faiz Muhammad Khan Khosa, Advocate Supreme Court and Ch. Talib Hussain, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd May, 2002.

2003 S C M R 563

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

PAKISTAN RAILWAYS‑‑‑Petitioner

versus

KARACHI DEVELOPMENT AUTHORITY and others‑‑‑Respondents

Civil Appeal No.372 of 1999, decided on 22nd October, 2002.

(On appeal from the judgment dated 27‑2‑1997 _ passed in the High Court of Sindh, Karachi, in R.A.No.214 of 1992).

Karachi Development Authority Order (P.O. 5 of 1957)‑‑‑

‑‑‑‑Arts. 3, 4, 8 & Sched., para. 1‑‑‑Constitution of Pakistan (1973), Art. 184(1)‑‑‑Original jurisdiction of Supreme Court‑‑‑Dispute as to ownership of land between Pakistan Railways and the Karachi Development Authority‑‑‑Nature‑‑‑Karachi Development Authority being a "local authority" and a distinct entity separate from the Provincial Government was not a Department of the Government and land claimed by the Authority was not a Government land‑‑‑Dispute over such land between Pakistan Railways and the Authority thus could not be treated to be a dispute between the Federal Government and the Provincial Government so as to attract the exclusive original jurisdiction of Supreme Court under Art. 184(l), Constitution of Pakistan (1973).

Muhammad Rashid Bhatti v. K.D.A. through its Secretary and another PLD 1986 Kar. 130; Karachi Development Authority v. Province of Sindh through the Secretary, Excise and Taxation Department, Karachi and 4 other PLD 1977 Kar. 152; Pakistan through Secretary Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37; Chief Secretary, Government of the Punjab, Lahore v. Commissioner of Income‑Tax, Lahore Zone, Lahore, PLD 1976 Lah. 258 and State of Bihar v. Union of India and another AIR 1970 SC 1446 ref.

Ch. Shahid Saeed, Advocate Supreme Court for Appellant.

Hafiz Abdul Baqi, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd October, 2002.

2003 S C M R 567

[Supreme Court of Pakistan] .

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

FAROOQ alias FAROOQAY and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Jail Petitions Nos. 176 and 215 of 2001, decided on 16th April, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar dated 20‑9‑2001 passed in Criminal Appeal No‑7 and Murder Reference No. 12 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34, 452/34 & 429/34‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑‑Occurrence had taken place in broad daylight in the house of the complainant within the sight of the inmates of the house who were natural witnesses of the occurrence‑‑‑Eye‑witnesses had narrated the occurrence in detail without any exaggeration, contradiction and discrepancy‑‑‑No enmity existing between the parties, substitution of the accused with the real culprits was out of question‑‑‑Defence plea taken by accused was not supported by any direct or circumstantial evidence‑‑‑Collective role of firing at the deceased having been attributed to accused, non‑specification of injuries to them could not be a mitigating circumstance in their favour‑‑‑Convictions and sentences of accused having been based on sound principles of criminal administration of justice did not warrant any interference‑‑­Leave to appeal was refused to accused by Supreme Court in circumstances.

Ghulam Ahmed, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 16th April, 2002.

2003 S C M R 573

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

AFZAAL AHMED ---Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 124-L of 2002, decided on 18th April, 2002.

(On appeal from the judgment dated 8-1-2002 passed by Lahore High Court in Criminal Miscellaneous No.7112-B of 2001).

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3/4---Appreciation of evidence---Police witnesses ---Credibility--­Members of police force are competent witnesses in the eyes of law and can be credited with veracity unless they are demonstrated to be false witnesses having maliciously accused an innocent person of the commission of an offence for ulterior motives.

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

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Constitution of Pakistan (1973), Art. 185(3)---Bail---Complainant Inspector and other members of the police party were not shown to have any ulterior purpose in involving the accused in the offence---Accused being allegedly responsible for spreading a deadly poison i.e., narcotics in the society did not qualify for the grant of any discretionary relief in the absence of the reasons making his case one of further inquiry mentioned in S.497(2), Cr.P.C.---Taking a sample of one gram from the quantity of heroin allegedly recovered from the accused was not fatal to the prosecution case as it was not established through evidence that such a quantity of narcotics had not been taken from the recovered quantity or that it was not sufficient for a proper analysis of the same---Non-conviction of the accused in the past for any crime, by itself, was no ground to release him on bail---Leave to appeal was refused to accused by Supreme Court in circumstances and bail was declined to him accordingly.

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

----S.497---Bail---Offence not falling within the prohibitory clause---Mere fact that an offence does not fall within the prohibitory clause of S.497(1), Cr.P.C. does not mean that it has become a bailable offence ---Discretion still remains with the Court to consider whether a person accused of such an offence does or does not deserve the grant of bail in accordance with the established norms governing the exercise of such a power.

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

----Ss.497/498---Bail---Accused a previous non-convict---Mere non­-conviction of an accused person in the past for any crime is no ground, by itself, to release him on bail.

Syed Zahid Hussain, Bokhari, Advocate Supreme Court and Syed Abu-AI-Asim Jafri, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 18th April, 2002.

2003 SCMR 576

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

LAL MUHAMMAD and another‑‑‑Appellants

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Civil Appeal No.558 of 1998, decided on 16th October, 2002.

(On appeal from the order, dated 23‑9‑1997 in Civil Petition No. D‑155 of 1996 passed by the High Court of Sindh Bench at Sukkur).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.185 & 199‑‑‑Appeal to Supreme Court‑‑‑Dispute as to grant of land‑‑‑Both the parties had approached the Authorities for the grant of land with unclean hands and had practiced fraud upon the Land Grant Authorities and misrepresented the facts with regard to their eligibility‑‑‑Effect‑‑‑Held, none of the parties could be allowed to take advantage of its wrong, fraud and misrepresentation‑‑‑All orders passed by Revenue Authorities and judgment of High Court passed in Constitutional jurisdiction were set aside by the Supreme Court with a direction to the Land Grant Authority to dispose of the land in dispute afresh in accordance with Land Grant Policy.

Ali Akbar, Advocate Supreme Court for Appellants.

Suleman Habibullah, Additional A.‑G., Sindh for Respondents Nos. 1 to 5.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Respondents Nos.6 and 7.

Date of hearing: 16th October, 2002.

2003 S C M R 579

[Supreme Court of Pakistan]

Presence Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir

Muhammad Khokhar, JJ

AZIZ MUHAMMAD ‑‑‑Petitioner

Versus

QAMAR IQBAL and others‑‑‑Respondents

Criminal Petition No. 110‑L of 2001, decided on 22nd May, 2002.

(On appeal from the judgment order, dated 23‑1‑2001 passed by Lahore High Court, Lahore in Criminal Revision No.280 of 1994).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.403‑‑‑Constitution of Pakistan (1973), Arts. 13 & 185(3)‑‑‑Accused were arrested on 12‑2‑1985 and sentenced to death by Military Court, accused remained in Death Cell till 10‑12‑1991‑‑‑On appeal the case was remanded to Sessions Court for retrial which convicted the accused under S.302/34, P.P.C. on 28‑4‑1994 and sentenced them to imprisonment for life each with benefit of S.382‑B, Cr.P.C.‑‑‑Accused during the period of retrial of the case continuously remained under incarceration and after availing the benefit of S.382‑B, Cr.P.C. had been released from jail‑‑‑Since the accused had served out the substantial/legal sentence for the offence of murder, they could not be awarded another sentence for the same offence in violation of Art. 13 of the Constitution and S5.403, Cr.P.C.‑‑‑Leave to appeal was refused by Supreme Court accordingly.

Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302 and Mst. Promilla and others v. Safeer Alam and others 2000 SCMR 1166 ref.

Talib H. Rizvi, Senior Advocate Supreme Court and C. M. Latif, Advocate‑on‑Record for Petitioner.

Abdul Rauf Farooqui, Advocate Supreme Court for the State.

Date of hearing: 22nd May, 2002.

2003 S C M R 581

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ, MEHMOOD RASHID and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.415 and 416 of 1999, decided on 6th November, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 2‑6‑1998 passed in Criminal Appeals 389 and 402 of 1992, Murder Reference 295 and Criminal Revision 472 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑ Ss.302/34, 307/34 & 449‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Contentions were that whether the testimony of the servants of the deceased whose enmity with the accused stood established on record could form the basis for awarding capital punishment without any independent corroboration; that whether question of identification of accused would need a probe when the occurrence had taken place at night and the prosecution had not disclosed any source of light at the scene of occurrence that whether the complainant could save himself from being injured when Kalshnikovs were used in a room as a result of which six persons had received injuries; that whether the plea of alibi raised by accused had rightly been rejected in the presence of‑cogent evidence on record in that regard and whether the act of accused being under the influence of his father would not justify the award of capital punishment‑‑‑Leave to appeal was granted to accused for reappraisal of evidence to consider the said contentions.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss.302/34, 307/34 & 449‑‑‑Corroboration‑‑‑Appraisal of evidence‑‑‑Rule of independent corroboration is not an absolute and mandatory rule to be applied in each case, rather it is a rule of abundant caution which is applied in the cases in which the direct evidence is not of the standard which alone can be considered sufficient for conviction.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34, 307/34 & 449‑‑‑Appraisal of evidence‑‑‑Sentence, reduction in‑‑‑Occurrence having taken place at the Dera of the complainant, presence of his employees there was natural and neither their independence could be doubted nor any adverse inference could be drawn to the truthfulness of their evidence‑‑‑Contention regarding non‑availability of light at the Dera of the complainant and taking place of the occurrence in the dark was based on mere imagination‑‑‑Possibility of the complainant having not been hit by chance at the time of occurrence, could not be ruled out and his presence at the spot could not be doubted for mere such reason, nor the direct evidence of the injured witnesses could be disbelieved on that account‑‑‑Injured eye­witnesses had categorically stated that the complainant was present at the spot and the accused had actively participated in the occurrence‑‑‑Giving of each detail regarding the causing of specific injuries to the deceased and the witnesses by the accused was not possible in the given situation and such omission would have no material effect on the prosecution case in any manner‑‑‑Convictions of accused on all the charges on all counts were consequently maintained‑‑‑Accused had acted on the instigation of his father and was behind the bars for the last 16 years and in the death cell for the last about 10 years, sentence of death awarded to him on three counts was reduced to imprisonment for life with the direction to run all sentences concurrently in circumstances‑‑‑Benefit of S.382‑B, Cr.P.C. was refused to accused in view of the seriousness of the occurrence in which three persons had lost their lives and other three had sustained injuries at the hands of accused and his co‑accused.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal 415 of 1999).

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants. (Criminal Appeal 416 of 1999).

Kh. Sultan Ahmed, Advocate Supreme Court for the Complainant.

Nemo for the State.

Date of hearing: 6th November, 2002.

2003 S C M R 589

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

KATA MIR and others‑‑‑Appellants

Versus

Mst. SHO BEGUM and others‑‑‑Respondents

Civil Appeals Nos.788 and 789 of 1997, decided on 17th October, 2002.

(On appeal from the judgment/order, dated 9‑6‑1996 passed by Peshawar High Court, Peshawar in Civil Revisions Nos. 189 and 190 of 1993).

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

‑‑‑‑Ss.58 & 60‑‑‑Limitation Act (IX of 1908), Art.148‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Mortgage‑‑‑Redemption‑‑‑Leave to appeal was granted by the Supreme Court to consider the contentions of the petitioners that the Courts below erred in holding that mutation whereby additional mortgage amount was secured from the mortgagees was a novation of the mortgage agreement and as such fresh period of 60 years would be counted from such date and there being two mutations on the same date, first mutation being mutation "ﻞﻴﻤﻛﺗ ﻖﻓ" and the other regarding "ﻥﻫﺮ ﺭﺰ ﻯﺪﺍﺯﻴﺍ" such redemption and attestation of fresh mutations would not amount to novation of contract.

Nazeef v. Abdul Ghaffar and others PLD 1966 SC 267 quoted.

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

‑‑‑Ss.58 & 60‑‑‑Limitation Act (IX of 1908), Art.148‑‑‑Mortgage‑‑­Redemption‑‑‑Limitation‑‑‑Creation of additional charge‑‑‑Mutations for Fakki‑e‑Takmeel and Azadi Zar Rehan‑‑‑Effect‑‑‑Such mutations would not amount to novation of contract‑‑‑Suit for redemption of the property having not been filed within the period of sixty years as per Art.148, Limitation Act, 1908, mortgagors had lost their property rights over the land in dispute and by presumption mortgagees had become owners of the land.

Nazeef v. Abdul Ghaffar and ethers PLD 1966 SC 267; Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92 and Maqbool Ahmad v. Hakoomat‑e‑Pakistan 1991 SCMR 2063 ref.

Haji Muhammad Zahir Shah, Advocate Supreme Court and Syed Safdar Hussain Advocate‑on‑Record (absent) for Appellants (in both Cases).

Muhammad Munir Peracha Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents (in both Cases).

Date of hearing: 17th October, 2002.

2003 S C M R 593

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ

MUHAMMAD ARSHAD ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.354 of 2001 out of Jail Petition No.180 of 1999, decided on 28th November, 2002.

(On appeal from the judgment dated 18‑5‑1999 passed by Lahore High Court, Lahore in Criminal Appeal No.70 of 1994 and Criminal Revision No.418 of 1994).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appraisal of evidence ‑‑‑Unimpeaehed confidence‑inspiring testimony of the complainant was corroborated on all material particulars by other eye‑witness whose presence at the scene of occurrence was quite natural being immediate inhabitant of the locality and who had no reason to falsely depose against the accused leaving the real culprit to go scot free‑‑­Ocular testimony was corroborated also by medical evidence‑‑‑Venue of occurrence had been established by the recovered blood‑stained earth‑‑­Accused had admitted the motive and after securing his release from the clutches of the deceased he could have easily escaped from the scene instead of making the targeted killing of the deceased who admittedly was empty­-handed‑‑‑Accused even did not aim or attempt at the complainant and his brother at whose hands he allegedly apprehended a danger being equipped with butcher's knives‑‑‑Conviction and sentence of death of accused were upheld in circumstances:

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Muhammad Akram, Advocate‑on‑Record for the State.

Date of hearing: 28th November; 2002.

2003 S C M R 597

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

Haji GHULAM ALI ‑‑‑Petitioner

Versus

THE STATE through A.G., N.‑W.F.P., Peshawar and another‑‑‑Respondents

Criminal Petition No. 101 of 2002, decided on 10th June, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 22‑3‑2002 passed in Criminal Miscellaneous No. 17 of 2001).

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

‑‑‑‑Art. 199‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9(b)‑‑‑Bail‑‑‑Constitutional jurisdiction of High Court‑‑‑High Court has the power to grant bail in NAB cases under its Constitutional jurisdiction and an accused of an offence under the NAB Ordinance, 1999, can take any ground for grant of bail on the basis of which bail can be granted under S. 497, Cr.P.C.

Muhammad Saeed Mehdi v. State PLD 2002 Lah. 124; Khan Asfand Yar Wali v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD S C 607 and Ch. Zulfiqar Ali v. State PLD 2002 SC 546 ref.

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

‑‑‑Arts. 199 & 185(3)‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss.9/10‑‑‑Criminal Procedure Code (V of 1898), S.497‑‑‑Bail‑Accused could not under the law maintain a bail application before the High Court under S. 497, Cr.P.C.‑‑‑High Court, however, was competent to entertain the bail application in its jurisdiction under Art. 199 of the Constitution‑‑‑Trial of the case eras in progress and the prosecution still intended to examine some of its witnesses‑‑‑Trial Court, in circumstances, was directed to conclude the trial within four months‑‑‑Accused, however, could approach the High Court in its Constitutional jurisdiction for grant of bail on any ground available to him‑‑‑Bail application of accused before the High Court under S.497, Cr.P.C. being not maintainable under the NAB Ordinance, order passed thereon was set aside‑‑‑Petition for leave to appeal was converted into appeal and allowed with the said observations.

Muhammad Saeed Mehdi v. State PLD 2002 Lah. 124; Khan Asfand Yar Wali v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Ch. Zulfiqar Ali v. State PLD 2002 SC 546 ref.

Sardar Khan, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioner.

Imtiaz Ali, Addl. A.‑G., N.‑W.F.P. and M.S. Khattak, Advocate­-on‑Record for Respondent No. 1.

Fasihul Mulk, Advocate Supreme Court for Respondent No.2.

Date of hearing: 10th June, 2002.

2003 S C M R 604

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

ZULFIQAR ALI and others‑‑‑Appellants

Versus

MUHAMMAD AKBAR KHAN and others‑‑‑Respondents

Civil Appeals Nos.102, 754 and 755 of 2000, decided on 28th October, 2002.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 23‑2‑2000 passed in Civil Revisions Nos.457 and 381 of 1986).

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

‑‑‑‑O.XXIII, R.3‑‑‑Dispute as to property‑‑‑Consent decree passed against the owner of the property was collusive and fraudulent‑‑‑Effect‑‑‑Every subsequent transaction based on such decree was also of no legal consequence against the ownership of the property of the person against whom such decree was, passed and he continued to be the owner of the property.

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

‑‑‑‑Art.185‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal to Supreme Court was barred by 73 days‑‑‑Application for condonation of delay‑‑‑Sufficient ground‑‑‑Explanation given in the application for condonation was that the certified copies of the documents issued by the High Court for filing the appeal were dim and the said delay was caused because better copies were to be prepared to tile them before the Supreme Court as the Supreme Court usually did not accept dim copies‑‑‑Validity‑‑Such could not be held to be a good ground much less sufficient ground recognized by law for condonation of delay‑‑‑Each and every day's delay was to be explained which had not been done in the present case‑‑‑Appeal was dismissed in circumstances.

Ch. Khurshid Ahmed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants (in Civil Appeal No. 102 of 2000).

Malik M. Rafique Rijwana, Advocate 'Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellants (in Civil Appeals Nos. 754 and 755 of 2000).

Gul Zarin Kiani, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents (in all Appeals).

Date of hearing: 28th October, 2002.

2003 S C M R 608

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

AMANAT ALI ‑‑‑ Petitioner

Versus

NAZIM ALI and another-‑Respondents

Criminal Petition for Leave to Appeal No.766/L of 2001, decided on 6th June, 2002.

(On appeal from the judgment dated 19‑10‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.942 of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 306(a) & 308‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Enhancement of sentence‑‑‑Age of accused was recorded as 17 years in his statement under S. 342, Cr.P.C., meaning thereby, that he was 16 years of age at the time of commission of offence‑‑‑Accused in order to prove his minority at the relevant time had brought on record two documents prepared by the Headmaster of the School and the Doctor in their usual discharge of duty, admissibility of which should not be open to any objection‑‑‑Even if the said documents were assumed to be not liable to be taken into consideration, still in view of the discrepancy on the question of age of accused i.e., recorded in his statement under S. 342, Cr.P.C. and as per the documents brought on record, benefit of same would go him‑‑‑Leave to appeal was declined to the complainant by the Supreme Court in circumstances.

Anar Gul v. The State through Advocate‑General, N.‑W.F.P. and another 1999 SCMR 2203; Muhammad Afzal alias Seema v. The State 1999 SCMR 2283 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

Ch. Arshad Mahmood, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Munir Ahmed Bhatti, Advocate Supreme Court with Muhammad Aslam Ch. Advocate‑on‑Record for Respondent No. 1.

Date of hearing 6th June, 2002.

2003 S C M R 611

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ

LIAQAT HUSSAIN and others‑‑‑Petitioners

Versus

FALAK SHER and others‑‑‑Respondents

Criminal Petitions Nos.64‑L and 65‑L of 2002, decided on 11th July, 2002.

(On appeal from the judgment of the Lahore High Court Lahore dated 3‑12‑2001 in Criminal Appeal No.6‑J of 1996 and order dated 3‑12‑2001 in Criminal Appeal No. 167 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 392/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Appeal against acquittal‑‑‑Eye‑witnesses including the complainant had failed to furnish a plausible and acceptable explanation for being present on the scene of occurrence and were chance witnesses‑‑‑Prosecution case did not inspire confidence and fell for short of sounding probable to a man of reasonable prudence‑‑‑Abscondence of accused in such circumstances could not offer any useful corroboration to the case of prosecution‑‑‑High Court had rightly expressed doubt about the availability of the crime empty at the place of occurrence when only one shot had been fired from a gun‑‑‑Acquittal of accused by the High Court was neither preverse nor whimsical‑‑‑Leave to appeal was refused to the complainant by the Supreme Court in circumstances.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302/34 & 392/34‑‑‑Appreciation of evidence ‑‑‑Abscondence‑‑­Effect‑‑ Disappearance of an accused person can ordinarily offer useful corroboration to the prosecution case only when it is reasonably believable to some extent and requires some corroboration for its proof.

Ch. Irshad Ullah Chattha, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 11th July, 2002.

2003 S C M R 616

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

USSAMA TARIQ‑‑‑Appellant

Versus

ADMINISTRATOR (RESIDUAL PROPERTIES)/ADDITIONAL

COMMISSIONER (REVENUE) LAHORE DIVISION, LAHORE and 3

others‑‑‑Respondents

Civil Appeal No.640 of 1995. decided on 9th April, 2002.

(On appeal from the judgment dated 6‑7‑1993 of the Lahore High Court, Lahore passed in Writ Petition No.99‑R of 1993).

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

‑‑‑‑Ss. 2(2)(3) & 4‑‑‑Displaced Persons (Land Settlement). Act (XLVII of 1958). S.4‑‑‑Scheme for Management and Disposal of Available Urban Properties, 1977, Paras. 1(c) & 6‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Jurisdiction of Notified Officer‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court to consider whether order passed under Repealed Settlement Laws after conscious application of mind by Competent Authorities which having attained finality had become a past and closed transaction could be re‑opened and set aside by Deputy Administrator, Residuary Property, who had a limited authority with regard to available property: and whether he could, sit on judgment of Settlement Authorities having not been challenged before the forum in the hierarchy.

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

‑‑‑‑Ss. 2(2)(3) & 4‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S.4‑‑‑Scheme for Management and Disposal of Available Urban properties, 1977, Paras 1, 6 & 13‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Jurisdcition of Notified Officer to re‑open matter having attained finality under Repealed Settlement Laws‑‑‑Scope‑‑­Agricultural land along-with house constructed thereon was allotted in year 1961 in favour of predecessor‑in‑interest of appellant‑‑‑Respondent while in possession of house as tenant applied for its allotment in year 1981 under Scheme for Management and Disposal of Available Urban Properties‑‑­Deputy Administrator (Residual Properties) finding the house still available for disposal transferred same to respondent‑‑‑Revision petition filed by appellant before Administrator (Residual Properties) as well as Constitutional petition before High Court were dismissed‑‑‑Validity‑‑‑Record did not show that either the land or house constructed thereon had ever been treated as an independent property to that of agricultural land transferred to original allottee‑‑‑Possession of house as part of agricultural land had remained with its allottee since its allotment without any interruption‑‑‑In absence of an express order to the contrary, presumption would be that house had been transferred as part of agricultural land‑‑‑Non‑production of RL‑II in original during enquiry before Deputy Administrator (Residual Properties), but its placing on record during proceedings before Administrator (Residual Properties) would not be valid ground to suggest that same was a forged document‑‑‑Issue of genuineness or otherwise of RL‑II in question having not been raised before Settlement Authorities or Notified Officer could not be allowed to be taken in appeal before Supreme Court‑‑‑Deputy Administrator (Residual Properties) had travelled beyond his jurisdiction to re‑open allotment of land made under Displaced Persons (Land Settlement) Act, 1958 and give declaration that disputed house was an independent unit and was not part of agricultural land, but was available for transfer to respondent under such Scheme‑‑‑Supreme Court accepted appeal and set aside impugned orders being without lawful authority.

Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 and Muhammad Ramzan v. Member (Rev.) 1997 SCMR 1635 ref.

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

‑‑‑‑Ss.2 & 4‑‑‑Displaced Persons (Land‑Settlement) Act (XLVII of 1958), S.4‑‑‑Scheme for Management and Disposal of Available Urban Properties, 1977, Paras 1(c) & 6‑‑‑Jurisdcition of Notified Officer to re‑open allotments made under Repealed Settlement Laws or questions the genuineness thereof under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975‑‑­Scope.

Jurisdiction of Notified Officer would be limited under Evacuee Property and Displaced Persons Laws (Repeal) Act; 1975 as under section 2(2) of the Act. Notified Officer except completion of residual work was not competent to extend his jurisdiction to any, property not available for disposal under Scheme for Management and Disposal of Available Urban Properties; Notified Officer under such Scheme would definitely be authorised to dispose of available property on the basis of possession, but he would have no jurisdiction to go into the question of legality or, otherwise of an allotment made by Settlement Authorities under Evacuee Laws before the repeal of such laws by virtue of Evacuee Property and Displaced Persons (Repeal) Act, 1975 where such an allotment had attained finality.

Under section 4 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, Notified Officer is empowered to dispose of residual work, but is not empowered to interfere with allotment of land, which stood finalized under Displaced Persons (Land Settlement) Act, 1958 and make a declaration regarding the nature and character of the property subject‑matter of such allotment.

It is not the function of Notified Officer to go into the genuineness or otherwise of an allotment made under Displaced Persons (Land Settlement) Act, 1958 and re‑open the past and closed transaction under the garb of his power under Evacuee Property and. Displaced Persons Laws (Repeal) Act, 1975 which had already been disposed of by Settlement Authorities under Settlement Law and which are not subject‑matter of pending proceedings as same would no more be liable to be dealt with on any ground under the repealed Act and Scheme of Management and Controls of ,Available Properties.

Muhammad Hussain Awan, Advocate Supreme Court and Muhammad Aslam Ch. Advocate‑on‑Record (absent) for Appellant.

Respondents Nos. 1. 2 and 4: Ex parte.

Ch. Khurshid Ahmed Khan, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate‑in‑Record (absent) for Respondent No.3.

Date of hearing: 9th April, 2002

2003 S C M R 626

[Supreme Court of Pakistan]

Present: Abdur Rahman Khan and Qazi Muhammad Farooq, JJ

MUHAMMAD HANIF‑‑‑Petitioner

Versus

S. P., LAHORE and others‑‑‑Respondents

Civil Petition No. 1539‑L of 1998, decided on 20th November, 2000.

(On Appeal from the order, dated 3‑7‑1998 of the Punjab Service Tribunal passed in, Appeal No. 517 of 1995).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service ‑‑‑Absence from duty‑‑‑Plea of illness‑‑‑Failure to appear before authorized medical officer‑‑‑Civil servant was a police constable and remained absent from duty without leave‑‑‑Reason advanced by him for his absence was his illness‑‑‑Competent Authority rejected the Medical Certificates produced by the civil servant on the ground that he failed to appear before the authorized Medical Officer and had not kept a constant link with his Department to avoid the possibility of any communication gap‑‑‑Service Tribunal dismissed the appeal filed by the civil servant‑‑­Plea raised by the civil servant was that the Medical Certificates could not be rejected summarily by the Authorities‑‑‑Validity‑‑‑Reasons given for dismissal of appeal of the civil servant were justified‑‑‑Leave to appeal was refused.

M. Anwar Ghuman, Senior Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th November, 2000.

2003 S C M R 627

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

Mst. SARDARAN and others‑‑‑Petitioners

Versus

SULEMAN and another‑‑‑Respondents

Civil Petition No.3418‑L of 2001, decided on 27th March, 2002.

(On Appeal from .the judgment, dated 3‑10‑2001 in Civil Revision No. 1796 of 1993 and 22‑10‑2001 in Review Petition No. 64/C of 2001 passed by the Lahore High Court, Lahore).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.27‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Additional evidence‑‑‑Relationship of parties‑‑‑Proof‑‑‑Unattested copy of form of national identity card‑‑‑Application for additional evidence was dismissed by Appellate Court on the ground that the entries on the form of national identity card had been mutilated and certain matters were not clear‑‑‑Order of Appellate Court was maintained by High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Copy of the form produced in evidence was not certified copy issued by the concerned Department but was a document produced by the petitioners from their own possession, therefore, such document could not be allowed to be produced in evidence which had no authenticity‑‑‑Findings of facts recorded by all the Courts below against the petitioners regarding relationship did not suffer from misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was refused.

M. Aslam Sandhu, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of rearing: 27th March, 2002.

JUDGMENT

MUNIR A. SHEIKH, J.‑This petition is directed against the judgment dated 3‑10‑2001 of the Lahore High Court through which revision petition filed by the petitioners to challenge concurrent findings of facts of the two Courts below has been dismissed.

1. The dispute relates to inheritance of Meharban son of Imam Din. He died in the riots. during partition of the sub‑continent. He had land in India in respect of which claim was filed by Mst. Jainan deceased predecessor‑in‑interest of the present petitioners who was his paternal aunt. It was verified against which the land in dispute was mutated in favour of Mst. Jainan through Mutation No.74 dated 17‑1‑1957 from entries of which it appears that she was shown to be widow of Meharban. Suleman and Mst. Bashiran Bibi respondents filed civil suit to the year 1976 for declaration that they being son and widow of Meharban were entitled to inherit his, property as such the said mutation sanctioned in favour of Mst. Jainan as paternal aunt was ineffective against their rights. Evidence was led by both the parties.

2. The trial Court after considering the evidence elaborately through judge of dated 31‑7‑1993 decreed the suit of the respondents. The appeal filed by the petitioners was dismissed by the First Appellate Court through judgment dated 14‑11‑1993 against which revision petition filed by them has also been dismissed through judgment dated 3‑10‑2001 impugned in this petition. A review petition filed by the petitioners was also dismissed by the learned Judge in Chambers of the High Court on 22‑10‑2001. In this petition, the legality of the said order has also been sought to be challenged.

3. Before the First Appellant Court, the petitioners filed an Application under Order XLI, rule 27, C.P.C. for permission to produce additional evidence in the form of copy of the national identification form of Mst. Bashiran, Muhammad Ramzan and Abdul Ghafoor which was dismissed on the ground that entries on the said form had been mutilated and certain matters were not clear. It was not certified copy of the said form issued by the concerned department but was a document produced by the petitioners from their own possession, therefore, such a document could not be allowed to be produced in evidence which had no authenticity.

4. The findings of facts recorded by all the Courts below against the petitioners that Suleman was son of Meharban and Mst. Bashiran his widow, have not been shown to have suffered from misreading or non­-reading of any material piece of evidence, therefore, this petition has no merits which, is accordingly dismissed and leave refused.

Q. M. H./S‑200/S Petition dismissed.

2003 S C M R 629

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Mst. BADSHAH BEGUM and others‑‑‑Appellants

Versus

THE ADDITIONAL COMMISSIONER (R.), LAHORE DIVISION and

others‑‑‑Respondents

Civil Appeals Nos.1181 and 1410 of 1995, decided on 5th June, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 6‑12‑1993 passed in Writ Petition No.28/R of 1979).

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

‑‑‑‑S. 2(2)‑‑‑Settlement Scheme No. VIII, para. 7(a)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to examine the contention that High Court while remanding the case to the Board of Revenue/Chief Settlement Commissioner failed to take into consideration that the application filed by the respondent for re-opening of the case was made on 30‑10‑1974 after the repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1958 by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which came into effect on 1‑7‑1974 and thus, said application, could not be treated as pending case within the scope of S.2 of the Repealing Act so as to give jurisdiction to the Board of Revenue to re­open the case.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974)‑‑‑

‑‑‑‑S. 2(2)‑‑‑Jurisdiction of Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act. 1975‑‑‑Scope and extent‑‑­"Pending cases"‑‑‑Categories‑‑‑Notified Officer was not competent to re­open the matter finalized under the relevant statute before the repeal of evacuee laws‑‑‑Case which was not "pending" before any forum in terms of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 would not be treated as such under the orders of any authority or Court arising in consequence to the proceedings initiated subsequent to the repeal of evacuee laws and thus despite remand of the case to the Notified Officer by the High Court, the limits of his power under the law would not be extended to the cases which had attained finality under the statute‑‑‑If an Authority had no jurisdiction in the matter under the law, the jurisdiction could not be conferred on the said Authority by an order of the Court‑‑‑Principles.

The disputed plots in the present case, were part of evacuee land situated adjacent to the Headquarters Sutlaj Rangers. Pakistan Rangers being in need of land for construction of Headquarters of Sutlaj Rangers, approached the Settlement and Rehabilitation Department, for transfer of the land for the use of Pakistan Rangers and the Chief Settlement and Rehabilitation Commissioner, West Pakistan, vide letter, dated 25‑5‑1970 accorded sanction for the sale of aforesaid land to Pakistan Rangers in exercise of his powers under section 12(b) of the Displaced Persons (Land Settlement) Act, 1958 and in pursuance thereto, the tentative sale price was paid to the Settlement and Rehabilitation Department by the Executive Engineer, Provincial Building ,Circle. Subsequently, the concerned Authorities in the Rangers Headquarters, including the husbands of the transferees, who at the relevant time, were Headquarters communicated to the Settlement Department that the land was not required by the Pakistan Rangers and sought refund of the sale price already deposited. The claim of Pakistan Rangers, respondents herein, was that in pursuance of the sanction Chief Settlement Commissioner vide letter dated 25‑5‑1970, the tentative price was deposited therefore, the property was no more part of compensation pool to be available for transfer. The plots in question being in possession of the transferees were transferred to them as building site on the applications submitted by them on BS Forms under Settlement Scheme No.VIII, on the basis of report submitted by the Settlement Inspector according to which some construction was in existence at the spot and plots in possession of transferees were also available for transfer, The above factual position was further verified by the Deputy Settlement Commissioner (Plots) through spot inspection before transfer of these residential plots to the transferees. The transfer of the plots as building sites under Settlement Scheme No.VIII remained unchallenged before the Settlement Authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 before the repeal of evacuee laws w.e.f. 1‑7‑1974 by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 and after repeal of evacuee laws, the Deputy Settlement Commissioner (Plots) in his capacity as Notified Officer appointed under repealing Ordinance, 1974 proceeded to cancel the transfer of plots in question vide order, dated 30‑10‑1974.

The Member, Board of Revenue on remand of the case by the High Court entrusted it to the Additional Commissioner (Revenue), who in exercise of his powers as Chief Settlement Commissioner, while disposing of the case vide order, dated 31‑8‑1978 observed that after repeal of evacuee laws by virtue of Evacuee Property Displaced Persons (Repeal) Ordinance, 1974, the Deputy Settlement Commissioner (Plots) was not competent to transfer of plots Rehabilitation) Act, 1958 was without jurisdiction.

The Pakistan Rangers challenged this order before the High Court through writ petition and High Court by allowing the writ petition again sent the case back to the Member, Board of Revenue/Chief Settlement Commissioner for its decision by the Notified Officer.

Jurisdiction of Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 would confine only to the extent of pending cases of the categories mentioned in section 2(2) of the Act of 1975. The first category of the cases was which were pending before Settlement Authorities and second category was of the cases which were pending before the Courts at the time of repeal of evacuee laws in which the orders of the Settlement Authorities were under challenge. The cases which were neither pending before the Settlement Authorities nor before the Courts and in which the orders passed were not challenged, set aside or recalled under the provisions of the relevant statute, would not, by virtue of an order passed by any Court or Authority after repeal, be covered by the provisions of section 2(2) of the Ordinance, 1974 (Act XIV of 1975), and therefore, the Notified Officer appointed under the repealing Ordinance, 1974 (Act XIV of. 1975) would not be competent to re‑open the matter finalized under the relevant statute before the repeal of evacuee laws. In the present case, the Notified Officer in exercise of his powers as Deputy Settlement Commissioner, after repeal of evacuee laws w.e.f. 1‑7‑1974, while retracing his steps cancelled the transfers of plots made under Displaced Persons (Compensation and Rehabilitation) Act, 1958 and since the orders by virtue of which the plots in question were transferred by the Deputy Settlement Commissioner to the transferees were not under challenge before any forum at the time of repeal of evacuee laws, the cancellation of plots by the Notified Officer subsequent to repeal of evacuee laws was held without jurisdiction by the High Court but for some misconception of law on the subject, remanded the case to the Member, Board of Revenue for its decision by the Notified Officer, and the Chief Settlement Commissioner on remand, having examined the question of jurisdiction, showed his inability to proceed in the matter. High Court in the second round of litigation, without dilating upon the important legal question relating to the jurisdiction of Notified Officer and "the nature of cases falling within the purview of section 2(2) of repealing Ordinance 1974, sent the case back to the Notified Officer for decision after hearing the parties without realizing that Notified Officer had no jurisdiction to adjudicate the matter. A case which was not pending before any forum in terms of subsection (2) of section 2 of the repealed Ordinance, 1974 (Act of 1975) would not be treated as such under the orders of any authority or Court arising in consequence to the proceedings initiated subsequent to the repeal of evacuee laws and thus despite remand of the case to the Notified Officer by the High Court, the limit of his power under the law would not be extended to the cases which had attained finality under the statute. If an authority has no jurisdiction in the matter under the law, the jurisdiction cannot be conferred on said authority by an order of the Court.

In consequence to the sanction accorded by the Chief Settlement Commissioner for the sale of land in favour of a person and deposit of the sale price the property would no more be available for transfer to any other person but in the present case, the tentative price deposited was subsequently withdrawn and the proposal of purchase of land was dropped, therefore, the land would remain part of compensation pool and would be available for transfer. After issuance of documents of title, the Settlement Authorities became functus officio and property on the basis of documents of title would exclusively vest in transferee and the transfer of evacuee property on attaining finality, would go out of the compensation pool and would be no longer subject to the suo motu exercise of jurisdiction by the Settlement Authorities under the relevant statute. In the present case, the transfer of plots in favour of the transferees attained finality on repeal of evacuee laws w.e.f. 1‑7‑1974 and the Notified Officer had no power to interfere in the transfer of plots made under Settlement Scheme No. VIII in exercise of jurisdiction as Deputy Settlement Commissioner in the matter under Displaced Persons (Compensation and Rehabilitation) Act, 1958. The provisions of subsection (2) of section 2 of Displaced Persons Laws (Repeal) Ordinance, 1974 (Act XIV of 1975) would only authorize the Notified Officer to deal with the cases which were pending before the different forums of competent jurisdiction in which the allotment/transfer was not finalized or the claim was not yet finally adjusted or that the authority which passed the order before the repeal of evacuee laws had no jurisdiction or the authority proceeded by misconstruing the legal and factual position in contravention of law or rules applicable at the relevant time and in such a case, the order would be open to scrutiny and would not attain finality due to inherent defect of jurisdiction of the authority passing the order. It was not the case at any stage of the litigation that the Deputy Settlement Commissioner (Plots) had no authority to pass the order of transfer of plots in favour of the transferee or that the transfer was made without determining the entitlement of transferees under the scheme prepared under relevant statute and thus the crucial question to decide the fate of the case would be that of the finality attached to the order of transfer of land passed by the competent authority under Displaced Persons (Compensation and Rehabilitation) Act, 1958. The subsequent order passed by the Notified Officer through which the plots from the names of the transferees were cancelled after repeal of evacuee laws being without jurisdiction, would be a void order and non‑existent in the eyes of law and all subsequent orders based on a void order would have no legal effect. Transfer of plots in favour of transferees made by the Deputy Settlement Commissioner under Scheme No.VIII being not suffering from jurisdictional or any other legal defect, was legal and valid which could not be interfered by the Notified Officer in exercise of his powers of Deputy Settlement Commissioner under Evacuee Property (Displaced Persons) Repeal Laws Ordinance, 1974 and the interference of High Court in the order of Chief Settlement Commissioner which was challenged in the writ petition, would amount to perpetuate the illegal and unjust order of Notified Officer.

It was not the case that allotment was obtained through practising fraud in the Settlement Department or that at the relevant time, the case was pending before any forum of competent jurisdiction or that the finality was not attached with the transfer order passed by the Deputy Settlement Commissioner and the transfer was yet to‑be, finalized under the relevant statute. The transfer order in the present case, certainly attained finality on repeal of evacuee laws, therefore, the Notified Officer would have no jurisdiction to interfere in the transfer under the repealing Ordinance, 1974 (Act XIV of 1975) and the only exception to above legal position, would be in case where the property had not been transferred by the competent authority, the same on repeal would be deemed to be available under section 3 of the repealing Act, 1975 and an order passed in respect of the property would not attain finality under the relevant statute.

The law has defined limits of the power of Notified Officer under the relevant statute and if the limit of jurisdiction of an authority is prescribed in the statute, the same cannot be enlarged or curtailed by an order of the Court therefore, the High Court in exercise of its power of judicial review could not confer jurisdiction to the Notified Officer which was not available to him under the statute. The jurisdictional bar under the statutes can only be removed through the statutory law and there being no concept of hypothetical jurisdiction in law, the authority which does not enjoy the power should not proceed on the assumption of jurisdiction and defeat the purpose of law. High Court without attending to this important aspect of the matter, allowed the writ petition and remanded the case to the Member, Board of Revenue on the assumption that Notified Officer was competent to exercise jurisdiction in the matter under the relevant statute.

The land in the present case was transferred as available property by the Deputy Settlement Commissioner in proper exercise of jurisdiction through a valid and legal order and the subsequent order passed by the Notified Officer by virtue of which the allotment of the plots was cancelled, was patently an illegal order which was passed without jurisdiction. Transferees of the land having constructed houses on the plots transferred to them, were residing there since 1973 and had acquired a valuable right in the property, therefore, their dislocation at this stage merely on the technical ground that their husbands were responsible for dropping the proposal of purchase of land by the Pakistan Rangers, would defeat the concept of equitable justice.

At the relevant time, the Notified Officer had no jurisdiction to interfere in the matter either under Displaced Persons (Compensation and Rehabilitation) Act, 1958 or under Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (Act XIV of 1975) and Supreme Court, while declaring the order passed by the Notified Officer exercising the powers of Deputy Settlement Commissioner (Plots) as without lawful authority, set aside the judgment of the High Court.

Muhammad Din v. Ghulam Muhammad Naseem Sindhu PLD 1991 SC 1 and Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

(c) Jurisdiction‑‑‑

‑‑‑‑ If an Authority has no jurisdiction in the matter under the law, the jurisdiction cannot be conferred on said Authority by an order of the Court.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Discretionary in nature‑‑‑Judicial review‑‑‑Concept and scope‑‑‑Principles.

The concept of the judicial review of the orders passed or actions taken by administrative or quasi‑judicial forum is to ensure the command of law and the supremacy of. Constitution. The writ jurisdiction is discretionary in the nature which can be invoked in the cases of patent illegality, lack of jurisdiction, the exercise of authority not vested by law and to correct any other such illegality but the scope of the judicial review is not confined only to the, extent of legal requirement rather in case of omission of equitable consideration, the Court can interfere in the matter in exercise of the powers of judicial review. The object of the superior Courts while exercising the discretionary jurisdiction is to protect the rights and undo a wrong‑done in law and faster justice and keeping in view this object, the Court may in equity set aside or annul a void order.

Where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action beyond the sphere allotted to the tribunal by law and therefore, outside the area within which the law recognizes a privilege to err', then such action amounts to a usurpation of power unwarranted by law' and such an act is a nullity; that is to say, the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.185 & 187‑‑‑Powers of Supreme Court under Arts 85 & 187, Constitution of Pakistan‑‑‑Sand extent.

The discretionary power of the Supreme Court under Articles 185 and 187 of the Constitution is very wide and it is obligatory for the Supreme Court to ensure that apart from the legal formalities, the equitable aspects of a matter was not violated so that the concept of doing complete justice in law and equity can be advanced.

Chittagong Chamber, of Commerce and Industry v. C.S. Ltd. PLD 1970 SC 132 ref:

Khan Muhammad Younas Khan, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellants (in Civil Appeal No. 1381 of 1995).

Sardar Muhammad Aslam, Deputy Attorney‑General with Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent No.2 (in Civil Appeal No.1381 of 1995).

Hamid Khan, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Appellants (absent) (in Civil Appeal No. 1410 of 1995).

Sardar Muhammad Aslam, Deputy Attorney‑General with Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent No. 1 (in Civil Appeal No. 1410 of 1995).

M.S. Khattak, Advocate‑on‑Record for Respondent No.6 (in Civil Appeal No. 1410 of 1995).

Date of hearing: 5th June, 2002.

2003 S C M R 647

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ

Mst. MUMTAZ BEGUM‑‑‑Appellant

Versus

GHULAM FARID and another‑‑‑Respondents

Criminal Appeal No. 40 of 1996, decided on 12th December, 2002.

(On Appeal from the judgment/order, dated 29‑11‑1994 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 56 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Chance witness‑‑‑Version of a chance witness can be accepted to be true if his presence at the place of incident is not doubtful‑‑‑Where Court intends to draw adverse inference about the presence of such witness at the time of incident, then it shall have to find out strong corroboration to his statement in order to make it admissible.

Javed Ahmad alias laida v. The State and another 1978 SCMR 114; Muhammad Ahmad and another v. The State and others 1997 SCMR 89 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Appeal against acquittal of accused by High Court‑‑‑Both the eye‑witnesses including the complainant had seen the accused giving a Chhuri blow on the front side of the chest of the deceased as a result of which he died‑‑‑After the prosecution had discharged its initial burden of establishing offence against the accused, he was bound to establish his plea of committing the murder of the deceased under sudden and grave provocation, which he had failed to do ‑‑‑Abscondence of accused from the place of occurrence itself was a ground to conclude that he had committed the cold‑blooded murder of the deceased on account of previous altercation between them and it had strengthened the prosecution case which was based on convincing and coherent evidence‑‑‑Reasons assigned by the High Court for recording acquittal of accused were not acceptable and the impugned judgment was set aside‑‑‑Happening of an incident prior to the main incident was a factor for bringing the case of accused under S.302(b), P.P.C.‑‑‑Accused was consequently convicted under S.302(b), P.P.C. and sentenced to imprisonment for life in circumstances with, direction to pay Rs.50,000 as compensation to the legal heirs of the deceased‑‑­Appeal against acquittal of accused was accepted accordingly.

Javed Ahmad alias Jaida v. The State and another 1978 SCMR 114; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Abdul Haq v. The State and another PLD 1996 SC 1; Muhammad Safdar v. The State PLD 2002 SC 781; Ghulam Hussain and another v. The State PLD 1966 (W.P.) Pesh. 255; The State through A.‑G., N.‑W.F.P:, Peshawar v. Waqar Ahmad 1992 SCMR 950; Ishaq Hussain alias Muhammad Ashraf v. The State PLD 1994, SC 879; Muhammad Yaqub v. The State PLD 1969 Lah. 548; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Mohib Ali v. The State 1985 SCMR 2055 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 121‑‑‑Appreciation of evidence‑‑‑Special plea raised by accused‑‑‑Special plea taken by accused is required to be proved in terms of Art. 121 of the Qanun‑e‑Shahadat, 1984, as a question of fact‑‑‑Failure in proving such plea would not make him liable for commission of offence because the burden of proof of guilt always remains upon the prosecution, but if any doubt arises by establishing such plea the benefit of the same would be given to the accused.

Abdul Haq v. The State and another PLD 1996 SC 1 and Muhammad Safdar v. The State PLD 2002 SC 781 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence ‑‑‑Abscondence of accused‑‑‑When an accused absconds after commission of the offence an adverse inference is drawn against him to the effect that because he has committed the offence, therefore, to hamper the process of investigation of the case he has absconded.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑First version of accused‑‑­Accused is not bound to disclose his version on the first available opportunity and if he had not done so burden would not shift upon him to disprove the guilt, but disclosing of his version at the earliest is only relevant to show the stand taken by him which might ultimately help him in disproving the prosecution case.

Ishaq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 and Muhammad Yaqub v. The State PLD 1969 Lah. 548 rel.

Sardar Muhammad Ishaque Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Habibul Wahabul Khairi, Advocate Supreme Court, and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No. 1.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 11th November, 2002.

2003 S C M R 658

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg., C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

Maulana NAWAB‑UL‑HASSAN and 7 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Petition No. 124 and Criminal Petition No. 46 of 2002, decided on 17th January, 2003.

(On Appeal from the judgment/order, dated 12‑9‑2001 passed by Lahore High Court, Rawalpindi Bench in Criminal, Appeal 'No. 385‑T of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/149, 324/149 & 148‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Compromise‑‑‑Legal heirs and Wali of the deceased had voluntarily, without any duress or coercion, compounded the offence with the accused on their behalf as well as on behalf of the minors and had waived their right of Qisas and did not claim Diyat in the name of Almighty Allah‑‑‑Shares of the minors of the Diyat to which they were entitled had been invested in Government sponsored profit bearing scheme of DSCs with the National Saving Centre which was payable to them when they would become major‑‑‑Permission to compound the offence was accorded to the parties in order to maintain cordial relations between them‑‑‑Convictions and sentences of accused were set aside in circumstances and they were acquitted accordingly.

Dr. Babar Awan, Advocate Supreme Court for Petitioners.

Talib H. Rizvi, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for the Complainant.

Nemo for the State.

Date of hearing: 17th January, 2003.

2003 S C M R 663

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

GHULAM SHABBIR and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Petition No. 123 and Criminal Petition No.39 of 2002, decided on 17th January, 2003.

(On appeal from the judgment/order, dated 25‑9‑2001 passed by Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 386‑T of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149, 337‑A(i)/149 & 148‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.9‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Compromise‑‑‑Legal heirs and Wali of the deceased and the injured victims had compounded the offence with the accused on their behalf as well as on behalf of minors voluntarily without any duress or coercion and had waived their rights of Qisas and did not claim Diyat‑‑‑Minors were entitled to the share of Diyat amount and their respective shares had been invested in Government Scheme of DSCs with National Saving Centre which would be paid to them on their attaining majority‑‑‑Legal heirs of the deceased and the injured victims were accordingly` allowed to compound the offence with the accused in order to maintain cordial relations and bury the hatchets forever‑‑­Accused were acquitted in circumstances.

Talib H. Rizvi, Senior Advocate Supreme Court and M.A. Zaidi. Advocate‑on‑Record for Petitioners.

Dr. Babar Awan, Advocate Supreme Court for the Complainant.

Nemo for the State.

Date of hearing: 17th January, 2003.

2003 S C M R 668

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

ABDUL WAHID‑‑‑Petitioner­

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.647‑L of 2002, decided on 6th January, 2003.

(On appeal from the judgment, dated 28‑5‑2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 1152 of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(a) & 302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Accused in his statement under S.342, Cr.P.C. had admitted the incident in unequivocal terms‑‑‑Accused had no occasion to act in self‑defence particularly whets none from the complainant side including the deceased was armed with any lethal weapon creating an apprehension in his mind that he would be killed or inflicted a grievous hurt in case not retaliated‑‑‑Excepting his own words accused had not brought on record any evidence to substantiate his stance‑‑‑Prosecution, as against it, had successfully established its case beyond any shadow of doubt ‑‑‑Eye­witness account of the incident furnished at the trial had been fully corroborated by medical evidence, motive, dying declaration of the deceased, recovery of incriminating articles and the report of Fire‑arm Expert‑‑‑Incident on the face of it seemed to be a premeditated one‑‑‑Accused had failed to show even a single mitigating circumstance on record for reduction in his sentence of death‑‑‑ Courts below, however, had inadvertently recorded the conviction under S.302(a), P. P. C which was altered to section 302(b), P.P.C and the sentence of death was maintained‑‑‑Leave to appeal was refused by the Supreme Court accordingly.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 100‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 121‑‑‑Right, of self‑defence‑‑‑Burden of proof‑‑‑Where a plea of exercise of right of self‑defence has been specifically raised, then the burden to prove the same lies upon the accused and it becomes incumbent upon him, in view of Art.121 of Qanun‑e‑Shahadat, 1984 to prove that his case falls within the ambit of exceptions of S.100, P.P.C.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Burden of proof‑‑‑Specific plea raised by accused‑‑‑Principle‑‑‑Initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the accused in defence then both are to be considered in juxtaposition and the one which is nearer to the truth is to be given weight.

Awan Muhammad Hanif Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 6th January, 2003.

2003 S C M R 673

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza and Falak Sher, JJ

MEHR KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.266 of 1999, decided on 4th November, 2002.

(On Appeal from the judgment, dated 23‑11‑1999 of the Lahore High Court, Lahore in Criminal Appeal No.773 of 1995).

Penal Code (XLV of 1860)‑‑­

‑‑‑‑S.302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Eye‑witnesses who had no direct motive to falsely implicate the accused had fully supported the prosecution version‑‑‑Accused had been apprehended on the spot alongwith the pistol‑‑‑Crime empty recovered from the place of occurrence had matched with the said pistol‑‑‑Ocular testimony was also supported by medical evidence‑‑‑Motive for the occurrence had been independently proved ‑‑‑F.I.R. had been lodged without any consultation and deliberation‑‑‑Plea taken by accused in his statement under S.342, Cr.P.C. appeared to be totally false and malicious‑‑‑Accused had been too aggressive to kill the deceased who had merely pursued the previous murder case either in his capacity as an advocate or as a well‑wisher in the family‑‑‑No mitigating circumstance justifying reduction in sentence was available on record‑‑‑Conviction and sentence of accused were upheld in circumstances and leave to appeal was refused.

Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court with M. Asghar Khan Rokri, Advocate Supreme Court for the Complainant.

Date of hearing: 4th November, 2002.

2003 S C M R 678

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C. J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

FAROOQ NAWAZ‑‑‑Petitioner

Versus

DIRECTOR OF C.P. DIRECTORATE, AGS BRANCH, GHQ, RAWALPINDI and 2 others‑‑‑Respondents

Civil Petition No. 1502 of 2002, decided on 20th January, 2003.

(a) Revised Leave Rules, 1980‑‑‑

‑‑‑‑R.7‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.4(1)(b)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Removal from service for absence from duty‑‑‑Departmental appeal‑‑‑Delay, condonation of‑‑‑Civil servant was removed from service on 25‑2‑1997 for being absent from duty from 7‑1‑1997 onward‑‑‑ Dismissal of departmental appeal filed on 12‑8‑2000 as time‑barred was upheld by Service Tribunal‑‑‑Contention of civil servant was that he was involved in murder case on 5‑2‑1997; he was released on bail on 9‑2‑2000 and acquitted of charge on 30‑6‑2000, thus, time for filing departmental appeal would start running from the date of his acquittal and not from date of bail granted to him‑‑‑Validity‑‑‑Remaining absent from 7‑1‑1997 till date of his arrest on 5‑2‑1997, non‑submitting application for grant of leave during such period and non‑joining duty after getting bail on 9‑2‑2000 were sufficient to conclude that absence of civil servant was intentional and he was not interested to perform his duty‑‑‑Service Rules did not debar a person charged in a criminal case from performing his duty till his acquittal‑‑‑Department was not bound to accept application for grant of leave for period after 7‑7‑1997, when civil servant had, already been treated absent and removed from service on 25‑2‑1997‑‑­Tribunal had dismissed appeal for reason that departmental appeal was found to be barred by time‑‑‑Tribunal had not non‑suited civil servant for reason that he had no leave in his account or Department might have granted leave in his favour during period of his absence without applying formally for same‑‑‑Impugned judgment not suffering from any legal, discrepancy nor any question of public importance being involved therein in terms of Art.212(3) of the Constitution, Supreme Court dismissed petition for grant of leave to appeal.

Muhammad Hayat Saleem v. Government of Sindh through Excise and Taxation Department, Karachi and others 2002 SCMR 918 fol.

(b) Criminal trial‑‑‑

‑‑‑‑ Accused an innocent person‑‑‑Presumption‑‑‑Until criminal case was decided finally, presumption would be that accused facing charge of criminal nature was an innocent person.

(c) Revised Service Rules, 1980‑‑‑

‑‑‑‑R.7‑‑‑Leave‑‑‑Not automatically granted during period of absence from duty‑‑‑Civil servant cannot proceed on leave, unless same was formally requested and sanctioned‑‑‑Grant of leave‑‑‑Procedure stated.

Leave is not allowed to an employee automatically during period of his absence from duty, as employee is required to make express request for sanctioning leave and if such request is conceded and leave is sanctioned, only then he can proceed on leave, as such contention of an employee that his absence from duty should be treated towards leave as he has sufficient leave in his credit without formal request for its sanction is not acceptable under law. In this behalf, reference may be made to Rule 7 of Revised Leave Rules, 1980, which cast duty upon employee to proceed on leave after getting it sanctioned accordingly, but not otherwise ‑‑‑[Civil service‑‑‑Leave, grant of‑‑­Procedure].

Jan Muhammad Khan, Advocate‑on‑Record/Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 20th January, 2003.

2003 S C M R 681

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Abdul Hameed Dogar and Sardar

Muhammad Raza Khan, JJ

ZAHIR JAN and others‑‑‑Petitioners

Versus

PROVINCE through Secretary, Home and Tribal Affairs Department, Peshawar and others‑‑‑Respondents

Civil Petitions Nos. 1351 to 1353 of 2002, decided on 23rd January, 2003.

(On appeal from the judgment/order, dated 3‑7‑2002 passed by N.‑W.F.P. Service Tribunal, Peshawar in Appeals Nos.952‑‑‑954 of 2001).

North‑West Frontier Province Police (Efficiency and Discipline) Rules, 1975‑‑‑

‑‑‑‑Rr. 4, 5, 6 & 7‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Misconduct, charge of‑‑‑Removal from service by adopting summary procedure as provided under R. 5(2) of the North‑West Frontier Province Police (Efficiency and Discipline) Rules, 1975‑‑‑Dismissal of appeals by Service Tribunal‑‑‑Contention of civil servants was that major penalty could not be awarded by adopting summary procedure‑‑­Validity‑‑‑Gravity of allegations levelled against civil servants required strict compliance with said Service Rules‑‑‑Duty of Department way to probe into matter according to Rules to meet ends of justice‑‑‑Competent Authority could award major penalty only on receipt of inquiry record‑‑­No detailed inquiry had been conducted‑‑‑Department should have proceeded against civil servants after obtaining report from Inquire Officer‑‑‑Department after transfer of Inquiry Officer could finalize detailed proceedings against civil servants in terms of R.5(3)(4)(5) read with Rr. 6 & 7 of the said Rules‑‑‑Supreme Court converted petitions into appeals and allowed the same partially by setting aside removal order of petitioners while directing them to face detailed proceedings, for which steps had already been taken by Department.

Khushdil Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record (absent) (in all Cases) for Petitioners.

Sardar Shaukat Hayat, Addl. A.‑G., N.‑W.F.P. (in all Cases) for Respondents.

Date of hearing: 23rd January, 2003.

2003 S C M R 684

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

NOOR KHAN‑‑‑Petitioner

Versus

MUHAMMAD RAFIQ and 2 others‑‑‑Respondents

Civil Petition No. 1369 of 2002, decided on 8th January, 2003.

(On Appeal from the judgment dated 3‑6‑2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No. 341 of 1995).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 47(1), 48 & O. XX, Rr.10, 14‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Decree in pre­-emption suit‑‑‑Not executed within prescribed period‑‑‑Separate suit for possession‑‑‑Maintainability‑‑‑Supreme Court granted leave to appeal to consider, inter alia, as to whether in view of S.47(1), C.P.C., any separate suit for implementation of decree for possession passed in earlier suit for pre‑emption could not be maintained, particularly when no execution proceedings for its implementation were filed within prescribed period of limitation in accordance with law.

Ch Afrasiyab Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 8th January, 2003.

2003 S C M R 686

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Sardar Muhammad Raza, JJ

CHIEF ENGINEER, HYDEL (NORTH) AND PROJECT DIRECTOR, WAPDA, WARSAK‑‑‑Appellant

Versus

ZAFRULLAH SHAH and another‑‑‑Respondents

Civil Appeal No.708 of 1997, decided on 24th January, 2003.

(On Appeal from the judgment, dated 4‑3‑1996 of the N.‑W.F.P. Service Tribunal, Peshawar passed in Appeal No.415 of 1995).

(a) Civil Service Regulations‑‑‑

‑‑‑‑ Regln.418‑‑‑Resignation or dismissal/removal from service for misconduct etc. and resignation for taking up another appointment‑‑­Consequences of both such resignations, whether similar‑‑‑Principles.

Contents of Regulation 418 indicate different kinds of resignations that entail different consequences.

Regulation 418(a) highlights those resignations, which arise from misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination and all such resignations which entail forfeiture of past service. Whereas resignation of an appointment to take up another appointment, in which service counts, is not a resignation of the public service. As the public service continues and as service in both appointments counts, this principle of common sense is enunciated in Regulation 418(b) declaring in unequivocal words that such resignation is not a resignation of the public service and hence, the consequences of resignation under Regulation 418(a) are not similar to the consequences of resignation under Regulation 418(b).

(b) Civil Service Regulations‑‑‑

‑‑‑‑ Regln. 418(b)‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Resignation from service in WAPDA for taking up appointment in another Department‑‑‑Request of civil servant to grant him pensionary benefits for period he had served with WAPDA was declined‑‑‑Service Tribunal granted relief prayed for to civil servant‑‑‑Contention of WAPDA was that civil servant for having voluntarily resigned had lost all his rights arising out of his service under WAPDA‑‑‑Validity‑‑‑Civil servant under Regln. 418(b) of Civil Service Regulations was entitled to pensionary benefits qua his service rendered in WAPDA‑‑‑Tribunal had rightly applied Regln. 418(b) to case of civil servant‑‑‑Such finding was unexceptionable‑‑‑Supreme Court dismissed appeal in circumstances.

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

‑‑‑‑Ss. 2 (a), 3 & 4‑‑‑Civil Service Regulations, Regln. 418(b)‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Service Tribunal, jurisdiction of‑‑‑Resignation from service in WAPDA for taking up appointment in another Department ‑‑‑WAPDA refused to pay respondent pensionary benefits for period he had served with WAPDA‑‑‑Service Tribunal granted such relief to respondent‑‑‑Contention of WAPDA was that relief claimed by respondent was against WAPDA, thus, Provincial Service Tribunal had no jurisdiction to give findings in the matter‑‑­Validity‑‑‑Status/entity of respondent being a provincial civil servant was so strong and specific that had he resorted to Federal Service Tribunal, his claim would have been turned down on the ground that he was provincial civil servant and that Federal Service Tribunal was empowered to adjudicate upon terms and conditions of civil servants belonging to Departments of Federal Government‑‑‑All formalities of retirement and pension of respondent would be gone into by Provincial Department‑‑‑Tribunal established for respondent was, thus, Provincial Service Tribunal and not the Federal one, irrespective of the fact, whether claim was partly recoverable from a Department belonging to Federal Government‑‑‑Objection to jurisdiction not raised by WAPDA before Tribunal could not be raised before the Supreme Court‑‑‑Supreme Court dismissed appeal in circumstances.

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

‑‑‑‑Ss.4, 3, 1 (3) & 2(a)‑‑‑Sindh Service Tribunals Act (XV of 1973), Ss.4, 3, 1(3) & 2(a)‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), Ss.4, 3, 1(3) & 2(a)‑‑‑Balochistan Service Tribunals Act (V of 1974), Ss. 3, 4, 1(3) & 2(a)‑‑‑Punjab Service Tribunals Act (IX of 1974), Ss.4, 1(3) & 2(a)‑‑‑Jurisdiction of Service Tribunal‑‑­Determination of‑‑‑Criteria stated.

Two important factors to be considered while determining the jurisdiction of a Tribunal are, firstly, the entity and status of the employee, whether a civil servant or not, and secondly as to whether his claim is with regard to terms and conditions of his service. Again it has to be seen with specific care as to which type of civil servant or servants, the Tribunal is constituted for. If it is for Federal civil servants, then Federal Service Tribunal shall have the jurisdiction, and if for provincial civil servant, then Provincial Service Tribunal will have the jurisdiction.

Primarily a Tribunal would exercise jurisdiction regarding those civil servants, for which it is established or vice versa.

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

‑‑‑‑S.21‑‑‑Objection to jurisdiction of Court or Tribunal‑‑‑Not taken in the forum of first instance‑‑‑Effect‑‑‑Such objection could not be raised either in appeal or revision and that too, if a failure of justice had been caused in decision of case.

(f) Civil Service Regulations‑‑‑

‑‑‑‑ Regln. 418(b)‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑­Resignation from service in WAPDA for taking up appointment in other Department ‑‑‑WAPDA refused to pay civil servant his pensionary benefits for period he had served with WAPDA‑‑‑Service Tribunal granted such relief to civil servant‑‑Contention of WAPDA was that claim of civil servant was premature as his retirement was not due in immediate future, thus, he lacked cause of action ‑‑‑Validity‑‑‑WAPDA had denied claim on merit, thus, such objection was of no significance‑‑­Claim once denied, its adjudication on merit would become important, because same would be equally denied when preferred in future at time of retirement‑‑‑Such claim was merely for transfer of pensionary benefits from 'one Department to another, which could be made at any time before retirement as same would be encashed only when retirement was materialized by the relevant Department of civil servant ‑‑‑WAPDA could not be disassociated from such claim with reference to previous service, that counts, thus, WAPDA had to be joined as respondent in appeal before Service Tribunal.

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

‑‑‑‑S.4‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973); Art. 212(3)‑‑­Objection to jurisdiction, if not taken before Tribunal, could not be taken before Supreme Court.

Muhammad Latif Khan, Advocate Supreme Court and Syed Maqbool Ali Shah, Director, WAPDA for Appellant.

Attiq‑ur‑Rehman Qazi, Advocate Supreme Court and M Hussain Khan, Advocate‑on‑Record for Respondent No. 1.

Jehanzeb Rahim, A.‑G., N.‑W.F.P. for Respondent No.2.

Date of hearing: 8th January, 2003.

2003 S C M R 694

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Sardar Muhammad Raza Khan, JJ

ANISUL HASSAN ‑‑‑ Petitioner

Versus

GOVERNMENT OF PUNJAB through, Secretary, Local Government and another‑‑‑Respondents

Civil Petition No.591 of 2002, decided on 10th January, 2003.

(On Appeal from the judgment/order, dated 28‑3‑2002 passed by Punjab Service Tribunal, Lahore in Appeal No.2615 of 2000).

(a) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.16, proviso‑‑‑Re‑instatement in service‑‑‑Arrears of pay‑‑­Entitlement‑‑‑Necessary for Court to determine, whether civil servant would be entitled to arrears of pay and, if so, to what extent:

Muhammad Hafeez Javed v. Secretary Agriculture, Government of Punjab and another PLD 1992 SC 31 fol.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.16, proviso‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.4(1)(a)(ii), (b)(i)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Back‑benefits, claim for‑‑‑Compulsory retirement from service‑‑‑Department partially accepted appeal, reinstated civil servant in service, but imposed penalty of stoppage of annual increments for two years and treated intervening period as extraordinary leave with pay‑‑­Service Tribunal kept intact such penalty‑‑‑Civil servant, who had retired on account of superannuation, claiming only back‑benefits contended that he had 398 days leave to his credit, thus, Department should have treated period of his dismissal as leave without pay‑‑‑Validity‑‑‑Neither specific question had been raised before Service Tribunal nor proved that civil servant had remained idle throughout period of his dismissal‑‑‑Such question could not be allowed to be argued for the first time before Supreme Court‑‑‑Authority while setting aside dismissal/removal order had discretion to hold, whether civil servant was entitled to arrears of pay or not‑‑‑Authority had not reinstated civil servant unconditionally‑‑­Service Tribunal had kept intact such penalty‑‑‑Civil servant had not challenged order of Tribunal to such extent‑‑‑Order passed by Authority was in consonance with law‑‑‑Supreme Court dismissed petition and declined leave to appeal.

Muhammad Hafeez Javed v. Secretary Agriculture Government of Punjab and another PLD 1992 SC 31; Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787; The Province of Punjab and others v. Muhammad Anwar 2001 PSC 690 and Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines, Corporation and others 2002 SCMR 1034 rel.

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

Nemo for Respondents.

Date of hearing: 10th January, 2003.

2003 S C M R 698

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

ASHIQ HUSSAIN and others‑‑‑Appellants

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Appeals Nos. 156, 216 and Criminal Petition No. 113 of 2002, decided on 20th January, 2003.

(On Appeal from the judgment/order, dated 19‑1-2002 passed by Lahore High Court, Rawalpindi Bench in Criminal Revision No. 89 of 1992 and Criminal Appeal No, 81 of 2002).

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

‑‑‑‑S.439(4)‑‑‑Revision against acquittal‑‑‑Revisional Court had no jurisdiction to convert findings of acquittal into conviction‑‑‑If revisional Court came to the conclusion that impugned order was not sustainable in eye of law, then same would remand case for re‑trial.

Liaqat Ali v. The State PLD 1982 Lah. 539 fol.

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

‑‑‑‑Ss.4.10 & 367‑‑‑Penal Code (XLV of 1860), S.307‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against conviction arid sentence‑‑‑High Court while maintaining such conviction and sentence had not put forward reasonable, convincing and acceptable ground to understand that as to why sentences of convicts had been maintained‑‑‑Impugned judgment was not maintainable‑‑‑Case was remanded to High Court for its fresh decision.

(c) Criminal trial‑‑‑

‑‑‑‑ Judgment must be speaking one, so that its reader may understand with clarity the reasons for which conviction and sentences have been maintained.

(d) Criminal Procedure Code (V of 1989)‑‑‑

‑‑‑‑Ss.410, 173 & 367‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of Pakistan (173), Art. 185(3)‑‑‑Appeal against conviction‑‑‑Acquittal by High Court without assigning cogent reasons‑‑‑Effect‑‑‑Section 367, Cr.P.C., cast duty upon Court to note down points for determination and then record decision‑‑‑High Court while acquitting convict had been influenced by report of Investigating Officer, who had exonerated him from charge‑‑‑Validity‑‑‑Once accused had been challaned before Court under S.173, Cr.P.C., and prosecution had produced evidence against him, then Court was bound to decide case in view of material placed on record and was not supposed to follow reports of Investigating Officer being tentative in nature‑‑‑Such acquittal was not sustainable in law‑‑‑Case was remanded to High Court for its fresh decision.

Nasir Abbas v. The State 1995 SC MR 1333; Sahab Khan and 4 others v. The State and others 1997 SCMR 871 and Federation of Pakistan through Secretary Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299 rel.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 156 of 2002).

Malik Ain‑ul‑Haq, Advocate Supreme Court and M.A. Zaidi Advocate‑on‑Record for Appellant (in Criminal Appeal No.216 of 2002).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 113 of 2002).

F.K. Butt, Addl. A.‑G. (Punjab) for the State.

Date of hearing: 20th January, 2003.

2003 S C M R 705

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

REHMATULLAH KHAN and others‑‑‑Appellants

Versus

POST‑MASTER GENERAL, POST OFFICES, N.‑W.F.P., PESHAWAR and

others‑‑‑Respondents

Civil Appeals Nos.24, 510 and 1049 of 2000, decided on 7th January, 2003.

(On appeal from the judgment dated 16‑3‑1999 of the Federal Service Tribunal, Islamabad, passed in Appeals Nos. 879(P), 747(R) and 880(P) of 1998).

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

‑‑‑Ss. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997)] & 4‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Employees of Bank‑‑­Termination of service‑‑‑Dismissal of grievance petitions due to insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Service Tribunal dismissed appeals of employees for having been filed after one month and four days of order of dismissal of grievance petition by Labour Court‑‑­Supreme Court granted leave to appeal to consider as to whether delay in such cases was condonable after insertion of S.2‑A in the Act.

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

‑‑‑‑Ss. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997)] & 4‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.25‑A‑‑‑ Constitution of Pakistan (1973), Art. 212(3)‑‑‑Employees of Bank‑‑­Termination of service‑‑‑Dismissal of grievance petitions due to insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Service Tribunal dismissed appeals of employees for having been filed after one month and four days of order of dismissal of grievance petition by Labour Court‑‑­Validity‑‑‑First judgment of Supreme Court after insertion of S.2‑A in the said Act passed in Muhammad Afzal's case reported in 1999 SCMR 92 was to the effect that Tribunal should have taken lenient view for condoning delay in filing appeals on account of prevailing confusion with regard to availability, of remedy to aggrieved person employed in organization or corporation controlled by Government or any of its Department‑‑‑Appellants had filed appeals before Tribunal on 29‑1-1­1998 prior to January, 1999, when first judgment of Supreme Court on particular point was published‑‑‑Supreme Court accepted appeals, set­aside order of Tribunal and remanded cases to Tribunal with direction to decide same afresh on merits in accordance with law and determine question of condonation of delay in the light of such observation.

Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92 and Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 fol.

Ch. Sadiq Muhammad Warraich, Advocate Supreme Court for Appellants in Civil Appeals Nos 24, 1049 and 510 of 2000).

Sardar Muhammad Aslam, D.A.‑G. for Respondents (in Civil Appeals Nos. 24 and 1049 of 2000).

Sh. Riazul Haque, Advocate Supreme Court for Respondent (in Civil Appeal No 510 of 2000).

Date of hearing: 7th January, 2003.

2003 S C M R 708

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Abdul Hameed Dogar and

Sardar Muhammad Raza Khan, JJ

NOOR MUHAMMAD, LAMBARDAR‑‑‑Petitioner

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and

others‑‑‑Respondents

Civil Petitions Nos. 1574‑L and 1651‑L of 2002, decided on 15th January, 2003.

(On Appeal from the judgment/order, dated 11‑3‑2002 passed by Lahore High Court, Lahore in Writ Petition No.8608 of 1996).

(a) Practice and procedure‑‑

‑‑‑‑Party cannot be allowed to blow hot and cold in the same breath.

(b) Interlocutory order‑‑‑

‑‑‑‑ Connotation of‑‑‑Interlocutory order is an order in which no final verdict is pronounced, but an ancillary order is passed with intention to keep same operative till final decision.

Habib Bank Ltd. and others v. Syed Zia‑ul‑Hassan Kazmi 1998 SCMR 60 and United Bank Ltd. v. Ahsan Akhtar and others 1998 SCMR 68 ref.

(c) West Pakistan Land Revenue Rules, 1968‑‑

‑‑‑‑R. 19‑‑‑Lambardar, appointment of‑‑‑Cause of action‑‑‑Such matter would be decided between parties on the basis of cause of action, which had accrued to aggrieved party at the time, when action had been initiated.

(d) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑Rr. 19(2), 25 & 26‑‑‑Lambardar, appointment of‑‑‑Rule of primogeniture‑‑ Applicability‑‑‑Provisions of Rr. 19(2), 25 & 26 of the West Pakistan Land Revenue Rules, 1968 recognizing appointment of a minor or an incapable person as Lambardar would cease to have effect w.e.f. 1‑9‑1999, on which date decision of Shariat Appellate Bench of Supreme Court (PLD 1999 SC 484) would take effect‑‑‑Cause of action had accrued to petitioner w.e.f. 19‑11‑1983, when his father had died‑‑‑

Held, such case would be decided as per R.19(2) of the West Pakistan Land Revenue Rules, 1968.

Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 rel.

Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 ref.

(e) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 164‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court to correct error of law committed by Provincial Board of Revenue‑‑‑Scope‑‑‑Any error on part of Board of Revenue in understanding the law, in applying the same or in laying down the law, could and must be corrected in Constitutional Jurisdiction‑‑If such error was left uncorrected, then same would result in subverting the rule of law.

Haji Noorwar Jan v. Member, Board of Revenue, N.‑W.F.P. and others PLD 1991 SC 531 fol.

(f) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑R. 19‑‑‑Lambardar, appointment of‑‑‑Necessary parties‑‑‑Cases pertaining to appointment of Lambardar always contested by private parties inter se on account of their respective rights‑‑‑Official respondents for such reason try to keep themselves away from legal proceedings.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mahmoodul Islam, Advocate‑on‑Record (absent) for Petitioner.

Hassan Ahmed Kanwar, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 15th January, 2003.

2003 S C M R 719

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

Syed ALI NAWAZ SHAH and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No. 414, Civil Petitions Nos.1648 and 1649 and Criminal Petition No.310 of 2002, decided on 8th January, 2003.

(On appeal from the judgments of High Court of Sindh dated 1‑10‑2002, 30‑9‑2002 and 6‑9‑2002 passed in Criminal Appeal No.23 of 2002, C.Ps. Nos. 1674, 1675 of 2002 and Criminal Appeal No.23. of 2001 respectively).

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

‑‑‑‑S. 18(g)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Supreme Court for reasons to be recorded later set aside conviction and sentences awarded to appellants, while reference under S. 18(g) of the Act would be deemed to be pending before Accountability Court for decision in accordance with law.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court (in all Cases) with Afzal Siddiqui, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Appellants (in Criminal Appeal No 414 of 2002).

M.A. Zaidi, Advocate‑on‑Record for Appellant (in C. Ps. Nos. 1648 and 1649 of 2002).

M. S. Khattak, Advocate‑on‑Record for Appellant (in Criminal Petition No 31 of 2002).

Mirza Naveed Rasool, Prosecutor‑General, NAB with Raja Muhammad Bashir, Deputy Prosecutor‑General and. M. S. Khattak, Advocate‑on‑Record for NAB.

Hafiz S. A. Rehman, Deputy Attorney‑General for Attorney‑General for Pakistan.

Date of hearing: 8th January, 2003.

2003 S C M R 720

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD YUNUS‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB and others‑‑Respondents

Civil Petition No. 467‑L of 1999, decided on 6th March, 2002.

(On Appeal from the order dated 26‑2‑1999 of the Punjab Service Tribunal, Lahore passed in Appeal No. 1623 of 1998).

Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Computation‑‑‑Civil servant had applied on 4‑4‑1998, for the certified copy of the order dated 18‑3‑1998 of Appellate Authority whereby the Departmental appeal against the orders of dismissal of civil servant was turned down‑‑‑Certified copy was prepared and supplied to the civil servant on 3‑9‑1998, while the appeal before the Tribunal was filed on 17‑9‑1998‑‑‑Service Tribunal without computing the period of limitation dismissed the appeal being time‑barred‑‑‑Validity‑‑‑Civil servant had filed the appeal within the prescribed period of 30 days‑‑‑Petition for leave to appeal was converted into appeal and the case was remanded to the Tribunal for decision on merits.

Ch. Muhammad Siddique, Advocate Supreme Court for Petitioner.

Khushi Muhammad, Nazir, Office of the D.C.O., Lahore for Respondents (on Notice).

Date of hearing: 6th March 2002.

2003 S C M R 722

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Javed Iqbal, JJ

ATTA MUHAMMAD and another‑‑‑Appellants

Versus

MIR AHMAD and another‑‑‑Respondents

Civil Appeal No. 1763 of 1997, decided on 5th December, 2000.

(On appeal from the judgment, dated 21‑1‑1996 of the High Court of Sindh Circuit Bench at Hyderabad passed in R.F.A. No.50 of 1994).

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

‑‑‑‑S.15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether it was the purpose for which the property was originally rented out which would determine the question of nature of the property for the purpose of ejectment petition on the subsequent use to which the tenant had put the property rented out to him.

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

‑‑‑‑Ss.2(h) & 15‑‑‑Ejectment proceedings‑‑‑Maintainability‑‑‑Property used as hotel‑‑‑Scope‑‑‑Hotel rented out to tenant is not deemed to be "premises" for the, purpose of maintaining ejectment petition before Rent Controller as the same has been expressly excluded from the definition of "premises" given in Sindh Rented Premises Ordinance, 1979, as eviction petitions are maintainable only in respect of "premises".

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

‑‑‑‑Ss.2(h) & 15‑‑‑Ejectment of tenant‑‑‑Changing nature of premises‑‑­Converting of open plot into hotel without written permission of landlord ‑‑‑Open plot was rented out by landlords and tenants unilaterally without written permission of the landlords converted the same into a hotel ‑‑‑Ejectment petition was resisted by the tenants on the ground that the premises was a hotel which was not included in the definition of "premises" as defined under S.2(h) of Sindh Rented Premises Ordinance, 1979‑‑‑Rent Controller passed eviction order against the tenants but High Court reversed the findings of Rent Controller and eviction order was set aside‑‑‑Validity‑‑‑Unilateral act of tenant of using the property for a particular purpose after the same was rein ed out by landlords was not the determining factor whether the same would fall within the definition of term "premises" as given in S.2(h) of Sindh Rented Premises Ordinance, 1979, whereas it was the purpose for which the property originally was let out which would determine whether the same fell within the definition of premises to attract the provisions of Sindh Rented Premises Ordinance, 1979‑‑‑Property which was let out to the tenants was an open plot, therefore, it would be deemed to be an open plot to attract the provision of Sindh Rented Premises Ordinance, 1979‑‑‑Ejectment petition was maintainable and the landlords could not be non‑suited on the ground that subsequently the tenants .had converted the use of the premises to a hotel‑‑‑High Court was not correct that the premises could be treated or deemed to be hotel to oust the jurisdiction of Rent Controller to order eviction of tenants‑‑‑Judgment of High Court was set aside and the case was remanded to High Court for decision afresh on appeal‑‑‑Appeal was allowed.

Kazi A. Rahim, Advocate Supreme Court for Appellants.

Nemo for Respondents.

Date of hearing: 5th December, 2000.

2003 S C M R 726

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

ASGHAR ALI ‑‑‑ Appellant

Versus

DISTRICT & SESSIONS JUDGE, BAHAWALNAGAR and another‑‑‑Respondents

Civil Appeal No.503 of 1999, decried on 21st May, 2002.

(On Appeal from the judgment, dated 15‑11‑1997 of Punjab Service Tribunal, Lahore passed in Appeal No.831 of 1995)

(a) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Re‑instatement in service‑‑‑Back benefits, entitlement to‑‑‑Leave to appeal was granted by Supreme Court to consider whether the civil servant was entitled to all back benefits when his retirement was found against law.

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

‑‑‑‑S.4‑‑‑Re‑instatement in service‑‑‑Back benefits, entitlement to‑‑Service Tribunal allowed appeal of the civil servant and reinstated him in service and period between dismissal and reinstatement was treated as leave of the kind due‑‑‑Contention of the civil servant was that he was entitled to back benefits from the date of his removal to the date of his reinstatement‑‑‑Validity‑‑‑Authorities conceded to the case of the civil servant‑‑‑Civil servant was entitled to back benefits from the date of his removal to the date of his reinstatement‑‑‑Judgment passed by the Service Tribunal was set aside‑‑‑Appeal was allowed.

Ali Nawaz v. Pakistan Railways through Chairman/Secretary and others 1999 SCMR 1873 fol.

Nemo for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for Responents.

Date of hearing: 21st May, 2002.

2003 S C M R 727

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

GHULAM QADIR through Legal Heirs‑‑‑Petitioner

Versus

Mst. NAZAMUR REHMAN‑‑‑Respondent

Civil Petition for Leave to Appeal No.3069‑L of 2001, decided on 25th April, 2002.

(Against judgment dated 6‑7‑2001 of Lahore High Court Bahawalpur Bench, Bahawalpur in Civil Revision No.345‑D of 1986).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑‑Frivolous petition‑‑‑Points taken by petitioner in his petition for leave to appeal had already been settled by Supreme Court‑‑­Effect‑‑‑Supreme Court intended to burden the petitioner with heavy costs but he stated to be careful in future‑‑‑Supreme Court took a lenient view and let the petitioner withdraw his petition.

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

Nemo for Respondent.

Date of hearing: 25th April, 2002.

2003 S C M R 728

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

MUHAMMAD YOUSAF‑‑‑Petitioner

Versus

SECRETARY IRRIGATION, GOVERNMENT OF THE PUNJAB and

others‑‑‑Respondents

Civil Petition for Leave to Appeal No.3863/L of 2001, decided on 28th February, 2002.

(On Appeal from the judgment, dated 31‑10‑2001 of the Lahore High Court, Lahore, passed in Writ Petition No.7495 of 1996).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.185(3) & 199‑‑‑Constitutional petition‑‑‑Closing of Tubewell SCARP Scheme‑‑‑Grievance of the petitioner was that the act of Authorities of closing the Tubewell Scheme was mala fide‑‑‑Authorities contended that the Tubewell under SCARP Scheme was installed to provide water for cultivation purposes as alternate, arrangement had been achieved, therefore, the same was closed‑‑‑Validity‑‑‑Act of Authorities of closing the tubewell was not mala fide‑‑‑High Court had rightly dismissed the Constitutional petition‑‑‑Judgment passed by High Court did not suffer from any legal infirmity calling interference by Supreme Court‑‑‑Leave to appeal was refused.

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

Nemo for Respondents

Date of hearing: 28th February, 2002.

2003 S C M R 730

[Supreme Court of Pakistan]

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

ABDE ALI ‑‑‑ Appellant

Versus

Shaikh HATIM BHAXI‑‑‑Respondent

Civil Appeal No.787 of 1994, decided on 3rd February, 1998.

(On Appeal from the judgment of the High Court of Sindh, Circuit Bench, Hyderabad, dated 29‑3‑1994 passed in F. R. A. No. 164 of 1987).

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

‑‑‑‑S.15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to examine the correctness of the reasons given by High Court while reversing the findings of Rent Controller.

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

‑‑‑‑S.15‑‑‑Bona fide personal need of landlord‑‑‑Enhancing of rent in earlier eviction proceedings‑‑‑Landlord had previously filed ejectment application with regard to the same shop and against the same tenant on the ground of personal requirement‑‑‑Matter was compromised, in the earlier proceedings, when the tenant agreed to enhance the monthly rent‑‑‑Present proceedings were also based upon the personal need of the landlord‑‑‑Rent Controller allowed the ejectment application but High Court reversed the findings qua bona fide need of landlord and eviction order passed by Rent Controller was set aside‑‑‑Validity‑‑‑As in the earlier ejectment application the ground of the landlord was his personal requirement, High Court rightly reversed the findings of the Rent Controller‑‑‑Landlord failed to indicate that the view taken by the High Court was either perverse or the same was based on misreading of evidence or any important factor in the case had been overlooked‑‑‑Findings of High Court did not warrant interference by Supreme Court‑‑­Appeal was dismissed.

J.H. Rahimtoola, Advocate Supreme Court for Appellant.

A.K.M. Idrees, Advocate Supreme Court and Ali Akbar, Advocate‑on‑Record for Respondent.

Date of hearing: 3rd February, 1998.

2003 S C M R 733

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

Mst. FATIMA ISMAIL ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 122‑K of 2002, decided on 28th November, 2002.

(On Appeal from the order of the High Court of Sindh. Karachi, dated 4‑10‑2002, passed in Criminal Bail No. 1069 of 2002).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S. 9(a)(ix)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑High Court had refused bail to the accused with the observation to repeat the bail application after investigation was completed and the Reference, if any, was submitted by the NAB Authorities before the Accountability Court‑‑‑Accused facing charges under the NAB Ordinance could approach the High Court under Art. 199 of the Constitution and application under S.497, Cr.P.C. before the High Court was not maintainable‑‑‑Counsel for the accused in view of the said settled legal position did not press the petition which was dismissed as not pressed with the permission to accused to move the High Court again for relief, if so advised.

Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607 and Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040 ref.

Muhammad Ilyas Khan, Advocate Supreme Court for Petitioner.

Naveed Rasool Mirza, Prosecutor‑General NAB and M. S. Khattak, Advocate‑on‑Record for the State.

Date of hearing: 28th November, 2002.

2003 S C M R 735

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

MUNAWAR JAVED‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.508/L of 2001, decided on 3rd July, 2002.

(On Appeal from the order, dated 29‑6‑2001 of the Lahore High Court rendered in Criminal Appeal No.818 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused had served out his substantive sentence and only the amount of Diyat of Rs.2,60,000 remained to be paid by him, which he being a poor person was stated to be unable to pay the same in three equal instalments as ordered by the High Court‑‑‑Said order of the High Court was modified by Supreme Court with the direction to the accused to pay the amount of Diyat over a period of three years in equal monthly instalments‑‑‑Petition was disposed of accordingly.

Ehsan Ullah Lila, Advocate Supreme Court for Petitioner.

Date of hearing: 3rd July, 2002.

2003 S C M R 736

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SADIQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No. 134 of 2001, decided on 21st March, 2002.

(On Appeal from the judgment of Lahore High Court, Multan Bench, dated 26‑7‑2001 passed in Criminal Appeal No. 256 of 1998 and Murder Reference No. 116 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ocular evidence was truthful, trustworthy and of unimpeachable character and by itself was sufficient to prove the charge and sustain the conviction of accused without any corroboration‑‑‑Medical evidence, had further supported the prosecution case and negated the defence version‑‑­Presence of one eye‑witness who had sustained injuries at the hands of accused in the occurrence and of the other eye‑witnesses, on the spot, was doubtless who had corroborated each other on each material point in line with the prosecution story given in the promptly lodged F.I.R.‑‑­Leave to appeal was declined to accused by Supreme Court in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 21st March, 2002.

2003 S C M R 742

[Supreme Court of Pakistan]

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

ARIF HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.650/L of 2001, decided on 6th March, 2002.

(On Appeal from the order, dated 7‑8‑2001 of the Lahore High Court, Lahore passed in Criminal Appeal No. 384 of 1999).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Prosecution version that acid was thrown on the deceased which caused her death was corroborated by medical evidence‑‑‑Deceased was done to death in a gruesome manner by the accused‑‑‑Prosecution case stood established on record‑‑‑Impugned judgment was not open to any exception‑‑‑Leave to appeal was declined to accused by Supreme Court accordingly.

Malik Noor Muhammad Awan, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 6th March, 2002.

2003 S C M R 743

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MANZOOR HUSSAIN and others‑ ‑‑Petitioners

Versus

Mst. FAZIL ELAHI‑‑‑Respondent

Civil Petition No.2953‑L of 2001, decided on 13th March, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.35‑A & O.XLI, R.33, proviso‑‑‑Special costs, grant of‑‑‑Appellate Court, jurisdiction of‑‑‑Plea raised by the appellant was that the special costs under S.35‑A, C.P.C. were refused by Trial Court, therefore, the Appellate Court had no power to grant the same in view of the proviso to O.XLI, R.33, C.P.C.‑‑‑Supreme Court issued notice to the respondent for a date to be fixed within a month with observation that till then operation of the impugned judgment to the extent of special costs shall remain suspended.

Ejaz Baig Mirza, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 13th March, 2002.

2003 S C M R 744

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Saleem Akhtar, JJ

WAHID HUSSAIN ‑‑‑Petitioner

Versus

Syed MUHAMMAD ASIF and another‑‑‑Respondents

Civil Petition No. 50‑K of 1996, decided on 11th March, 1997.

(On appeal from the order, dated 7‑12‑1995 of the Sindh High Court passed in Civil Revision Application No. 229 of 1993).

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑Civil Procedure Code (V of 1908), S‑115 ‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Condonation of delay‑‑‑Sufficient cause‑‑­Revision petition was delayed by 29 days‑‑‑Reason advanced for the delay was that the file containing the papers of revision petition slipped somewhere from the motor cycle of the counsel of the petitioner when he was coming to file the petition in the High Court but the same though supported by affidavit was not accepted by High Court and the revision petition was dismissed as time barred‑‑‑Contention of the petitioner was that sufficient ground had been, shown for condonation of delay and affidavit of the counsel of the petitioner should have been accepted by High Court‑‑‑Validity‑‑‑Very vague plea was taken in the affidavit of the counsel before High Court without any dates and other details of slipping away of the file and then recovery of the same‑‑‑Supreme Court declined to interfere with the judgment passed by High Court in exercise of revisional jurisdiction‑‑‑Leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate Supreme Court for Petitioner.

Date of hearing: 11th March, 1997.

2003 S C M R 747

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SAEED and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Jail Petition No.82 of 2001, decided on 8th May, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 22‑5‑2001 passed in Criminal Appeal No. 75‑J of 1996, Criminal Appeal No. 774 of 1996 and M.R. No. 192 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 337‑F(ii), 337‑A(i) & 337‑A(ii)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑F.I.R. having been lodged without any loss of time, no question of any deliberation and consultation could arise‑‑‑Close relationship of the injured witnesses with the deceased was no ground to discard their testimony who were natural witnesses of the occurrence having no motive to depose falsely against the accused or to substitute them for. the real culprits‑‑‑Medical evidence and the recovery of the weapons of offence from the accused stained with human blood had supported the ocular evidence‑‑‑Motive for the occurrence was proved‑‑­Evidence of eye‑witnesses was truthful, confidence‑inspiring and trust­worthy which did not suffer from any contradiction and discrepancy‑‑­Motive was not shrouded in mystery and in any case absence of motive or its weakness and insufficiency in such like‑cases could not be considered as a mitigating circumstance for awarding lesser penalty‑‑­High Court had appraised the evidence in consonance of the principles laid down by Supreme Court‑‑‑Leave to appeal was refused to accused accordingly.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Sentence‑‑‑Motive‑‑‑Weakness and insufficiency of motive or absence of motive in murder cases cannot be considered as a mitigating circumstance for awarding lesser punishment.

Sardar M. Siddique Khan, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 8th May, 2002.

2003 S C M R 754

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ZAHEERUDDIN AZHAR and another‑‑‑Petitioners

Versus

ADDITIONAL COMMISSIONER (REVENUE)/SETTLEMENT

COMMISSIONER and others‑‑ ‑Respondents

Civil Petitions Nos.2002/L and 2116‑L of 1998, decided on 7th March, 2002.

(On appeal from the judgment dated 14‑10‑1998 of the Lahore High Court, Lahore, passed in Writ Petition No. 108/R of 1993).

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

‑‑‑‑Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Allotment of evacuee property‑‑‑Possession over the portion of the suit property‑‑‑Proof‑‑‑Parties had been living jointly in the suit property since 1947‑‑­Many rounds of litigation took place between the parties and finally High Court decided the matter dividing the property according to the policy of accommodating maximum displaced persons‑‑‑Validity‑‑‑High Court, in view of protracted litigation between the parties had done complete justice and saved the parties form further agony and expense‑‑‑Both the contestants had been living in the same house peacefully since 1947 and the decision with regard to divisibility of the property was in line with the policy of accommodating as many displaced persons as possible in settlement cases‑‑‑Supreme Court declined to interfere with the order passed by High Court‑‑‑Leave to appeal was refused.

Ch. Muhammad Yaqoob Sidhu, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner (in C.P. No.2002/L of 1998).

Sh. Abdul Aziz, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record for Petitioner (in C.P. No.2116/L of 1998).

Nemo for Respondents.

Date of hearing: 7th March, 2002.

2003 S C M R 758

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Mian MAQBOOL AHMAD‑‑‑Petitioner

Versus

FAQIR MUHAMMAD and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.619‑L of 2001, decided on 14th March, 2002.

(On Appeal from the judgment dated 2‑3‑1999 of the Lahore High Court, Multan Bench, Multan passed in Civil Revision No.349 of 1998).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, R. 17‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Dismissal of appeal for non‑prosecution‑‑‑Indolent appellant‑‑‑Suit for specific performance of agreement to sell was decreed in favour of appellant with direction to deposit decretal amount within one month‑‑­Appellant preferred appeal before Appellate Court and failed to deposit the decretal amount even in the period extended by Appellate Court‑‑­Appeal was dismissed for non‑prosecution and application for restoration of the appeal was also dismissed for non‑prosecution‑‑‑High Court in exercise of revisional jurisdiction declined to restore the appeal­‑‑Validity‑‑‑Appellant had not only shown disregard to the initial as well as extended time frame fixed for depositing the decretal amount but also filed application for restoration of the application dismissed for non-­prosecution beyond prescribed period of limitation‑‑‑Explanation for filing of delayed application for restoration lacked plausibility for want of proof‑‑‑Appellant remained indolent throughout in spite of the indulgence shown by the Appellate Court in extending the time‑‑­Supreme Court declined to further indulgence in the matter as by passage of time the suit stood dismissed and valuable rights had accrued to the respondents‑‑‑ Leave to appeal was refused.

Ch. Inayatullah, Advocate 'Supreme Court with Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 14th March, 2002.

2003 S C M R 759

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MEHRA (MEHR MUHAMMAD) and 6 others‑‑‑Petitioners

Versus

MUHAMMAD YOUNUS and 20 others‑‑‑Respondents

Civil Petition No.3589/L of 2001, decided on 14th March, 2002.

(On appeal from the judgment dated 24‑9‑2001 of the Lahore High Court, Lahore passed in Civil Revision No. 1935 of 1998).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, Rr.23, 27 & S. 115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Additional evidence in rebuttal, production of ‑‑‑Revisional jurisdiction of High Court‑‑‑Remand of case by Appellate Court for second time‑‑‑Setting aside of remand order‑‑‑Suit was decreed in favour of respondent in the post‑remand proceedings‑‑‑Appellate Court once again remanded the case to the Trial Court for decision afresh after affording opportunity to the petitioners to produce additional evidence in rebuttal‑‑‑Second remand order was assailed before High Court in revisional jurisdiction under S.115, C. P. C. and the same was set aside with the direction to the Appellate Court to decide the appeal in accordance with law after affording opportunity of hearing to the parties‑‑‑Validity‑‑‑Parties had been litigating since long and had brought their litigation twice up to the level of High Court‑‑‑Supreme Court did not find it proper to further remand the matter to the Trial Court for the purpose of adducing evidence in rebuttal and maintained the judgment of High Court and also directed the Appellate Court for expeditious disposal of appeal in accordance with law‑‑‑Leave to appeal was refused.

Sh. Naveed Shaheryar, Advocate Supreme Court instructed by Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.

Respondent No. 1 in person.

Date of hearing: 14th March, 2002.

2003 S C M R 762

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

SAUDAGAR ALI through Legal Heirs‑‑‑Petitioner

Versus

KHURSHID AHMED and others‑‑‑Respondents

Civil Petition No.3779/L of 2001, decided on 1st April, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 5‑10‑2001 passed in Civil Revision No. 1177 of 1992).

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

‑‑‑‑Ss. 13 & 35‑‑‑Civil Procedure Code (V of 1908), O.XVIII, R.2‑‑­Constitution of Pakistan (1973) Art.185(3)‑‑‑Pre‑emption suit, revival of‑‑‑Required Talb (demand), proof of‑‑‑Evidence in rebuttal ‑‑‑Pre­emption suit was filed during interregnum and the same was revived under S.35 of Punjab Pre‑emption Act, 1991‑‑‑Plaintiff completed his evidence and reserved his right to appear as his own witness in evidence in rebuttal when he had to state about making of required Talb after revival of the suit‑‑‑Trial Court without granting opportunity to the plaintiff to complete his evidence in rebuttal and make statement in affirmative, dismissed the suit for want of evidence on Talb‑‑‑Judgment and decree passed by Trial Court was maintained by Appellate Court but High Court in exercise of revisional jurisdiction remanded the case to Trial Court to proceed from the stage when the same was dismissed‑‑­Validity ‑‑‑Vendees had not been able to point out that the judgment of High Court was violative of any law‑‑‑Judgment of High Court being in accordance with S.35 of Punjab Pre‑emption Act, 1991, it was rightly directed that the suit should proceed from the stage when it was dismissed‑‑‑Leave to appeal was refused.

Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

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

Nemo for Respondents.

Date of hearing: 1st April, 2002.

2003 S C M R 764

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Khalil‑ur‑Rehman Ramday, JJ

ABDUL GHAFOOR‑‑‑Petitioner

Versus

MEHMOOD AHMAD alias ASGHAR and others‑‑‑Respondents

Civil Petition No.2934/L of 2001, decided on 25th June, 2002.

(On appeal from the judgment dated 4‑7‑2001 passed by Lahore High Court, Lahore in Writ Petition No.21139 of 2000).

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Maintenance of minor children‑‑‑Enhancing of period of maintenance by High Court while deciding Constitutional petition‑‑‑Maintenance of two children was fixed by Family Court at the rate of Rs. 1,500 per month for each child from the date of institution of the suit and not from the date as prayed in the suit‑‑‑Judgment and decree passed by the Family Court was maintained by Appellate Court‑‑‑High Court, while deciding Constitutional petition filed by the father of minors modified the judgment of Family Court and granted maintenance to the minors from the date as prayed in the suit‑‑‑Contention of the father of the minors was that no appeal was filed by minors against the judgment and decree passed in their favour thus High Court could not enhance the period for which the maintenance allowance was to be recovered‑‑‑Validity‑‑‑Grant of maintenance allowance from the date prayed in the plaint could not be objected to by the father as he was otherwise bound to maintain his daughters during the period prior to filing of the suit‑‑‑Supreme Court declined to interfere with the judgment passed by High Court as the same was just and equitable‑‑‑No illegality had been committed by the Courts below while granting maintenance allowance of two children at the rate of Rs.1,500 per month each‑‑‑Leave to appeal was refused.

Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 25th June, 2002.

2003 S C M R 766

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

NAZIR AHMAD‑‑‑Petitioner

Versus

JAN MUHAMMAD and others‑‑‑Respondents

Civil Petitions Nos.2633‑L and 2634‑L of 2001, decided on 26th March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 30‑4‑2001 passed by Regular Second Appeal No. 828 of 1980).

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sale, liable to pre‑emption ‑‑‑Purchase of suit‑land from allottee of evacuee land from Settlement Department‑‑‑Vendor not vested with full ownership rights‑‑­Payment of settlement dues ‑‑‑Vendee defended the suit for pre‑emption on the ground that the dues of Settlement Department had not yet been paid, therefore, the sale was not pre‑emptible‑‑‑Validity‑‑‑Sale of land by confirmed allottee was pre‑emptible‑‑‑Question of payment of settlement fee to the Federal Government was a matter between the allottee and the Government ‑‑‑Vendee having purchased the land as such was not immune from pre‑emption suit‑‑‑Judgment passed by High Court was not interfered with by Supreme Court‑‑‑Leave to appeal was refused.

Haji Sultan Muhammad and another v. Muhammad Siddiq PLD 1973 SC 347 ref.

Ali Akbar Qureshi, Advocate Supreme Court and Muhammad Islam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th March, 2002.

2003 S C M R 767

[Supreme Court Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

Malik YAR MUHAMMAD and others‑‑‑Petitioners

Versus

MUHAMMAD FAROOQ AHMED KHAN and others‑‑‑Respondents

Civil Petition No.3643‑L of 2001, decided on 21st February, 2002.

(On appeal from the judgment of the Lahore High Court; Multan Bench, dated 16‑10‑2001 passed in Appeal No. 2779 of 1996).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Consent decree, setting aside of‑‑‑Plea of fraud and misrepresentation‑‑‑Petitioner filed a suit against allottees of land and on the same day, on the basis of statement made by attorney of the allottees of the suit‑land, got the suit decreed in his favour‑‑‑Allottees filed application under S.12(2), C.P.C. for setting aside the consent decree on the plea of fraud and misrepresentation‑‑‑Trial Court set aside the decree and the order was maintained by Appellate Court and as well as by High Court in exercise of revisional and Constitutional jurisdiction respectively‑‑‑Validity‑‑‑No reason appeared as to why the petitioners should have felt the necessity of filing of suit and getting consent decree on the same day without even calling the allottees before the Trial Court to make statement as to whether they had given power of attorney‑‑‑Petitioners should have insisted that the allottees should come before the Trial Court and make statement so that their title might be perfected beyond reasonable doubt‑­‑Proceedings having been initiated and concluded summarily without there being any notice to the allottees, same were rightly held to be the result of fraud and collusion‑‑‑Supreme Court observed that the possession of the property and mesne profits for the whole period could be recovered by the allottees‑‑‑Findings of facts recorded by the Courts below did not suffer from misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was refused.

Malik Noor Muhammad Awan, Advocate, Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st February, 2002.

2003 S C M R 770

[Supreme Court of Pakistan]

Present: Ajmal Mian, Munawar Ahmad Mirza and Khalil-ur-Rehman Khan, JJ

SALEEM MUHAMMAD ---Petitioner

versus

KHADIJA BAI through Legal Heirs and 6 others---Respondents

Civil Miscellaneous Applications Nos. 175/K and 234-K in Civil Appeal No. 256 of -1995, decided on 28th May, 1997.

Supreme Court Rules, 1980---

----O. XXXIII, R. 6---Civil Procedure Code (V of 1908), S.12(2)--­Reconsideration of decision of petition for leave to appeal---Compromise between contesting parties---Petition for leave to appeal was disposed of by Supreme Court in view of compromise arrived at between the contesting parties---Effect on pro forma respondents---Reconsideration of the decision on petition for leave to appeal was sought on the ground that the same was decided without hearing the pro forma respondents---Validity---Technically it was correct that the pro forma respondents should have been given notice of filing of compromise application---Pro forma respondents on their own showing did not prefer to enter appearance in the Supreme Court, therefore, they could not complain about failure to provide hearing to them before disposing of the petition for leave to appeal in terms of compromise---Pro forma respondents having not signed the compromise application were not bound by the same---Supreme Court clarified that non-signing of the compromise application by the pro formal respondents would not vitiate the Court's order disposing of the petition for leave to appeal as the pro forma respondents had not challenged the order and the same was deemed to have been accepted---Application was dismissed.

Ali Akbar, Advocate-on-Record for Applicants/L.Rs. of Respondent No. 5.

Mansoorul Arfin, Advocate instructed by A. Aziz Khan, Advocate-on-Record for Petitioner.

Z.U. Ahmad, Advocate instructed by M.S. Ghaury, Advocate­on-Record for Respondents Nos. l and 2.

Rehasul Hassan Farooqi, Advocate instructed by S.M. Abbas, Advocate-on-Record for Respondent No.7.

Date of hearing: 28th May, 1997.

2003 S C M R 774

[Supreme Court of Pakistan]

Present: Javed 1qbal and Tanvir Ahmed Khan, JJ

MUHAMMAD BASHIR and others---Petitioners

versus

CHIRAGH DIN through Legal Heirs and others---Respondents

Civil Petition for Leave to Appeal No.2728/L of 2000 and Criminal Original Petition No. 8/L of 2001; decided on 20th May, 2002.

(On appeal from the judgment dated 19-10-2000 of the Lahore High Court, Lahore, passed in Civil Revision No. 1061-D of 1988).

Specific Relief Act (I of 1877)---

----Ss. 12 & 27(b)---Constitution of Pakistan (1973), Art.185(3)--­Specific performance of agreement to sell---Bona fide purchaser for value without notice---Failure to prove that the defendants had knowledge of prior agreement---Plaintiff asserted that the owner of suit property had executed agreement to sell in his favour and has received consideration amount---Owner admitted execution of the agreement but denied receipt of any consideration amount from the plaintiff---Owner contended that, despite repeated demands, the plaintiff failed to pay the consideration amount, therefore, the owner sold the property to defendants---Trial Court decreed the suit in favour of the plaintiff and the judgment and decree passed by the Trial Court was maintained by the Appellate Court---High Court in exercise of revisional jurisdiction 'scanned the whole evidence and dismissed the suit for the reason that the plaintiff had neither asserted in his plaint that the defendants had knowledge about the prior, agreement executed in favour of the plaintiff, nor the witnesses appearing on behalf of the plaintiff proved the same--­Validity---High Court after evaluating the entire evidence had determined a factual controversy qua the knowledge and notice to the defendants respecting the sale agreement in favour of the plaintiff---No legal infirmity was pointed out in the judgment warranting interference by Supreme Court---Leave to appeal was refused.

Rao Munawar Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 20th May, 2002.

2003 SCMR 776

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

GHULAM MUHAMMAD through Legal Heirs and others---Petitioners

versus

ALLAH DAD through Legal Heirs and others---Respondents

Civil petition for Leave to Appeal No.2350/L of 2001, decided on 23rd 2003

(On appeal from the judgment, dated 22-5-2001 of the Lahore High Court, Multan Bench, Multan, passed in Regular Second Appeal No. 592 of 1976).

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

----S. 21---Land Reforms Regulation, 1972 (M.L.R. No.115), S.25--­Constitution of. Pakistan (1973), Art.185(3)---Pre-emption---Suit--­Principle of sinker ---Applicability---Pre-emptors associated a stranger with them as plaintiff---High Court dismissed the suit of pre-emptors on the ground that a stranger could not be arrayed as plaintiff to exercise right of pre-emption ---Pre-emptors contended that joining of a stranger in a suit for pre-emption was a procedural defect which could be cured at any time by the Courts under O.1, R.10, C.P.C. with or without any application made in that behalf and that the principle of sinker as applicable in the case of a vendee would not be attracted to pre-emptor--­Validity---Vendee/tenant loses his superior right on the basis of his tenancy over the entire property by associating a stranger in the sale­deed, principle of sinker is applicable to the pre-emptors whose right was some time considered piratical by associating a person having no right--­Leave to appeal was granted by Supreme Court to consider the contentions of the pre-emptors.

Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 ref.

Mian Allah Nawaz, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd April; 2002.

2003 SCMR 779

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD HUSSAIN ---Petitioner

versus

ABDUL QUDDUS and, others---Respondents Civil Petition No. 3615/L of 2001, decided bn 28th March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 6-8-2001 passed in S.A.O. No.230 of 2001).

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

----S. 52---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--­Constitution of Pakistan (1973), Art. 185(3)---Doctrine of lis pendens--­Applicability---Authority to withdraw application for interim injunction-­-Son of the counsel of the petitioner was working as his junior--- Application for interim injunction pending before Trial Court was withdrawn by the son of the counsel---Petitioner sought recalling of the withdrawal order but Trial Court declined---Order was maintained by High Court on the ground that the son must be deemed to have been authorized by the counsel of the petitioner to make the statement, therefore, the statement was not to be treated as unauthorized--­Validity---If during the pendency of the suit, the respondents would deal with the property, the same might be defended on the ground of rule of lis pendens---Supreme Court declined to interfere in the interim orders passed by the Courts below---Leave to appeal was refused.

Mian Sarfraz-ul-Hassan, Advocate Supreme Court for Petitioner.

Nemo for Respondents. Date of hearing: 28th March, 2002.

2003 S C M R 780

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

BAQAR---Petitioner

versus

ALLAH DITTA and others---Respondents

Civil Petitions Nos. 1206/L and 1207/L of 2002, decided on 14th May, 2002.

(On appeal from the judgment. dated 22-3-2002 passed by Lahore High Court, Lahore in Civil Revisions No. 1.219 and 1220 of 1999).

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

Constitution of Pakistan (1973), Art.185(3)---Gift---Proof---Mutation an exclusive and sole proof to determine question of ownership---Failure to prove delivery of possession and declaration of gift---Owner of the suit-­land denied making of gift in favour of defendant---Suit was filed to assail gift mutations attested in favour of the defendant---Plea raised by the plaintiff was that in fact he leased out the suit-land in favour of the defendant but through deception, the mutations of gift had been procured---Defendant failed to prove the factum of possession by leading cogent and concrete evidence---Evidence was silent as to where, when. why and before whom the gift was made by the plaintiff---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed in favour of plaintiff---High Court in exercise of revisional jurisdiction maintained the judgment and decree passed by the Appellate Court---Validity---No evidence was available to prove that pursuant to gift, physical possession of the suit-land was handed over to the defendant ---Factum of mutation could not be considered as exclusive and sole proof to determine the question of ownership---Essential ingredients to constitute a valid gift around which the case of defendant revolved were lacking---Conclusion as derived by the Appellate Court duly concurred by High Court being well-reasoned, could not be reversed on flimsy grounds---Defendant failed to point out any serious illegality or infirmity in the judgment passed by High Court, warranting interference---Leave to appeal was refused.

Ch. Bashir Ahmed, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners (in both Petitions).

Nemo for Respondents:

Date of hearing: 14th May, 2002.

2003 SCMR 783

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

Mahr MUHAMMAD IQBAL --- Petitioner

versus

Subedar MUHAMMAD ZAMAN KHAN and others---Respondents

Civil Petition for Leave to Appeal No.2149/L of 1999, decided on 22nd April, 2002.

(On appeal from the judgment, dated 12-10-1999 of the Lahore High Court, Multan Bench, Multan, passed in Regular First Appeal Nos. 51 of 1994).

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.72---Constitution of Pakistan (1973), Art.185(3)---Agreement to sell-Execution ---Proof--­Attorney executed the agreement after death of one of the owners/principals---Defendants denied execution of the agreement to sell and alleged the same a result of fraud-and fabrication---Plaintiff failed to prove presence of marginal witnesses at the time of execution of the agreement ---Executant of the agreement was attorney appointed by, the owners of the suit property---Plaintiff did not know the executant/attorney---Agreement was executed by the attorney two years after the death of one of the owners/principals---Trial Court and High Court dismissed the suit and appeal respectively---Validity---Attorney became inoperative and a nullity in the eyes of law in view of death of one of the owners/principals---Plaintiff failed to point out any misreading or legal flaw in the judgments of the Courts below warranting interference by Supreme Court---Leave to appeal was refused.

Malik Muhammad Rafiq Rajwana, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd April, 2002.

2003 SCMR 785

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD RAMZAN---Petitioner

versus

ZULFIQAR AHMAD---Respondent

Civil Petition No.743/L of 1999. decided on 20th May 2002.

(On appeal from the judgment/order dated 11-3-1999 passed by Lahore High Court, Lahore in C. R. No. 1552-D of 1997).

Limitation Act (IX of 1908)---

----S. 5---Constitution of Pakistan (1973), Art.185(3)---Condonation of delay---Ailment of petitioner---Petition was barred by 9 days and condonation of delay was sought on the ground that the doctor had advised bed rest to the petitioner for one month---Medical Certificate did , not indicate that the petitioner was suffering from such disease on account of which he was not in a position to contact his counsel-- -Petitioner failed to explain that there was no other male member in his family to contact his counsel---Effect--­Delay. in filing of the petition was not condoned---Petition was dismissed.

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

Nemo for Respondent.

Date of hearing: 20th May, 2001.

2003 S C M R 787

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman and Faqir Muhammad Khokhar, JJ

BASHIR AHMED and others---Petitioners

versus

MUHAMMAD ISHAQ---Respondent

Civil Petition No. 334-L of 2002, heard on 18th March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 30-11-2001 passed in Regular Second Appeal No. 2027 of 1998), Punjab Pre-emption Act (I of 1913)---

----S. 21---Constitution of Pakistan (1973), Art.183(3)---Right of pre­emption ---Co-owner---Proof---Entry in Jamabandi (Record of Rights)--­Possession of pre-emptor in specific portion of Khata---Pre-emptor claimed the right of pre-emption on the basis of being co-owner in the suit-land---Judgment and decree passed by the Trial Court was upheld by High Court ---Pre-emptor was shown in ownership column of Jamab ndi to be owner of land measuring 10 Marlas over which a house had been constructed---Contention of the vendee was that the suit-land was agriculture in nature and the pre-emptor being owner in residential area in joint Khata could not exercise right of pre-emption ---Validity---Entry in ownership column was in the name of pre-emptor which would relate to the entire land mentioned in the Khata---Findings of Appellate Court that the pre-emptor was owner in the Khata only to the extent of land measuring 10 Marlas over which a house had been constructed, was based on misreading of record---Findings recorded by High Court affirming the findings of Trial Court in favour of pre-emptor, did not suffer from any misreading or misconstruction of any material piece of evidence---Leave to appeal was refused.

Ihsan-ul-Haq Chaudhry, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 18th March, 2002.

2003 S C M R 789

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD RASHID and others---Petitioners

versus

SHAHID AZIZ and.others---Respondents

Civil Petition No. 1794/L of 1998, decided on 24th Aril, 2002.

(On appeal from the judgment dated 21-10-1998 passed by the High Court, Lahore in R. F. A. No. 147 of 1996).

Specific Relief Act (I of 1877)---

----Ss. 12---Qanun-e-Shahadat (10 of 1984), Arts.72, 78 & 79--­Constitution of Pakistan (1973), Art. 185(3)---Agreement to sell---Proof-­-Strangers becoming marginal witnesses---Plaintiff filed suit for specific performance of agreement to sell executed by defendant in his favour--­Defendant denied execution of any such agreement---Evidence of the witnesses produced by plaintiff to prove the execution of the agreement was at variance with each other with respect to the actual place where the agreement was written---Attesting witnesses admitted that they were not known to the parties and just happened to be at the place by chance where the agreement was written and the parties requested them to become marginal witnesses of the document---Trial Court as well as the High Court concurrently dismissed the suit and appeal filed by the plaintiff---Validity---Such was a strange conduct on the part of the parties inviting strangers to become witnesses to the execution of a document and that the attesting witnesses had not sought identification of the alleged owner executing the document---Reasons advanced by the Courts were neither unsound nor whimsical---Supreme Court declined to take exception to the concurrent findings of the two Courts below--­Leave to appeal was refused.

M. Saleem Sahgal, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 24th April, 2002.

2003 S C M R 792

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMMAD SIDDIQUE --- Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondents

Civil Petition No.780/L and Civil Miscellaneous Application No.231/L of 2002, decided on 13th March, 2002.

(On appeal from judgment, dated 14-1-2002 passed by the Lahore High Court, Lahore in Writ Petition No. 1126 of 1984).

Specific Relief Act (I of 1877)---

----Ss. 12, 27(b) & 42---Constitution of Pakistan (1973), Art.185(3)--­Bona fide purchaser for value without notice---Proof---Sale receipt whether a proof of agreement---Specific performance of agreement to sell was sought by the plaintiff---Defendants resisted the suit on the principle that they were bona fide purchasers for value without notice of the prior agreement in favour of the plaintiff---Defendants relied upon a sale receipt regarding payment of consideration amount in their favour by the owner of .the suit property, allegedly issued before the agreement to sell---Defendants had not referred to the agreement in their favour which was executed subsequently on the basis of the sale receipt---On the contrary the execution of agreement by the plaintiff's side had proved through the testimony of scribe and marginal witness---Owner of the suit property, in his written statement had not mentioned execution of the agreement in favour of the defendants and appearing as witness had repudiated the alleged submission of written statement by him---Sale receipt in favour of the defendants was a forged and fabricated document as the same was alleged to be written by special attorney of the owner and the owner had denied execution of any special power of attorney in his favour---Findings of both the Courts below on the issue had been rightly maintained by the High Court---Defendants failed to point out an legal infirmity in the judgment of High Court warranting interference b; Supreme Court---Leave to appeal was refused.

Ahsan Bhone, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th March, 2002.

2003 S C M R 794

[Supreme Court of Pakistan]

Present: Javed 1qbal and Tanvir Ahmed Khan, JJ

MUHAMMAD RAFIQUE and another---Petitioners

versus

MUHAMMAD ANWAR and others---Respondents

Civil Petitions for Leave to Appeal No.3160/L of 2000, decided on 20th May, 2002.

(On appeal from the judgment, dated 8-12-2000 of the Lahore High Court, Lahore, passed in Civil Revision No. 1531-D of 1985).

West Pakistan Board of Revenue Act (XI of 1957)---

----S. 7---West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S.15---Constitution of Pakistan (1973), Arts.199 & 185(3)--­ Consolidation proceedings---Clerical/typographical mistake, correction of ---Revisional jurisdiction of Board of . Revenue---Compromise was arrived between the parties in consolidation proceedings and the same was accepted by the, Board of Revenue---Petitioner approached Board of Revenue through revision petition against order of Additional Commissioner (Consolidation) whereby certain clerical mistakes in his earlier order were made on the basis of compromise arrived at between the parties---Board of Revenue found that the Additional Commissioner (Consolidation) was right in allowing clerical/typographical errors occurring in his order which was passed on the oasis of compromise between the parties---Such order of Board of Revenue was assailed before High Court in Constitutional petition--High Court after considering relevant material found that correction was rightly allowed by the revenue hierarchy as the same was a result of compromise arrived at between the parties and the order passed by the Additional Commissioner (Consolidation) as well as Board of Revenue were within the legal parameters and within their domain-.-Scope of High Court pertaining to consolidation matter being very limited and with sound and cogent reasons, the High Court refused to interfere in the matter--­Judgment passed by the High Court was not open to exception---Leave to appeal was refused.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Kh. Tariq Masood, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advticate-on-Record for Respondents.

Date of hearing: 20th May, 2002.

2003 SCMR 797

[Supreme Court of Pakistan]

Present: Munir A. Sheikh,. Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

FATEH SHER ---Petitioner

versus

MUHAMMAD ZUBAIR---Respondent

Civil Petition No.756/L of 2002, decided on 18th March, 2002.

(On appeal from the judgment dated 29-1-2001 passed by Laho High Court, Lahore in R. F. A. No. 509 of 20`01).

Civil Procedure Code (V of 1908)---

-O. XVII, R. 3-Constitution of Pakistan (1973), Art. 185(3)---Closing of evidence---Despite many opportunities for recording of evidence, the plaintiff failed to produce any evidence---Trial Court proceeded under O.XVII, R.3, C:P.C., closed the evidence and the suit was dismissed for no evidence---Judgment and decree passed by the Trial Court was maintained by High Court in exercise of appellate jurisdiction--­Validity---Order passed by Trial Court for clesing of evidence was ih accordance with law, as the same was passed on the date which was fixed on the plaintiff's request after affording him a number of

opportunities for production of evidence---Dismissal of appeal by High Court by affirming the judgment and decree of Trial Court did not suffer from any illegality---Leave to appeal was refused. [p. 798] A

Ch. Ghulam Rasul Warraich, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 18th March, 2002.

2003 S C M R 799

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

ABDUL RASHID alias SHEDA MOTA and another---Petitioners

versus

THE STATE---Respondent

Criminal Petitions Nos.293-L and 378-L of 2002, decided on 30th October, 2002.

(On Appeal from the common judgment of Lahore High Court, Lahore passed in Criminal Appeal No.,15/J of 1996 and Criminal Appeal No.284 of 1996 respectively).

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

----S.302/34---Criminal. Procedure Code (V of 1898), S.239--­Constitution of Pakistan (1973), Art. 185(3)---Joint trial---Accused were nominated in both the F.1.Rs.---Presence of eye-witnesses at the scenes of occurrence was established who were quite natural witnesses and despite being closely related to the deceased were found entirely independent---Role of each accused in each occurrence having been specifically described by the eye-witnesses, non-recovery of crime empty from the place of occurrence would not undo the direct evidence of natural witnesses of the occurrence---Ocular testimony was entirely independent, confidence-inspiring and of unimpeachable character which was corroborated by motive and medical evidence---Accused had committed two murders within short interval in the same transaction with the continuity of intention and action for the same motive---Trial Court in the joint trial of the accused in the two cases registered at different police stations, had framed the charge jointly, recorded the evidence of the witnesses of the two cases separately and provided them full opportunity of cross-examination---Accused having the common grievance against the deceased while acting in furtherance of their common intention had committed their murder one after the other at two different places in the same sequence by using the same weapons and thus the commonality of acts committed by the accused would form part of the same transaction and the joint trial did not suffer from any legal defect and the disposal of the two separate cases through common judgment at the joint trial was not illegal, which even had not caused any prejudice to the accused---Two murders had been committed by the accused in the same transaction by using the same weapon and the case of the first occurrence admittedly being triable by the Court established under the Suppression of Terrorist Activities (Special Courts) Act, 1975, the second case forming part of the same transaction in which the same weapon was used, was also triable by the Special Court---Accused had committed the murder of two innocent persons in a desperate manner without any background of enmity except the grudge on account of their quarrel with the deceased two days prior to the occurrence on a very petty matter---Accused with the intention to kill both the deceased at the same time had attacked them at their places of business with short interval and notwithstanding that what role was played by them in the two occurrences, they were equally responsible for taking lives of the two deceased and in both the cases no mitigating circumstance was available in favour of any one of them for lesser punishment--­ Convictions and sentences of accused were maintained in circumstances and leave to appeal was refused to them accordingly.

(b) Criminal trial----

----Evidence---Corroboration---Principle---Where direct evidence is credible, truthful and trustworthy and is deemed sufficient to establish the charge, then corroboration from any other source is not required--­Rule of corroboration in the criminal administration of justice is not a mandatory rule to be observed in each case, rather it being a rule of abundant caution, is applied to satisfy the mind and ensure the truthfulness of the direct evidence.

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

----S.239---Joint trial---"Same transaction"---Connotation---Joint trial of more than one cases in which the offence is committed by the accused jointly in the same transaction is permissible in law if the essential conditions of continuity of intention and action are present---"Same transaction" is essentially one in which series of acts must be committed together in a manner to form a single transaction and if the essential element of continuity of action and proximity of time is available to connect the series of acts together so as to form the part of the same transaction, the two offences of same kind committed in the same series by the same accused, can be tried jointly.

Ch. Muhammad Ashraf Wahla, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in Criminal Petition No.293-L of 2002).

Ch. Ehsan Sabri, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in Criminal Petition. No.378-L of 2002).

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

Date of hearing: 30th October, 2002.

2003 SCMR 810

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

SAEE by Legal Heirs and 2 others---Petitioners

versus

Mst. SULTAN BIBI by Legal Heirs and 14 others---Respondents

Civil Petition No. 1790-L of 2000, decided on 12th March, 2002.

(On Appeal from the judgment and decree dated 23-6-2000 of the Lahore High Court, Lahore passed in R.S.A. No. 872 of 1977).

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

----S.45---Transfer of Property Act (IV of 1882), S.54---Constitution of Pakistan (1973), Art. 185(3)---Registered sale-deed---Preference over oral mutation of sale---Mutation of oral sale, setting aside of---Failure to invoke remedies before Revenue hierarchy---Plaintiffs claimed to be the owners of suit land on the basis of mutation of oral sale for payment of consideration accompanied by possession---Mutation, however, could not be attested on account of conviction of the owners of the suit-land in a murder case and the same was cancelled---Owners of the suit property sold the same to the defendants vide registered sale-deeds---Plea raised by the plaintiffs was that such oral sale would take precedence over a subsequent sale executed through registered sale deeds and the mutation in favour of the plaintiffs could not be brushed aside simply, for the reason that the mutation was not attested---Validity---Appellate Court and High Court had rightly come to the conclusion that the witnesses of plaintiffs had made discrepant and inconsistent statements regarding oral sale and passing of consideration to the owners which could not be believed---Oral sale and unattested mutation effected in lieu of the same when taken into consideration in juxtaposition to registered sale-deeds and subsequent attested mutations, the latter would prevail and get precedence over the former---Plaintiffs did not choose to challenge the mutations attested subsequent to the registered sale-deeds before the Revenue hierarchy which was the legal course available to them according to law---No misreading and non-appraisal of evidence was found in the concurrent findings of two Appellate Courts---Judgment and decree passed by the High Court was maintained as the plaintiffs failed to point out any illegality---Leave to appeal was refused.

Ch. Mushtaq Ahmad .Khan, Senior Advocate Supreme Court with S. Abul Aasim Jaferi ,Advocate-on-Record for Petitioners.

Ch. Abdul Wahid Ali, Advocate Supreme Court with Ch. Mehdi Khan Mehtab for Respondents Nos. 7 to 11, 13 and 14.

Date of hearing: 12th March, 2002.

2003 SCMR 813

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed lqbal, JJ

ADMINISTRATOR, MUNICIPAL CORPORATION---Appellant

versus

MUHAMMAD ARSHAD and others---Respondents

Civil Appeals Nos. 1420 to 1424 of 1998, decided on 23rd November, 2001:

(On Appeal from the judgment, dated 22-5-1998 of La ore High Court, Multan Bench, passed in Writ Petitions Nos.9997 10225 of 1997, s336, 344 and 1386 of 1998). ''

(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules. 1974---

----R.17-A---Notification No.SR.III/2/42/92, dated 18-2-1997---Local Government Letter No.S0.11(LG) 10-7/96-P, dated 17-1-1995--­Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider that whether the provisions of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were applicable to the servants of the Municipal Corporation; that whether the letter/instructions applying the provisions of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, to Local Council, employees had the effect of amending West Pakistan Municipal Committees Rules, 1969; and that whether the High Court was right in applying the provisions of R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, to the persons who were governed by West Pakistan Municipal Committees Service Rules, 1969.

(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R.17-A---Notification NO.S.R.HI/2/42/92, dated 18-2-1997---Local Government Letter No.SO.II(LG)10-7!96-P, dated 17-1-1995---Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983, R.22---Employees of Municipal Corporation---Provisions of Wegl Pakistan Municipal Committees Service Rules, 1969---Applicability--­Contention of the Municipal Corporation was that its employees were governed by the provisions of West Pakistan Municipal` Committees Service Rules, 1969, therefore, the provisions of R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were not applicable--Validity---Municipal Administration Ordinance, 1960, having been repealed, provisions of West Pakistan Municipal Committees Service Rules, 1969, were not applicable---Employees of Municipal Corporation by virtue of R.22 of Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983, were governed by R.17-A of Punjab Civil Servants (Appointment and Conditions of ,Service) Court declined to interfere with the judgment High Court---Appeal was dismissed.

Farooq Hassan Naqvi, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellant.

Respondents: Ex parte (in C. As, Nos. 1420, 1423 and 1424 of 1998).

Malik Ainul Haq; Advocate Supreme Court for Respondent No. 2 (in C. A. No. 1421. of 1998):

N.A. Butt, Advocate Supreme Court for Respondent No. l (in C.A. No.142~2 of 1998). .

Date of hearing: 8th October, 2001 .

2003 SCMR 817

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Muhammad Bashir Jehangiri, JJ

ABDUL KHALIQUE---Petitioner

versus

UNIVERSITY OF KARACHI through -Registrar and 2 others---Respondents

Civil Petition No. 136-K of 1998, decided on 11th November, 1998.

(On appeal from the judgment, dated 5-9-1997 of the High Court of Sindh at Karachi passed in C. P. No.D-383 of 1996).

Constitution of Pakistan (1973)---

-Art.212(3)---Selection by Selection Board---Vested right ---Time­-barred petition---Petitioner was selected by Selection Board but the Appointing Authority did not. appoint him to the post---Validity---Mere selection by Selection Board did not confer a right on the petitioner to be appointed for the post when his selection was not approved by the Appointing Authority---Grievance raised by the petitioner was, of individual nature---No question of law of public importance .was involved warranting interference under Art.212(3) of the Constitution---Petition was barred by 95 days and no valid ground existed for condonation of delay---Leave to appeal was refused.

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

K.A. Wahab, Advocate-on-Record for Respondent No. 1.

Muhammad Saleem Sammo, Additional Advocate-General, Sindh (on Courts Notice).

Date of hearing: 11th November, 1998.

2003 SCMR 819

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddigui and Rana Bhagwandas, JJ

GOVERNMENT OF SINDH---Petitioner

versus

ABDUL SATTAR SHEIKH and others-. --Respondents

Constitutional Petition for Leave to Appeal No.526-K of 1999, decided on 27th April, 2000. .

(On Appeal from judgment, dated 6-5-1999 of High Court of Sindh, passed in Constitution Petition No. 1765 of 1995).

General Clauses Act (X of 1897)---

----S.21---Constitution of Pakistan (1973), Art. 185(3)---Civil service--­Principle of locus poenitentiae---Applicability---Government issued a notification whereby promotion of respondents was ordered to take effect after a period . of more than two years---Respondents had enjoyed facilities emanating from the notification when another notification was issued and the facilities ere withdrawn-- -High Court decided the matter in favour of the respondents by holding that on the principle of locus poenitentiae the facilities/privileges could not be withdrawn and also observed that before issuance of second. notification neither any notice was given to the respondents nor opportunity of being heard was afforded to them---Plea raised by the Government was that the second notification was issued to rectify a mistake but failed to point out any mistake in the earlier notification ---Leave to appeal was refused.

Ainuddin Khan, Additional Advocate-General, Sindh for Petitioner.

Respondents Nos. l and 3 in person.

Date of hearing: 27th April, 2000.

2003 S C M R 822

[Supreme Court of Pakistan]

Pxesent: Ajrnal Mian, Sh. Ijaz Nisar and Sh. Riaz Ahmad, JJ

SHAHEEN AIRPORTS SERVICES---Petitioner

versus

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTIONS and others---Respondents

Civil Petitions Nos. 194-K and 195-K of 1997, decided on' 17th November, 1997.

(On appeal from the judgment, dated 29-4-1997 of the High Court of Sindh, Karachi, passed iii Miscellaneous Appeals Nos. 46 and 47 of 1995).

Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss.20(1) & 23---Provincial Employees' Social Security (Contribution) Rules, 1968, R.6---Constitution -of Pakistan (1973), Art.185(3)--­Contribution, increase in---Petitioner-employee, contented that demand fOr increase of 50% amount under S.23 of Provincial Employees' Social Security Ordinance, 1965, read with R.6 of Provincial Employees' Social Security (Contribution) Rules, 1968, was not warranted by law as it could not be concluded that. the petitioners failed to pay on the due date the contribution payable .under S.20(1) of Provincial Employees' Social Security Ordinance, 1965---Validity---Leave to appeal was granted by Supreme Court to consider; whether the. facts of the present case attracted the ratio decidendi of the judgment of Supreme Court in case titled M. Imamuddin v. Mst. Surriya Khartum through Legal Heirs reported as PLD 1991 SC 317.

Shaheen Airport Services v. Sindh Employees Social Security institution 1994 SCMR 881 and M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs PLD 1991 SC 317 rel.

Siddique Mirza, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing; 17th November, 1997

2003 SCMR 824

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ.

Dr. Syed ABUL HASSAN NAJMEE---Petitioner

versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Civil Petition No.262/L of 1999, decided on 10th May, 2002.

(On Appeal from the judgment, dated 18-12-1998 passed by the Punjab Subordinate Judiciary Service Tribunal at Lahore High Court, Lahore in Service Appeal No.7 of 1993).

Punjab Subordinate Judiciary Service Tribunals Ordinance (II of 1991)---

----S. 5---Government of Punjab Order . No. E-IL23-6/85, dated 11/17-2-1993 and Finance Department Circular No.FD-SRI-9-3/86, dated 20-7-1988---Constitution of Pakistan (1973), Art.212(3)---Special allowances for persons having qualified as LI.M. and Ph.D.---Civil servant possessed L.L.M. degree and also qualified his Ph.D.---Claim of the civil servant was that special allowance for L.L.M. be granted in addition to Ph.D. allowance---Punjab Subordinate Judiciary Service Tribunal refused to grant the claim of the civil servant---Validity---No rule or policy decision of the Government existed which entitled the civil servant to the Special allowance for L.L.M. degree in addition to Ph.D. allowance---By placing a rider by Government of Punjab Order No.E-II­23-6/85, dated 11/17-2-1993, the Government had neutralized its earlier letter dated 20-9-1990---View taken by the Tribunal being. reasonable and unexceptionable, Supreme Court declined to interfere with the same--­Leave to appeal was refused.. [p. 825] A

M. Anwar Ghumman, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioner.

Ms. Fowzi Zafar, A.A.-G. for Respondents.

Date of hearing: 10th May,.2002.

2003 S C M R 826

[Supreme Court of Pakistan]

Present: Nasir Aslam Zahid and Kamal Mansur Alarn, JJ

Major (Retd.) ABDUL WAHEED KHAN-- -Petitioner

versus

FEDERAL SERVICE TRIBUNAL and others---Respondents

Civil Petition No. 362 -K of 1999, decided on 17th August, 1999.

(On Appeal from the judgment of the Federal Service Tribunal, Karachi, dated 21-4-1999, passed in Appeal No.55(K) of 1999).

Service Tribunals Act (LXX of 1973)---

----S:4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Limitation---Second representation, rejection of---Civil servant was reverted in the year 1992, he filed representations repeatedly but the Authorities did not reply---Finally on 31-12-1998, the departmental appeal filed by the civil servant was rejected---Appeal before Service Tribunal was filed on 20-1-1999, but the same was dismissed as time-barred---Plea raised by the civil servant was that the appeal before Service Tribunal was filed within 30 days of the order of Departmental Appellate Authority thus the same was within limitation--- Validity---Even if the-order of reversion was dated 21-7-1992 but for the first time the Competent Authority had rejected the representation in the year 1998---Civil servant's appeal before Service Tribunal filed within 30 days of such order of reversion by the Departmental Appellate Authority was in time---If any representation of the civil servant was earlier rejected by the Departmental Authority, another order by the Departmental Authority passing a similar rejection order on second representation would not extend the period of limitation---Supreme Court converted the petition into appeal, judgment of Service Tribunal was set aside and the case was remanded to the Tribunal for decision afresh.

Ali Akbar, Advocate Supreme Court for Petitioner.

S. Tariq Ali, Standing Counsel for Respondents Nos. l and 2!Federai Government.

Marian Bhatti, Assistant Manager, Law Department, Pakistan Steel Mills for Respondents Nos.3, 4 and 5/Pakistan Steel Mills Corporation.

17th August, 1999

2003 S C M R 829

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary, Civil Secretariat, Lahore and others---Petitioners

versus

MUHAMMAD KHAN and another---Respondents

Civil Petitions Nos. 195/L and 199/L of 2002, decided on 16th May, 2002.

(On appeal from the judgment, dated 13-8-2001 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 1716 and 1667 of 2000).

Constitution of Pakistan (1973)---

----Art.212(3)---Petition for leave to appeal---Barred by limitation--­Delay caused by Government functionaries---Appeals filed by civil servants were allowed by- Service Tribunal---Petitions against the judgments of Service Tribunal were assailed by Government which were barred by 89 and 97 days---Government failed to furnish any plausible justification on the basis of which the delay could be condoned---Delay appeared to be deliberate and intentional---Supreme Court directed the Authorities to take care of the matter and to conduct a thorough probe and further directed to fix the responsibility for the delay and action be initiated against the delinquents to stop such condemnable practice in future and compliance report be submitted to Supreme Court within prescribed time---Petitions were dismissed as time-barred.

A.H. Masood, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Petitioners (in both Cases).

Nemo for Respondents.

Date of hearing: 16th May, 2002.

2003 SCMR 830

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Rana Bhagwandas, JJ

GOVERNMENT OF SINDH---Petitioner

versus

ILYAS KHICHI---Respondent

Civil Petition for Leave to Appeal No. 493-K of 1999, decided on 28th, April, 2000.

(On appeal from the judgment, dated 26-5-1999 of Sindh Service Tribunal passed in Appeal No.74 of 1998).

Police Rules, 1934---

----R.12.8---Civil Servants Act (LXXI of 1973), S.22---Sindh Service Tribunals Act (XV of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Reinstatement---Probationer---Right of appeal---Civil servant was appointed in police and during his basic training, he was terminated from service on certain allegations---Neither any show-cause notice was issued, nor any opportunity was provided to the civil servant to defend himself ---Service Tribunal avowed the appeal and reinstated the civil servant in service ---Plea raised by the Authorities was that under the provisions of 8.12.8 of Police Rules, 1934, a probationer could be discharged from service without any show-cause notice--­ Validity---Officers against whom action was to be taken under R.12.8 of Police Rules, 1934, did not have any right of appeal but the officer being civil servant was governed by the provisions of Civil Servants Act, 1973---Right of departmental appeal being provided to the civil servant under Civil Servants Act, 1973, the provisions of R.12.8 of Police Rules, 1934, could not prevail over the same---Supreme Court declined to interfere with the order passed by Service Tribunal---Leave to appeal was refused.

Government of Sindh v. Muhammad Hussain and 6 others 2000 SCMR 75 fol.

Ainuddin Khan, Additional Advocate-General, Sindh and A.A. Siddiqui, Advocate-on-Record for Petitioner.

M.M. Aqil Awan, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Respondent.

Date of hearing: 28th April, 2000.

2003 SCMR 833

[Supreme Court of Pakistan]

Present: Ajmal Mian, Munawar Ahmad Mirza and Khalilur Rehman Khan, JJ

MUNIR KHAN and others---Petitioners

versus

GOVERNMENT OF PAKISTAN and others---Respondents

Civil Petition for Leave to Appeal No.97-K of 1995, decided on 29th May, 1997.

(On Appeal from the order, d\ed 2-2-1995 of the High Court of Sindh, Karachi, passed in Constitutional Petition No.D-2520 of 1993).

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

----Arts.185(3) & 199---Constitutional petition, plea raised in---Onus to prove---Petitioners claimed to be residents of Katchi Abadi and denied ownership of Government over the disputed area---Plea raised by the petitioners was that the Government failed to produce in High Court, any plan or other documents to prove its ownership---Validity---Since the petitioners had approached the High Court, it was for them to have produced some reliable documentary evidence to show that the area in which houses of the petitioners were situated, did not belong to the Government---Petitioners could not shift burden on the Authorities--­Petitioners failed to show any legal right which could be enforced through Constitutional petition---Order passed by High Court was not interfered with---Leave to appeal was-refused.

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

----Art.185(3)---Human rights, enforcement of---Principles---Petitioners were unauthorized occupants of Government property---Eviction notices were issued by the Authorities---Constitutional petitions filed against the eviction notices were dismissed---Contention of the petitioners was that their case was covered under the human rights category as the petitioners were entitled to have a place to live as human beings---Validity---Such right of petitioners should be founded on some legal provisions--­Contention of the petitioners was repelled.

Ali Akbar, Advocate-on-Record for Petitioners.

S. Tariq Ali, Standing Counsel for Respondents

Date of hearing: 28th May, 1997.

2003 SCMR 837

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khald-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ASLAM HASSAN QURESHI-- Petitioner

versus

GOVERNOR, STATE BANK OF PAKISTAN and others-- -Respondents

Civil Petition No. 150-L of 2002, decided on 26th March, 2002.

(On Appeal from the judgment. dated 26-11-2001 of the Lahore High Court passed in Writ Petition No.20872 of 2001).

Banking Companies Ordinance (LVII of 1962)---

----S.41(A)---Constitution of Pakistan (1973), Art.185(3)---Employee of a .private Bank---Termination from service--Proceedings under S.41(A) of Banking Companies Ordinance, 1962---Failure to fix period during which the Bank employee was to remain dissociate from the post---State Bank of Pakistan on the basis of proceedings under S.41(A) of Banking Companies Ordinance, 1962, recommended removal of the petitioner from the post of Manager---Petitioner was a Manager of a private Bank and in implementation of the order of State Bank of Pakistan, the Bank terminated the services of the petitioner---Contention of the petitioner was that the effect of order passed by State Bank of Pakistan was temporary dissociation of the petitioner with the post and not termination of his services, as girder of termination of service was not permissible under the law---Validity---Orders by State Bank of Pakistan, had been passed mechanically by using the expression and phrases embodied in S.41(A) of Banking Companies Ordinance, 1962, without giving any reason as to how, a particular act of the petitioner, mentioned in the charge-sheet, fell within the expression used in the section to justify order thereunder--- State Bank of Pakistan failed to fix period during which the order of dissociation of the petitioner would remain effective, as it was a mandatory requirement---Leave to appeal was granted by Supreme Court to consider the contention of the petitioner.

Malik Muhammad Qayyum, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th March, 2002.

2003 S C M R 841

[Supreme Court.of Pakistan]

Present: Munawar Ahmed Mirza and Khalilur Rehman Ramddy, JJ

ASSISTANT ADMINISTRATOR, EVACUEE TRUST PROPERTY---Petitioner

versus

MUHAMMAD AYUB and others---Respondents

Civil Petition N0.243-h of 1996, decided tin 3rd June, 1997.

(On Appeal from the order, dated 13-5-1996 passed by High Court of Sindh, Bench at Larkana in Civil Revision No. 130 of 1994).

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

----S.10---Evacuee Trust Property, declaration of---Powers of Chairman, Evacuee Trust Properties Board---Immunity to such declaration--­Disputed property was transferred to plaintiff pursuant to auction duly approved by Additional Settlement Commissioner on 9-8-1960 and the transfer price was deposited on 17-3-1962---Chairman of the Board by his order dated 6-6-1974, declared the property as Evacuee Trust Property---Validity---Transfer in favour of plaintiff, by virtue of S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, acquired immunity from challenge, after June, 1968---Chairman had passed the order without notice or providing opportunity of hearing to the plaintiff---Order passed by the Chairman was not tenable.

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

----S.115---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art, 185(3)---Revision---Limitation---Condonation of delay---Plea of departmental procedural formalities---Authorities filed revision petition before High Court almost 122 days beyond the period of limitation prescribed under law ---Condonation of delay was sought on the plea of departmental procedural formalities---High Court declined to condone the delay and the revision was dismissed as time-barred--­Validity---Authorities had failed to show sufficient cause which might entitle them to discretion for condoning inordinate delay---Object of invoking Constitutional jurisdiction of Supreme Court was to foster justice and obviate wrong, rather than perpetuating an illegality--­Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Government of Punjab v. Muhammad Saleem PLD 1995 SC 396 fol

Ali Akbar, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd June, 1997.

2003 S C M R 844

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and

Khalilur Rehman Ramday, JJ

Syed IFTIKHAR HUSSAIN ZAIDI---Petitioner

versus

Mst. SHAFIQA BEGUM and 30 others---Respondents

Civil Petition No. 813-L of 1998, decided on 8th March, 2002.

(On Appeal from the judgment, dated 24-3-1998 of the Lahore High Court, Lahore passed in Civil Revision No.87 of 1993).

Specific Relief Act (I of 1877)---

----S.42---West Pakistan Land Revenue Act (XVII of 1967), S45 --- Civil Procedure Code (V of 1908), O.XVII, R.3---Constitution of Pakistan (1973), Art. 185(3)---Declaration of gift----Failure to produce evidence--­Mutation of inheritance---Non-availing of remedy under the provisions of West Pakistan Land Revenue Act, 1967---Suit for declaration was filed by the plaintiff on the ground that the suit property had been gifted in his favour by predecessor-in-interest of the parties---After the death of the predecessor-in-interest of the parties, mutation of inheritance was attested in favour of all legal heirs including both the parties- --Despite many opportunities, the plaintiff failed to produce his evidence---Trial Court dismissed the suit under O.XVII, R.3, C.P.C. and the dismissal order ,was maintained by Appellate Court below as well as by the High Court---Validity---Mutation of inheritance had been effected in the names of the legal heirs of the deceased owner---Plaintiff had not availed the remedies available to him under the provisions of West Pakistan Land Revenue Act, 1967, by challenging the. mutation of inheritance, which had become final---Plaintiff failed to point out any illegality or misreading in the judgment of High Court---Leave to appeal was refused.

Rafique Ahmad Bajwa, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Respondent No. 1 in person.

Respondent No. 12 in person.

Date of hearing: 8th March, 2002.

2003 S C M R 846

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Ch. MUHAMMAD SHARIF through Legal Heirs---Petitioner

versus

HASSAN DIN and others ---Respondents

Civil Petition No. 460-L of 1999, decided on 11th March, 2002.

(On appeal from the judgment, dated 27-1-1999 of the Lahore High Court, Lahore passed in R.S.A. No. 21 of 1990).

Constitution of Pakistan (1973)--

----Art.185(3)---Leave to appeal, grant of---Concurrent findings of three Courts below---Controversy raised in the case was concluded by all the forums below---Courts below had properly analysed/appreciated the evidence on record in its true perspective---No misreading or non-­reading in evidence or any jurisdictional error was found in the judgment passed by the High Court---Concurrent findings of all the three Courts below were not open to challenge--- Leave to appeal was refused.

Ch. Shahbaz Khurshid, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Saiful Malook, Advocate Supreme Court with Ch. Talib Hussain, Advocate-on-Record for Respondents.

Date of hearing : 11th March, 2002.

2003 S C M R 849

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD RAMZAN alias JANI --- Petitioner

versus

THE STATE---Respondent.

Jail Petition No. 105 of 2001, decided on 20th March, 2002. .

(On Appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 9-7-2001 passed in Criminal Appeal No. 1800 and Murder Reference No.4 of 2000).

Penal Code (XLV of 1860)--

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Prosecution evidence did not suffer from any material discrepancy and contradiction---Accused had been correctly identified by the witnesses in the identification parade and also in the Court as one of the culprits who had caused fire-arm injuries to the deceased---Eye-witnesses being not known to the accused prior to the occurrence, had no reason to make a false statement against him in a case of capital punishment---Crime empty recovered from the place of occurrence, had matched with the weapon subsequently recovered from the accused on his arrest—Case against accused having been corroborated by medical evidence. incriminating recoveries and his identification, acquittal of co-accused was not helpful to him---Accused did not deserve any leniency in the matter of sentence---Leave to appeal was consequently refused to accused by Supreme Court.

Syed Ali Hassan Gillani, Advocate Supreme Court for petitioner.

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

Date of hearing: 20th March, 2002.

2003 S C M R 854

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ

AMANUEL MASIH---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.77-L of 2002, decided on 26th June, 2002.

(On appeal from the judgment, dated 14th November, 2001 passed by Lahore High Court, Lahore in Criminal No.502 of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Petition for leave to appeal against acquittal of accused by High Court ---Limitation'--­Petition was barred by 55 days---Non-receipt of any notice by the complainant from 'the High Court was not a sufficient ground for condonation of delay particularly against the judgment of acquittal--­Impugned judgment even otherwise was based on correct appraisal of evidence which had' satisfied the principles laid down by the superior Courts for safe administration of criminal justice---Leave to appeal was consequently refused to the complainant by Supreme Court on the point of limitation as well as on merits.

Ch. Muhammad Amin Javaid. Advocate Supreme Court with Mahmuod A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 26th June, 2002.

2003 S C M R 855

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Ab6asi, JJ

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 123 of 2001, decided on 12th April, 2002.

(On Appeal from the judgment of Lahore High Court, Multan Bench, dated 25-7-2001 passed in Criminal Appeal No. 172 of 1998 and Murder Reference No,215 of 1998).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Presence of witnesses including the complainant in the house of occurrence at the relevant time was quite natural and beyond doubt---Accused had neither denied his presence in his house on the day of occurrence nor offered any explanation as to how and under what circumstances his deceased wife while sleeping with him in a room of his house had sustained injuries with the sharp-edged weapon on the sensitive part of her body---Bare denial of accused of knowledge of occurrence and not offering the required explanation had provided a strong corroboration to the eye-witness account to prove his guilt---Ocular testimony was further corroborated by medical evidence and the recovery of Chhuri at the instance of accused which was found stained with human blood---No direct or circumstantial evidence was available on record to suggest that the accused had acted under sudden provocation---Possibility of exchange of words between the deceased and accused as husband and wife on family affairs would not permit the accused to take such a cruel step of killing his wife---Accused had not even taken any such plea in his defence---No leniency could be given to accused in matter of sentence who on a very petty dispute had committed the murder of an innocent and helpless woman---Leave to appeal, was declined to accused in circumstances.

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

----Ss. 306, 307 & 308---Application and scope---Provisions of Ss.306, 307 & 308, P.P.C. would only attract in the cases of Qatl-i-Amd liable to Qisas under S.302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd had been awarded as Tazir under S.302(b) & (c), P.P.C.

Arshad Ali Ch., Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 12th April, 2002.

2003 S C M R 860

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ASHRAF MASIH alias ACCHHU---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.748-L of 2001, decided on 19th March, 2002.

(On appeal from the judgment of the Lahore High Court Lahore, dated 25-10-2001 passed in Criminal Appeal No. 17-J of 1997).

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

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Findings recorded by Trial Court were not based on Misreading or non-reading of any material piece of evidence---Accused had been convicted in accordance with the principles laid down by the Supreme Court for appraisal of evidence in criminal cases for safe administration of criminal justice---Impugned judgment did not suffer from any legal infirmity--­Leave to appeal was consequently refuse4 to accused by Supreme Court.

Syed Abul Aasim Wary, Advocate-on-Record for Petitioner, Nemo for the State, Date of hearing: 19th March, 2002.

2003 S C M R 862

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ASLAM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions Nos. 90 and 95 of 2001, decided on 19th April, 2002.

(On appeal from a common judgment of Lahore High Court, Lahore dated 20-3-2001 passed in Criminal Appeal No.515 of 1991 and Criminal Revision No. 311 of 1991 respectively).

Penal Code (XLV of 1860)---

---S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)--­Consumption of two hours time in lodging the F.I.R. at the police station situated at a distance of 9.5 kilometres from the place of occurrence was quite natural---Presence of injured eye-witnesses on the spot was -not questionable---Prosecution evidence had no material contradiction--­Ocular testimony was supported by medical evidence and the motive--­Accused had failed to establish his plea of alibi by any documentary evidence---Prosecution had proved the charge against the accused beyond all reasonable doubts---Leave to appeal was refused to accused by Supreme Court accordingly.

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Criminal Petition No.90 of the State (in Criminal Petition No.90 of 2001).

S.M. Abdul Wahab, Advocate Supreme Court and M. A. Zahid, Advocate-on-Record for Petitioner (in Criminal Petition No.95 of 2001).

Nemo for Respondents (in Criminal Petition No.95 of 2001).

Date of hearing: 19th April, 2002.

2003 S C M R 868

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ALI MUHAMMAD ---Petitioner

Versus

BASHIR AHMED and others---Respondents

Criminal Petition No.487-L of 2001, decided on 20th March, 2002.

(On appeal from the judgment, dated 4-7-2001 passed by the Lahore High Court in Criminal Appeal No.867 of 1996 and Murder Reference No.244 of 1996).

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

----S. 302---Appreciation of evidence---Recovery---Recovery of weapon of offence by itself without any other corroborative evidence is not a substantial piece of evidence.

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

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Recovery of weapon of offence by itself was not a substantial piece of evidence without any other corroborative evidence---Evidence of the prosecution witness that he had seen the accused on the fateful day carrying a hatchet was not sufficient for holding the case against accused having been proved beyond reasonable doubt---Said prosecution witness did not even state that the hatchet present in the Court was the same which the accused was carrying---Extra-judicial confession allegedly made by the accused was of no credence having been made before two persons at the same time---Finding of High Court about the case being of no evidence did not suffer from any illegality such as misreading or non-reading of any material piece of evidence---Leave to appeal was refused to complainant by the Supreme Court in circumstances.

Ch. M. Abdus Saleem, Advocate Supreme Court and M. Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th March, 2002.

2003 S C M R 870

[Supreme Court of Pakistan]

Present: Sheikh Riaz Ahmad Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

PROVINCE OF PUNJAB through Member (Settlement and Rehabilitation), Board of Revenue, Punjab, Lahore---Appellant

Versus

Mst. QAISER JEHAN BEGUM and others---Respondents

Civil Appeal No. 129 of 2002, decided on 27th August, 2002.

(On appeal from judgment, dated 9-10-2001 passed by the Lahore High Court, Lahore in Writ Petition No. 41-R of 1996).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)-----

----S. 14(1-A)---Chief Settlement Commissioner's Memo. No.192 Pol/74, dated 18-12-1974---Informer, right of ---Estoppel by conduct--­Department itself having supported the claim of the informers in parawise comments and before the High Court was estopped by conduct to take a somersault.

(b) New plea----

---which were available to the Department having not been taken earlier could not be allowed to be taken for the first time before the Supreme Court.

Muhammad Ramzan and others v. Member (Revenue)/CSC and others 1997 SCMR 1635; All Muhammad and others v. Chief Settlement Commissioner and others 2001 SCMR 1822, Bashir Ahmed and others v. Punjab University Academic Staff Association and others 1991 SCMR 377 and Syed Shaukat Hussain Rizvi v. K.B, Dr. Yar Muhammad Khan and others PLD 1974 SC 276 ref.

Maqbul Elahi Malik, Advocate-General, Punjab, with Zahid Farani Sheikh, A.A.G., Ch. Mushtaq Musood, Advocate Supreme Court and Kh. Mushtaq Ahmad. Advocate-on-Record for Appellant.

Syed Najamul Hassan Kazmi, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 5th July, 2002.

2003 S C M R 875

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

MUHAMMAD INAYAT and others-- -Appellants

Versus

FATEH MUHAMMAD and others---Respondents

Civil Appeal No. 147 of 2000, decided on 30th January. 2003.

(On appeal from the judgment, dated 7-2-2000 of the Lahore High Court. Lahore passed in Regular Second Appeal No, 55 of 1992).

Constitution of Pakistan (1973)-----

----Art.185(2)(d)(e)---Civil Procedure Code (V of 1908), S.112--­Supreme Court Rules, 1980, Part II, O.XII---Direct Civil Appeal to Supreme Court,--Maintainability---Dispute related to land--.Expression "subject-matter of dispute in the Court of first instance" occurring in Art.185(2)(d)(e) of the Constitution means that market property at the time of institution of the suit and also filing of appeal before Supreme Court should be more than Rs.50,000 and not the "valuation" fixed in the plaint---Supreme Court Rules, 1980 having overriding effect, O.XII in Part II of the said Rules regulates the appeal under Art.185(2)(d)(e) of the Constitution---Appellant was required to append with the appeal a certificate of valuation of the subject-matter--Where the appellants had appended the requisite certificate of value of subject-matter of dispute according to which the value Rs.50,000 and no Court's certificate had been filed by the respondents disputing the correctness of the said certificate, same shall be deemed to have gone unchallenged, as such, could be the basis to assume that value of the subject-matter of dispute given in it was correct to maintain appeal under Art. 185(2)(d)(e) of the Constitution---Principles.

The expression "subject-matter of dispute in the Court of first instance" to clauses (d) and (e) of Article 185(2) of the Constitution means that market value thereof at the time of institution of the suit and also filing of appeal before Supreme Court should be more than Rs.50,000 and not the "valuation" fixed in the plaint, for if that was the intention, the expression to that effect would have been used by the framers of the Constitution by adding the expression "as fixed in the plaint".

Rules framed by the Supreme Court under the Constitution have overriding effect: Order XII in Part II of the Supreme Court Rules regulates the appeals under Article 185(2)(d) and (e).

According to this rule, appellant is required to append with the appeal a certificate of valuation of subject-matter of dispute as prescribed in the Schedule appended to these rules. A certificate to the following effect is clearly reflective of the intention of framers of the. rules that value of the suit as fixed . in the plaint was not intended to be the determining factor for maintainability of appeal before this Court under Article 185(2)(d) and (e) of the Constitution but it was the market value of the subject-matter of dispute itself which was the basis for maintainability of appeal which was to be ascertained from the certificate of the counsel for the appellants:--

"VALUATION CERTIFICATE

"Certified that value of subject-matter of the appeal in the Court of First Instance and in Appeal was more than Rs.50,000. Accordingly maximum Court Fee Stamp of Rs.2,000 has been paid."

In the suit for recovery of possession of land according to the provisions of the Court Fees Act, notional value of subject-matter of dispute is to be fixed for the purposes of court-fee at fifteen times the amount of net profits accrued from the land in the preceding one year and for the purposes of jurisdiction at thirty times the amount of land revenue if the land is assessed to the land revenue which is not merely the real or market value of the land. The value thus fixed is relevant only for the purposes of payment of court-fee or determining the forum of appeal under the West Pakistan Civil Courts Ordinance, 1962 up to High Court and not before this Court, for as discussed above, in pre­ Constitutional period, the appeals from judgments and decrees of tire High Court before this Court were governed by sections 109 and 110, C.P.C. and thereafter under Article 185(2)(d) and (e) of the Constitution.

The words "value of the subject-matter of dispute in the Court of first instance" do not mean the value thereof as fixed in the plaint but the market value at the time of filing of the suit. In the present case with the memo. of appeal, counsel for the appellants has appended the requisite prescribed certificate of value of the subject-matter of dispute according to which it is more than Rs.50,000. No counter-certificate has been filed by the respondents disputing the correctness of the said certificate, therefore, the same shall be deemed to have gone unchallenged, as such, same could be the basis to assume that value of the subject-matter of dispute given in it is correct to maintain appeal under Article 185(2)(d) and (e) of the Constitution.

Rai Rajendra Kumar Ghosh Bahadur and others v. Rash Behari Mandal and others AIR 1931 PC 125; State of Maharashtra v. Mishrilal Tarachand Lodha and others AIR 1964 SC 457 and Sm. Rukamani Bai v. Joshi Ram Kishan Joshi Bhawani Shanker AIR 1950 All. 2420 ref.

Gul Zarin Kiani, Advocate Supreme Court for Appellants.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Respondents.

Date of hearing: 30th January, 2003.

2003 S C M R 881

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh and Muhammad Nawaz Abbasi, JJ

STATE through A.-G, Sindh, Karachi---Petitioner

Versus

HEMJOO---Respondent

Criminal Petition No. 115-K of 2002, decided on 24th February, 2003.

(On appeal from the judgment of High Court of Sindh, Circuit Bench, Hyderabad, dated 20-8-2002 passed in Criminal Appeal No. 36 of 2002).

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

----Ss. 9(b) & 21---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Excise Inspector on receipt of information went to the house of accused, made his personal search and then by making house search recovered "Charas" from the bedroom of the house without fulfilling the requirements of S.21 of the Control of Narcotic Substances Act, 1997---Authorized Officer under the law only in exceptional cases in which the search warrant could not possibly be obtained before conducting the raid, could proceed for conduct of raid without the warrant, but such power could not be allowed to be used in every case in normal circumstances---Excise Inspector could conveniently obtain the search warrant from the Special Court, but he having felt no necessity of such warrant had transgressed the authority of law which had made the search of the house illegal---Prosecution could not convince the Court that in the facts of the case the requirement of search warrant could be dispensed with---Acquittal of accused by High Court, in circumstances, was not against the interest of criminal administration of justice---Leave to appeal was declined to State accordingly.

Tariz Pervez v. State 1995 SCMR 1345 and State v. Muhammad Amin 1999 SCMR 1367 ref.

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

----Ss. 20 & 21---Search---Combined study of Ss. 20 & 21 of the Control of Narcotic Substances Act, 1997, would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an Officer authorized in this behalf can proceed for conduct of raid without the warrant, but this power cannot be allowed to be used in every case in the normal circumstances.

Suleman Habibullah, Addl. A.-G., Sindh with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 24th February, 2003.

2003 S C M R 884

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MANDOOS KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 367 of 2001, heard on 12th June, 2002.

(On appeal from the judgment, dated 23-11-2000 passed by Peshawar High Court. Peshawar in Criminal Appeal No 331 of 1999 and Murder Reference No. 14 of 2000).

(a) Criminal trial---

---Principle---Guilt against an accused must rest surely and firmly on the evidence produced in the case and plain inference of the guilt may irresistibly be drawn from the evidence.

PLD 1970 SC 10 ref.

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

----Ss. 302/34 & 307/34---Appreciation of evidence---Expert opinion--Expert opinion will not outweigh the trustworthy, confidence-inspiring and consistent direct evidence.

Muhammad Hanif v. State PLD 1993 SC 895 and Sarfraz alias Sappi and 2 others v. State 2000 SCMR 1758 ref.

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

---Ss. 307/34---Number of witnesses---Prosecution must produce best Kind of evidence to establish accusation against the accused facing trial, but at the same time it has no obligation to produce a good number of witnesses, because it has an option to produce as many as witnesses which in its consideration are sufficient to bring home guilt to the accused, following the principle of law that to establish accusation, it is not the quantity but quality of the evidence which matters.

Sarfaraz alias Sappi and 2 others v. State 2000 SCMR 1758 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

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

----Ss. 302/34 & 307/34---Burden of proof on accused---Burden of proving the existence of circumstances bringing his case within general oar special Exceptions of the Penal Code or any other law is upon the accused facing the trial, otherwise the Court shall presume absence of such circumstances.

Abdul Haq v. State and another PLD 1996 SC 1 ref.

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

----Ss. 302/34 & 307/34---Appraisal of evidence--Ocular evidence was trustworthy, coherent, consistent and confidence-inspiring---Minor discrepancies cropping up in prosecution evidence without touching its intrinsic value were of no avail to defence---No extenuating circumstance was available on record in favour of accused for reducing his capital punishment who had killed five persons---Principle of expectancy of life was no more applicable in the country ---Abscondence of accused after commission of the crime had also disentitled him to any leniency in the quantum of sentence---Conviction and sentences of accused were upheld in circumstances.

PLD 1970 SC 10; Muhammad Hanif v. State PLD 1993 SC 895: Sarfaraz alias Sappi and 2 others v. State 2000 SCMR 1758: Allah Bakhsh v. Shammi and others PLD 1980 SC 225: Abdul Haq v. State and another PLD 1996 SC 1; Raheem Bakhsh v. Abdul Subhan and others 1999 SCMR 1190; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and Gulzar Ahmed v State PLD 2002 SC 42 ref.

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

----S. 302/34---Sentence---Reduction in capital punishment---Mitigating circumstance---Principle of expectancy of life is not applicable in Pakistan.

Reheem Bakhsh v. Abdul Subhan and others 1999 SCMR 1190 ref.

Sardar Muhammad Siddique Khan. Senior Advocate Supreme Court for Appellant.

Hafiz Aman, Advocate Supreme Court for the State.

Abdul Samad Khan, Advocate Supreme Court with Muhammad Zahoor Qureshi, Advocate-on-Record for the Complainant.

Date of hearing: 12th June, 2002.

2003 S C M R 894

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

ABDULLAH alias DULLAH---Petitioner

Versus

AMJAD ALI SHAH---Respondent

Civil Petition for Leave to Appeal No. 2231-L of 2001, decided on 14th May, 2002.

(On appeal from the judgment, dated 10-4-2001 of the Lahore High Court, Lahore, passed in Regular First Appeal No. 185 of 1993).

Specific Relief Act (I of 1877)---

----Ss. 12 & 39---Constitution of Pakistan (1973), Art. 185(3)---Specific performance of agreement to sell---Cancellation of agreement to sell--­Concurrent findings of fact by the Courts below---Plea of coercion or undue influence--- Document, cancellation of---Plaintiff had proved the execution of agreement to sell and sale receipt through the testimony of marginal witness who also corroborated the testimony of other witnesses---Suit was decreed by Trial Court in favour of the plaintiff and the judgment and decree was maintained by High Court---Contention of the defendant was that the agreement was a result of coercion and under influence---Validity---If coercion or undue influence was effected upon the defendant then -he should immediately have filed a suit for cancellation of agreement---Trial Court after thorough scanning of evidence had decreed the suit and the Nigh Court maintained the same after going into depth of the same---No irregularity or illegality warranting interference in the concurrent findings was found by Supreme Court---Leave to appeal was refused.

Taqi. Ahmad Khan, Advocate Supreme Court, Ch. Muhammad Hasan, Advocate Supreme Court and C.M Lateef, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 14th May, 2002.

2003 S C M R 897

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

Ch. ALI MUHAMMAD and 4 others---Respondents

Criminal Petition No.805-L of 2001, decided on 21st June. 2002.

(On appeal from the judgment, dated 5-12-2001 of the Lahore High Court, Lahore passed in Criminal. Miscellaneous No.2241/M of 2002 in I.C.A. No.433 of 2000).

Penal Code (XLV of 1860)---

----Ss. 466/467---Constitution of Pakistan (1973). Art. 185(3)---More than one application forms for obtaining certified copies of the order of the High Court had been filed on behalf of the respondents and the accused while posted in the Copying Branch had issued the certified copy in question under his signature---Allegation against the accused was that he had issued the copy of the order which contained different dates pertaining to different application moved on behalf of the respondents-­No allegation of committing any forgery or tampering with the judicial record---All the applications were available on record in original therefore, the explanation offered by the accused appeared to be correct which could happen due to his negligence---Superior official of the accused in the Copying Branch was also responsible to check the dates before issue of the copy---Moving of more than one applications for supply of certified copy of the order could not be objectionable, hence mistake committed by the accused would not fall within the ambit of a criminal act---Petition for leave to appeal was consequently converted into appeal and it was directed that the accused would not be proceeded against criminally and if necessary he might be joined in the investigation as a-witness.

Malik M. Azam Rasool, Advocate Supreme Court and Faiz-ur-­Rehman, Advocate-on-Record (absent) for Petitioner.

Ch. Muhammad Akram, Advocate-on-Record for Respondent No. 1.

Date of hearing: 22nd May, 2002.

2003 S C M R 901

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ui-Rehman Ramda_and Faqir Muhammad Khokhar, JJ -

THE STATE---Petitioner

Versus

RAFAQAT HUSSAIN SHAH---Respondent

Criminal Petition No.497-L of 2001, decided on 21st March, 2002. , (On appeal from the judgment, dated 11-4-2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.517 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Petition for leave to appeal against acquittal---Accused had no reason to cause death of the deceased in respect of a matter of divorce between brother of the deceased and his wife---Ocular testimony was not corroborated by medical evidence---Appraisal of evidence by High Court for acquitting the accused did not suffer from any legal infirmity such as misreading or non-reading of any material piece of evidence---Impugned judgment, therefore, did not suffer from any illegality---Leave to appeal was consequently refused to the State.

Muhammad Sharif Butt, Advocate Supreme Court for the State.

Nemo for Respondent.

Date of hearing: 21st March; 2002.

2003 S C M R 903

[Supreme Court of Pakistan]

Present: Rana Bltagivandas and Faqir Muhammad Khokhar, JJ

QASIM ALI and others--- Petitioners

Versus

AKBAR ALI and others---Respondents

Civil Petition No. 734-L of 1999, decided on 17th June, 2002.

(On appeal from the ,judgment, dated 2-3-1999 passed by the Lahore High Court, Lahore, Multan Bench. Multan in Regular First Appeal No. 634 of 1979).

West Pakistan Land Reforms Regulation. 1959 [M.L.R. 64]---

---Paras. 4 & 27---West Pakistan Land Revenue Act (XVII of 1967), S.45---Constitution of Pakistan (1973), Art. 185(3)---Sale of land in contravention of West Pakistan Land Reforms Regulation, 1959 MLR 64)---Rejection of sale mutation-=-Civil Court, jurisdiction of---Powers of Federal Land Commission---Plaintiff assailed the sale on the ground that the same was in contravention of M.L.R. 64, and all the Courts below found the sale void ab-initio---Contention of the defendants was that irrespective of the fact whether the sale transaction was valid and binding qua the parties to the conveyance deed and it was for the Federal Land Commission or the Authorities constituted under M.L.R. 64, to take exception to the validity or otherwise of the sale---Defendants further contended that the jurisdiction of Civil Court was expressly hared thus the Courts below including the High Court suffered from misconception of law by taking cognizance of the issue and deciding the nature of sale transaction---Validity---Courts below had exercised their jurisdiction contrary to the provisions of law---Leave to appeal was granted by Supreme Court to examine the aforesaid question of law. [p. 0041 A

Mst. Raj Bibi v. Additional Chief Commissioner, Punjab, Lahore PLD 1975 Lah. 408: Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667 and Mst. Zohran Khatoon v. Member. Federa! Land Commission 1985 SCMR 312 ref.

Ch. Aamir Rehman, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Sardar Ali Shah Bukhari, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 17th June, 2002.

2003 S C M R 905

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhantmad Ajmal and Muharnrnad.Vaivaz Abbasi, JJ

IRSHAD alias SHADU and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.636-L: Jail Petitions Nos.147 and 153 of 2001, decided on 23rd May, 2002.

(On appeal from the judgment, dated 24;,8-2000 passed in

Criminal Appeals Nos.285/99 220 of 1999 339/99 and 23-J of the Lahore High Court. Lahore).

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

----Ss. 458, 397 & 395---Constitution of Pakistan (1973), Art. 185(3)--- allegedly remained present outside the gate and were empty-handed--.-Accused while guarding the house had put its inmates under restraint---Conviction of accused under S.397, P.P.C. was consequently, altered to S.395, P.P.C. and they were sentenced to 10 years' R.I. with fine, but their conviction and sentence under S.458, P.P.C. were upheld in circumstances---Petition was dismissed with to said alteration accordingly.

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

----Ss. 397, 458 & 337-L(ii)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Constitution of Pakistan (1973). Art. 185(3)---Accused in addition to removing the household articles from the house of the complainant party had also committed Zina-bil-Jabr with the complainant in presence of her brother and husband who could not he believed to have levelled falsely such allegations against the accused at the cost of their honour and dignity---Record did not reveal any grudge or enmity between the prosecution witnesses and the accused---Leave to appeal was refused to accused by Supreme Court in circumstances.

Sheikh Khizar Hayat, Advocate. Supreme Court and Syed Abul Aasim Jaffari. Advocate-on-Record for Petitioner (in Criminal Petition No.636/L of 2001).

Ch. Ghularn Ahmad, Advocate Supreme Court for the State (in Criminal Petition No.636/L of 2001).

Syed Ali Hassan Gillani, Advocate Supreme Court for Petitioners (in Jail Petitions Nos, 147 and 153 of 2001).

Ch. Ghulam Ahmad. Advocate Supreme Court for the State (in Jail Petitions Nos. 147 and 153 of 2001).

Date of hearing: 23rd May. 2002.

2003 SCMR 911

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

GHULAM ABBAS ---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.771-L of 2001, decided on 21st March, 2002

(On appeal from the judgment, dated 8-10-2001 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.3-B of 2001 in Criminal Appeal No-. 1944 of 2000).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S:302=--Constitution of Pakistan 11973), :art. 185(3)---Suspension of sentence---High Court had refused to suspend the sentence of imprisonment for life of accused on the ground that the contentions involved deeper appraisal of evidence which was not permissible under S.426, Cr.P.C.---Discretion had been exercised. by High Court on relevant and valid considerations which needed no interference--- Leave to appeal was refused accordingly.

Ch. Irshad Ullah Chattha, Advocate Supreme Court for Petitioner.

Nasim Sabir, Addl. A.-G. for the State

Date of hearing: 21st March, 2002.

2003 SCMR 912

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mian MUHAMAD RASHID QADRI---Petitioner

versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Petitions for Leave to Appeal No. 2468/L of 2000, decided on 29th April, 2002.

(On appeal from the judgment, dated 10-8-2000 of the Lahore High Court, Lahore, passed in Writ Petition No. 140/R of 2000).

Displaced Persons (Compensation and.Rehabilitation) Act (XXV11I of 1958)---

----Ss. 10 & 11---Constitution of Pakistan (1973), Art. 185(3)--­Allotment of land reserved for "construction of school---Settlement Authorities rejected R.P. Form of the petitioner on the ground that the land in dispute had already been reserved for construction of a primary school---Effect---Petitioner was a trespasser and had no legal basis to claim the disputed property which had already been reserved for a noble and public purpose---High Court had rightly refused to exercise Constitutional jurisdiction as the same could not be invoked to. perpetuate the gain/property secured through illegal means---Leave to appeal was refused.

M.A. Hamid Awan, Advocate Supreme Court with Walayat Umar Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th April, 2002.

2003 S C M R 914

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

KHALID MEHMOOD---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.209 of 2001, decided on 20th March, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 13-8-2001 passed in Criminal Appeal No.98 of 1996, Murder Reference No. 188 of 1996 and Criminal Revision No. 57 of 1986).

Penal Code (XLV of 1860)---

----S. 302(a)---Constitution of Pakistan (1973), Art. 185(3)---Occurrence was admitted by the accused although in a different manner---Nine inches long blood-stained Chhuri recovered from the accused was found to be stained with human blood---Injuries on the person of the deceased did not appear to have been caused by an ordinary knife in view of their size---Eye-witnesses were natural witnesses and their presence on the spot at the relevant time was not even challenged by the defence--­Independent and disinterested ocular testimony was corroborated medical evidence and recovery of the Chhuri---Accused as a result altercation with the deceased after having become revengeful had caused successive injuries on the sensitive part of his body in a highly brutal manner killing him at the spot---Reprimand by the deceased Doctor to the accused for his negligence might be an element of provocation of a smaller degree, but it would not provide any justification to commit murder and plead mitigation for lesser punishment---Conviction and sentence of accused were maintained in circumstances and leave to appeal was refused to him by Supreme Court.

M. Ilyas Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 20th March, 2002.

2003 SCMR 919

(Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad and Tanvir Ahmad Khan. JJ

ZAHEER AHMAD KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Petition 335/L of 2000, decided on 13th November, 2000.

(On appeal from the order dated 5th June, 2000 of the Lahore High Court, Lahore in Criminal Miscellaneous No.3136/B of 2000).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), 5.324---Constitution of Pakistan (1973), Art, 185(3)---Pre-arrest bail---Accused was involved in a family dispute---Delay in lodging the F.I.R. was speaking for itself---Case for grant of pre-arrest bail was made out, in favour of accused--­Petition for leave to appeal was converted into appeal and allowed in circumstances and the accused was admitted to pre-arrest bail accordingly.

Ch. Muhammad Hussain Chhachhar, Advocate Supreme Court and Syed Abul Asim Jafri, Advocate-on-Record for Petitioner.

M. Mazhar Sher Awan, A. A.-G. for the State.

Date of heating: 13th November, 2000.

2003 SCMR 921

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

REHMAT BIBI and others---Petitioners

versus

MEMBER (REVENUE), BOARD OF REVENUE and others---Respondents

Civil Petition No. 491-L of 2002, decided on 7th May, 2002.

(On appeal from the judgment., dated 7-12-2001 passed by the Lahore High Court, Lahore in Writ Petition No. 24994 of 2000).

Constitution of Pakistan (1973)---

----Arts: 185(3) & 189---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 45---Judgment of Supreme Court ---Implementation--­Mutation of inheritance, review of---Dispute between the parties was finally settled by Supreme Court and the respondents were held to be entitled to inherit the suit property---Revenue Authorities made the necessary changes in the Revenue Record---Petitioners assailed the orders of the Revenue Authorities before High Court in Constitutional jurisdiction on the ground that since the mutation had been effected in favour of the predecessor-in-interest of the respondents, the land ,in question had changed different hands and the area and status of land had undergone changes even because of consolidation proceedings---High Court after taking notice of all the developments vis-a-vis the land in question concluded that the petitioners could raise the points before the Revenue Authorities entrusted with the obligation of reviewing the. mutations---High Court had further observed that if the petitioners or any one else was aggrieved of any decision by the Revenue Authorities then the petitioners could have the fora available to them to seek redress of their grievance---View expressed by High Court in exercise of Constitutional jurisdiction was not open to any exception---Leave to appeal was refused.

Muhammad Saleem Sheikh, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 7th May, 2002.

2003 S C M R 923

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmad Khan and Muhammad Nawaz Abbasi, JJ

GHULAM SHABBIR---Petitioner

versus

THE STATE- --Respondent

Jail Petition No.205 of 2001, decided on 8th July, 2002.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 23-11-1998 passed in Criminal Appeal No.71 of 1996 and Murder Reference No. 117 of 1996).

Penal Code (XLV of 1860)---

----Ss. 302 & 324-Constitution of Pakistan (1973), Art. 185(3)--­Circumstances under which the occurrence took place did not suggest the case being. of self-defence or of sudden quarrel---Accused was in possession of a Chhuri of the size of six inches whereas the deceased and the injured witness were empty-handed and were not even aware of the presence of accused at the bus stand---Act of the accused of causing injuries on the sensitive parts of the body of the deceased even if not pre­meditated, still it was a Qatl-i-Amd---Motive for the occurrence given by the prosecution was correct---Occurrence had taken place in broad daylight at the bus stand where the presence of eye-witnesses was unquestionable---Ocular testimony was of unimpeachable character which had been furnished by natural and independent witnesses having no enmity or grudge against the accused---Arrest of the accused at the spot with the weapon of offence and his admission of the occurrence with a different version had confirmed the veracity of the prosecution story--­No mitigating circumstance was available on record in favour of accused for awarding lesser penalty-- Leave to appeal was refused to accused by Supreme Court in circumstances.

Ch. Ghulam Ahmed, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 8th July, 2002.

2003 S C M R 928

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

Messrs SHIFA MEDICOS---Petitioner

versus

WAFAQI MOHTASIB (OMBUDSMAN) and others---Respondents

Civil Petition No. 1825-L of 1999, decided on 25th June, 2002.

(On appeal from the judgment, dated 13-10-1999 of the Lahore High Court, Lahore passed in Writ Petition No. 14892 of 1994).

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art. 32---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Constitutional jurisdiction of High Court---Order passed by Wafaqi Mohtasib---Adequate remedy against such orders---Grievance of the petitioner was that the High Court declined to interfere, in exercise of Constitutional jurisdiction, with the order passed by Wafaqi Mohtasib--­Validity---Adequate .remedy was available to the petitioner under Art. 32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, against the order of Wafaqi Mohtasib---Supreme Court declined to take any exception against the order. passed by High Court whereby discretionary relief was declined---Leave to appeal was refused.

Sh. Ziaullah, Senior Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nemo for- Respondents.

Date of hearing: 25th June, 2002.

2003 S C M R 929

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

ABDUL HALEEM and another---Petitioners

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.632-L of 2001, decided on 2nd July, 2002.

(On appeal from the judgment, dated 22-8-2001 of the Lahore High Court, Lahore in Criminal Revision No.572 of 2000).

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1898), S.302---Constitution of Pakistan (1973), Art. 185(3)---Forfeiture of bond---Petitioners had stood sureties and furnished bonds for release of accused on bail who eras involved in a murder case and now was absconding for the last 3-1/2 years---On failure of the petitioners to secure the availability of the said accused, they were proceeded against and their bonds were forfeited in full and their revision petition had been dismissed by the High Court by means of the impugned judgment---Petitioners were stated to be poor persons who were unable to pay full amount of the bonds---Petition for leave to appeal was converted into appeal in circumstances and partly allowed reducing the amount of surety bond of each petitioner to Rs.75,000.

Ejaz Anwar, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 2nd July, 2002.

2003 SCMR 930

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

ZULQARNAIN KHAN---Petitioner

versus

Miss FARRAH SHUA and others---Respondents

Civil Petition for Leave to Appeal No. 1641-L of 2001, decided on 21st June. 2002.

(On appeal from Order of Lahore High-Court, Lahore, dated 11-4-2001 passed in Writ Petition No. 19161 of 1999).

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

----S. 5---Constitution of Pakistan (1973), Art. 185(3)---Maintenance allowance, award of---Family court fixed a sum of Rs.2,000 per month as maintenance allowance to the minor child and Appellate Court reduced the amount to Rs.1,000 per month---High Court in exercise of Constitutional jurisdiction declined to interfere with the judgment passed by Appellate Court---Validity---No legal or factual infirmity in the view taken by the Appellate Court which was not disturbed by High Court in the matter of award of maintenance allowance in favour of the minor was found---With inflation in the cost of life, amount fixed by the Courts below was neither unreasonable nor excessive---No substantial question of law of general public importance was involved in the petition---Leave to appeal was refused by the Supreme Court.

Ch. Ghulam Hasan Gulshan, Advocate Supreme Court for Petitioner.

Nemo for Respondents

Date of hearing: 21st June, 2002.

2003 S C M R 932

[Supreme Court of Pakistan] , Present: Sh. Riaz Ahmad, H. C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SARFRAZ alias SHUFFA---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.512-L of 2001, decided on 9th May, 2002.

(On appeal from the judgment dated 13-7-2001 passed by the Lahore High Court, Bahawalpur Bench Bahawalpur in Criminal Appeal No. 14 of 1999/BWP and Murder Reference No. 3 of 1999).

Penal Code (XLVof 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Deceased and the accused had no grudge or enmity with each other except the quarrel in question taking place 2/3 days prior to the occurrence which being a petty matter would not provide a strong reason for false implication of accused---Eye-witnesses were entirely independent and their testimony of unimpeachable character was corroborated by medical evidence and motive and in the given facts the exclusion of evidence of recovery from consideration by the Trial Court would not affect the prosecution case against the accused---Leave to appeal was declined to accused by Supreme Court in circumstances.

M.A. Zafar, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record (Absent) for Petitioner.

Ahmad, Advocate Supreme Court-for the State (for A.-G. Pujab).

Date of hearing : 9th May, 2002.

2003 SCMR 936

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalll-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABDUL MAJEED---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others---Respondents

Civil Petition for Leave to Appeal No. 588-L of 2002, decided on 26th April, 2002. .

(On appeal from the judgment, dated 6-12-2001 of the Lahore High Court, Lahore passed in Writ Petition No. 10785 of 2000).

Civil Procedure Code (V of 1908)---

----S. 35-A---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Constitutional jurisdiction of High Court---Awarding of special costs--­Non-compliance of order passed by High Court---Petitioner was burdened by High Court with special costs and he did not comply with the direction for payments of costs---Plea raised by the counsel of the petitioner was that he wanted time as the petitioner had gone for arranging money---Effect---Supreme Court declined to grant the request so as to prolong the uncalled for litigation---Leave to appeal was refused.

S.M. K. Lodhi, Advocate Supreme Court with -Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 26th April, 2002.

2003 S C M R 938

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

TARIQ HUSSAIN SHAH---Petitioner

versus

THE STATE---Respondent

Jail Petition No.20 of 2001, decided on 15th April, 2002.

(On appeal .from the judgment of Peshawar High Court, Abbottabad Bench, Abbottabad passed in Jail Criminal Appeal No.47 of 1999, dated 25-1-2001).

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

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art. 185(3)--­Judicial confession made by accused found to be voluntary did not lose its value for the mere reason that it was retracted--- Eye-witnesses were natural, straightforward and truthful and their evidence of un­impeachable character was fully corroborated by the confessional statement of accused which was sufficient to prove the charge---Finding of guilt of accused arrived at by the two Courts below was not open to any exception---Leave to appeal was refused to accused by Supreme Court accordingly.

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

----Ss. 302(b) & 324---Appreciation of evidence ---Confession--- Confidence-inspiring retracted confession of accused alone is sufficient for conviction.

Sardar Muhammad Ghazi, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 15th April, 2002.

2003 S C M R 944

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

Haji ABDUL HAQ (ABDUL HAYEE) through Legal Heirs and others---Petitioners

versus

PROVINCE OF PUNJAB through Secretary, Agriculture Department, Lahore and others---Respondents

Civil Petition for Leave to Appeal No. 1453-L of 2002, decided on 9th May, 2002.

(On appeal from judgment of Lahore High Court, Lahore, dated 14-3-2002 passed in Writ Petition No. 162 of 1971).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Thal Development Act (XV of 1949), S.23---Land Acquisition Act (I of 1894), S.6---Constitution of Pakistan (1973), Arts. 24 & 185(3)---Compulsory acqusition---Non-providing of alternate land--property rights, protection of---Petitioners' land was acquired by Thai Development Authority and alternate land had to be granted to them in Colony villages in 'the close proximity of their acquired lands--­Allotment of lands to the petitioners by the Commissioner was assailed by the Provincial Government on the ground that there was some claim of defunct Agricultural Development Corporation over the lands so allotted---High Court, in exercise of Constitutional-jurisdiction set aside the order passed by the Commissioner for the reason that sanction of the Provincial Government had not been obtained for the grant of lands to the petitioners---Petitioners contended that valuable proprietary rights of the petitioners secured and guaranteed under Art. 24 of the Constitution could not be abridged and curtailed or terminated to their disadvantage without just and lawful compensation---Petitioners further contended that the Commissioner formed part of the Provincial Government, whose responsibility was to compensate the petitioners to provide lands in lieu of the lands compulsorily acquired---Even if sanction of the Provincial Government was necessary, it could be obtained ex post facto for which petitioners' rights could not be jeopardized---Disputed land was granted to Agriculture Development Corporation for development but it was not used for the purpose for which it was granted---Agricultural Development Corporation was dissolved with effect from 7-2-1972 and its rights and liabilities devolved on the Provincial Government----Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioners.

Sayed Najamul Hassan Kazmi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 9th May, 2002.

2003 S C M R 946

[Supreme Court of Pakistan]

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

AZHAR MAHMOOD---Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 346-L of 1999, decided on 22nd May, 2000

(On appeal from the judgment/order, dated 23'-4-1999 passed by the Lahore High Court, Lahore in Criminal Appeal No. 160 of 1994).

Constitution of Pakistan (1973)---

----Art. 185(3)---Payment of "Diyat" amount---Accused on account of poverty was unable to arrange the amount of "Diyat" for payment as directed by High Court---Accused was consequently allowed to pay Rs.50,000 out of the total amount of "Diyat" of Rs.1,72,000 with the Trial Court on the same day and to deposit the balance amount in three equal instalments within one year by the specified dates, otherwise he would be liable to arrest and detention in jail till such time he would make the full payment of the balance amount of "Diyat"-- Petition for leave to appeal was converted into appeal and allowed in the above terms.

Tariq Shamim, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioner.

Sarfraz Hussain, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record for the State.

2003 S C M R 948

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

YARA and 9 others---Petitioners

versus

MEMBER, FEDERAL LAND COMMISSION and 10 others---Respondents

Civil Petition No. 175-L of 1998; decided on 3rd May; 2002.

(On appeal from the judgment, dated 9-10-1997 passed by the Lahore High Court, Lahore in Writ Petition No. 1763 of 1978).

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Judicial review---Sub-Constitutional legislation---Determination of matter by Authorities under a sub-Constitutional legislation is not immune from the scrutiny of High Court in the exercise of Constitutional jurisdiction.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 18---Constitution of Pakistan (1973), Art. 185(3)---Resumption of land---Right/claim over the surrendered land---Safeguarding right created as a result of valid sale ---Declarant exercised 'the choice of surrender of excess land which had already been transferred to the respondents- -Constitutional petition was filed before the High Court by the respondents on the ground that in view of other available excess land for resumption, the one which had already been alienated to them by way of sale could not be surrendered---High Court directed the declarant to surrender the land other than the one already alienated to the respondents---Validity---Rights of respondents as a result of prior alienation of the property in dispute had already been created which could not be disturbed at the will of the declarant by exercise of choice to surrender the alienated land---Respondents being vendees were within their right to invoke the Constitutional jurisdiction of High Court for a direction for the surrender of the land other than the alienated one to preserve their vested. rights in .the land in dispute---Petitioners being landless tenants could be considered for the grant of land in accordance with law and subject to their eligibility out of the other available excess land surrendered for resumption and disposal---Petitioners could not claim any priority of allotment qua the vested right of the respondents, as the same was necessary for preserving and safeguarding the rights created as a result of transaction of alienation of sale of land which had been found to-be valid as between the private parties---Transaction of gift which was part of disputed land made by the declarant to his mother was held by the Land Reform Authorities to be valid which she further sold to the respondents---Judgment passed by High Court had done substantial justice between the parties and the same did not call for any interference by Supreme Court---Leave to appeal was refused.

Ch. Muhammad Abdus Saleem, Advocate Supreme Court with Mehmudul Islam, Advocate-On-Record (absent) for Petitioners.

Farooq Amjad Mir, Advocate Supreme Court for Respondents Nos. 3 to 5.

Date of hearing: 3rd May, 2002.

2003 SCMR 951

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Abdur Rahman Khan and Sh. Riaz Ahmed, JJ

Mst. GHAFOORAN BIBI---Appellant

versus

ABDUL GHAFOOR and others---Respondents

Criminal Appeal No. 183 of 1994, decided on 19th October, 1999.

(On appeal from the judgment, dated 4-12-1993 of the Lahore High Court; Lahore, passed in Criminal Revision No. 349 of 1.985).

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

----Ss. 420/467/468/471---Constitution of Pakistan (1973), Art. 185(3)--­Appeal against acquittal,-- Leave to appeal was granted to the complainant by the Supreme Court to consider the contention that sufficient evidence was available on the record on the basis of which the Trial Court had convicted the accused and that the High Court had neither discussed the evidence nor had passed a speaking order while maintaining the acquittal of accused by Sessions Court.

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

----Ss. 420/467/468/471---Appreciation of evidence---High Court had neither commented upon the evidence present on record, nor had disclosed any reason for reaching the conclusion arrived at---Impugned judgment upholding the acquittal of accused by Sessions Court was consequently set aside and the case was remanded to High Court for fresh decision after hearing both the parties by means of a speaking judgment with reasons supporting the conclusion.

M. Munir Paracha, Advocate Supreme Court for Appellant.

Shahid Hussain Quadri, Advocate Supreme Court with Ch. Ghulam-Ahmad, Advocate Supreme Court for Respondents.

2003 S C M R 953

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

Haji ABDUL HAMEED KHAN---Petitioner

versus

GHULAM RABBANI---Respondent

Civil Petition for Leave for Appeal No. 737-L of 1999, decided on 6-5-2002.

(On appeal from judgment of Lahore High Court, Bahawalpur Bench, dated 9-3-1999 passed in Regular First Appeal No. 36 of 1994).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art. 185(3)---Specific performance of agreement to sell---Balance consideration amount, non­deposit of---Dismissal of suit---Trial Court fixed a date for deposit of balance consideration amount---Plaintiff failed to deposit the balance amount till the date specified in the judgment passed by Trial Court, resultantly the suit was dismissed---Plea raised by the plaintiff for non­deposit of the balance consideration amount was issuance of interim injunction by High Court on his stay application---Validity---Interim order passed by High Court did not have the effect of exonerating the plaintiff from the deposit of the., sale amount and the order was not intended to prevent the plaintiff from performing his part of the contract which he was' seeking to enforce for the last about two decades--­Paramount consideration should be that the plaintiff seeking equitable remedy of specific performance must be always willing and ready to perform his part of contract---Conduct of the plaintiff reelected that he had been protracting the litigation on one or the other ground and had been successful on untenable grounds---Since the plaintiff did not deposit the sale amount in compliance with the Trial Court Judgment as well as within the extended period as permitted by High Court, presumption would be that the plaintiff was not serious in the prosecution of his remedy---Plaintiff appeared to be unwilling to perform his part of contract---Finding of two Courts below did not suffer from any legal infirmity or error of jurisdiction---Leave to appeal was refused.

M. Shamshir Iqbal Chughtai, Advocate Supreme Court for Petitioner.

Ejaz Ahmed Ansari, Advocate Supreme Court for Respondent.

Date of hearing; 6th May, 2002.

2003 S C M R 956

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD DIN---Petitioner

versus

Mst. SAKINA BIBI and. others---Respondents

Civil Petition for Leave to Appeal No. 1792-L of 1999, decided on 26-6-2002.

(On appeal from the judgment of Lahore High Court, Lahore, passed on 14-9-1999 in Regular First Appeal No. 87 of 1999).

Specific Relief Act (I of 1877)---

----Ss. 27(b) & 42---Constitution of Pakistan (1973), Art. 185(3)---Bona fide purchaser for consideration without notice---Onus to prove--- Plaintiff claimed to be the subsequent purchaser of the suit property for valuable consideration and sought benefit of S.27(b) of Specific Relief Act, 1877:---Trial Court decreed the suit in favour of the plaintiff but Appellate Court allowed the appeal and judgment and decree passed by Trial Court was set aside---High Court in exercise of jurisdiction under S.100, C. P. C maintained the judgment and, decree passed by Appellate Court ---validity---Plaintiff's sale-deed was subsequent in time and he did not make any inquiry prior to the purchase of disputed property whether the same was encumbered in any manner or not---Plaintiff failed to establish on record the bona fide nature of the transaction claimed by him---No illegality was pointed out warranting. interference in the judgment passed by High Court---Leave to appeal was refused.

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

Nemo for Respondents.

Date of hearing: 26th June, 2002.

2003 SCMR 958

[Supreme Court of Pakistan]

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

TARIQ ZIA ---Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 409-L and Criminal Appeal No.294 of 2000, decided on 24th August, 2000.

(On appeal. from the judgment of Lahore High Court, Lahore, dated 29-6-2000 passed in Criminal Miscellaneous No. 3281-B of 2000).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.364/302/ 148/ 149--­Constitution of Pakistan (1973), Art. 185(3)---Bail---Accused had allegedly raised a "Lalkara" on which his co-accused attacked the complainant side ---F.I.R. stated that accused was empty-handed and had not played any active role in the commission of the offence---Trial Court was yet to determine the effect of the aforesaid "Lalkara" after recording evidence---Petition for leave to appeal was converted into appeal in circumstances which was accepted and the accused was allowed bail accordingly.

Rana Muhammad Arif, Advocate, Supreme Court, Ch. Muhammad Anwar Khan, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Ehtesham Qadir Shah, Advocate Supreme Court for the Complainant.

Ch. Nazir Ahmed, Advocate Supreme Court for the State.

Date of hearing: 24th August, 2000,

2003 S C M R 959

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Khalil-ur-Rehman Ramday, JJ

Mst. HAFEEZAN BIBI---Petitioner

Versus

Mst. ASHRAF BIBI and others---Respondents

Civil Petition No. 400•L of 1999, decided on 5th March,. 2002.

(On appeal from the order, dated 8-3-1999 of the Lahore-High Court, Lahorc passed in Civil Revision No. 317 of 1999).

Civil Procedure Code (V of 1908)---

---0. XXI, R.58---Constitution of Pakistan (1973), Art. 185(3)--­Execution of decree-Attachment of property---Receipt of rent, proof of ownership---Petition claimed to be owner of the property attached in execution of decree---No proof was available on the record that the property attached in execution of money decree was owned by the petitioner---No document was tendered in, proof of the claim except receiving of rents---Objection petition filed by the petitioner was dismissed by the Courts below---Validity---Mere receipt of rent of a property did not confer its title on the recipient---Supreme Court declined to interfere with the orders passed by the Courts below---Leave to appeal was refused.

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

Nemo for Respondents.

Date of hearing: 5th March. 2002.

2003 S C M R 961

[Supreme Court of Pakistan]

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

MUHAMMAD AFZAL---Petitioner

Versus

MUHAMMAD AYUB and others---Respondents

Civil Petition No. 1490/L of 2000, decided on 17th January, 2002

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 5-5-2000, passed in Regular First Appeal No. 15 of 1995/BWP).

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

----Ss. 12 & 27(b)---Constitution of Pakistan (1973), Art. 185(3)--­Specific performance of agreement to sell ---Plea of bona fide purchaser for consideration without notice-7-Proof ---Subsequent purchaser resident of same locality---Plaintiff asserted that the owner of suit-land had executed agreement to sell in his favour and subsequent to the agreement the land was sold to the defendants---Trial Court dismissed the suit to the extent of land purchased by the defendants and High Court affirmed the findings of Trial Court---Plea raised by the plaintiff was that the defendants being residents of the same village and vicinity should be deemed to have the knowledge of execution of the agreement of sale in his favour---Validity---No evidence was available on record that the defendants had knowledge of execution of the agreement of sale in his favour- --No entry of sale agreement in favour of the plaintiff was got made in Roznamcha Waqiati (daily register) subsequent purchaser as defendant in the suit for specific performance of agreement to sell if had taken a plea that he had purchased the land bona fide for valuable consideration without notice of the previous agreement of sale, the plaintiff in such a case had to prove by positive cogent evidence that he had the knowledge of the agreement of sale---Without producing any evidence, it could not be presumed that the defendants being residents of same locality or village had the knowledge of the agreement---Findings of fact recorded by the Courts below against the plaintiff did not suffer from misreading or non-reading of any material piece of evidence warranting interference of Supreme Court---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner

S. Almas Haider Kazmi, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Respondents.

Date of hearing: 17th January, 2002

2003 S C M R 964

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

SULTAN---Petitioner

Versus

MUHAMMAD FEROZE---Respondent

Civil Petition for Leave to Appeal No. 1938/L of 1999, decided on 27th June, 2002.

(On appeal from the order, dated 27-9-1999 of the Lahore High Court, Lahore passed in Civil Revision No: 602-D of 1984).

Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Revision, restoration of---Limitation---Filing of restoration application after a period of 4 years---High Court dismissed the application being time­ barred---Validity---No legal infirmity or any misreading was found in the order of High Court warranting interference by Supreme Court---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 27th June, 2002

2003 S C M R 965

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Dr. SALEEM JAVED and others---Appellants

Versus

Mst. FAUZIA NASIM and others---Respondents

Civil Appeal No. 433 of 1997, decided on 5th April, 2002.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 3-3-1996 passed in Civil Revision No. 616 of 1994).

(a) Succession Act (XXXIX of 1925)----

----Ss. 212, 213 & 214---Constitution of, Pakistan (1973), Art. 185(3)--­Contention of the petitioner was that the respondent being a rank outside and not being a legal heir, she could not be legally impleaded as party to the proceedings for grant of Succession Certificate and that she could not claim the amount without establishment of her claim before a competent Court of law---Leave to appeal was granted by Supreme Court to consider, whether in circumstances, the High Court was justified-in interfering with the order passed by the Senior Civil Judge, refusing to implead respondent as a party.

(b) Supreme Court Rues, 1980----

----O. IV, R.15---Proceedings before Supreme Court---Adjournment--­Advocate-on-Record---Duties, function and status---Advocate-on-Record is recognized agent of his client and in absence of senior counsel, he is under duty to assist and address the Court on behalf of his client--­Absence of senior counsel is not a valid ground to postpone the hearing of appeal before Supreme Court:

(c) Succession Act (XXXIX of 1925)---

----Ss. 212, 213 & 214---Succession Certificate, grant of ---Proceedings-­ -Locus standi---Charge on the property of deceased ---Determination--­Respondent claimed to have charge on the property of deceased by way of giving the amount to the deceasedfor beneficial investment and safe custody---Trial Court declined to implead the respondent as party to the proceedings while the High Court in exercise of revisional jurisdiction allowed the revision and the respondent was impleaded as party to the proceedings---Plea raised by the appellants was that the amount given by the respondent to the deceased was not a charge on the property of the deceased hence she could not be impleaded as party to the proceedings under Ss.212, 213 & 214 of Succession Act, 1925---Validity--­ Respondent being not a legal heir of the deceased and also no Court had given any verdict in favour of the respondent's claim as a charge on the property of the deceased, therefore the provisions of Succession Act, 1925, would not .be helpful to the respondent to establish her claim to become a necessary party in the application for the grant of Succession Certificate to the appellants---Claim of the respondent without proper determination by the competent forum would ipso facto not a charge on the property of the deceased, therefore, the respondent neither had a locus standi to be impleaded as necessary party in the proceedings under Successions Act, 1925, nor could contest and oppose the grant of Succession Certificate to the legal heirs of the deceased---Court seized of the matter relating to the issue of Succession Certificate could not adjudicate the claim of the third person against the deceased for the satisfaction of such claim from his property---Respondent being stranger in the proceedings for grant of Succession Certificate to the legal heirs of the deceased would have no locus standi to be impleaded as party and allowed to join the proceedings---Order passed by High Court did not represent the correct legal position and the same was set aside by Supreme Court and the order passed by Trial Court was restored.

(d) Succession Act (XXXIX of 1925)---

----Ss. 212, 213 & 214---Legal heir---Liabilities and entitlement--­Charge. on property of deceased---Determination---Person who is entitled to inherit the property of another person is also responsible for his liabilities but such liabilities must be, recognized as charge on the property in law---Claim which is either admitted by the legal heirs of the deceased person or is recognized in law and is not subject to further determination, would be deemed to be the charge on the property of deceased---Claim which is subject to the property of determination by the appropriate forum, cannot be treated as charge on the property of deceased and his liability.

(e) Succession Act (XXXIX of 1925)-----

----Ss. 212, 213 & 214---Proceedings under Succession Act, 1925--­Object and scope---Such proceedings are limited in nature to the extent of determination of the rights of legal heirs of deceased inter se and the scope of such proceedings cannot be enlarged to the settlement of the disputed claim and determination of liabilities of legal heirs of the deceased through the adjudication by the competent Court.

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

----O. I, R.10---Necessary party---Connotation---If in absence of a person no effective decree or order can be passed in the suit such person is a necessary party and the suit cannot proceed in his absence--­ Requirement of addition of a party in the suit would be essential if in absence of such party the adjudication of the dispute is not possible--­Legal heirs in a civil suit to recover the amount of debt due are necessary party but a stranger in such a suit is neither a necessary nor a proper party---If a dispute in a suit can effectively be adjudicated in absence of a person, such person is not a necessary party to be impleaded in the suit.

Qazi Muhammad Jamil, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 to 3.

Respondents Nos. 4.to 12: Ex parte.

Date of hearing: 5th April, 2002.

2003 S C M R 971

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

AKBAR ALI ---Petitioner

Versus

MUHAMMAD AYUB---Respondent

Civil Petition for Leave to Appeal No. 3972-L of 2001, decided on 7th May, 2002.

(On appeal from the judgment, dated 1-10-2001 of the Lahore High Court, Lahore passed in Regular First Appeal No. 372 of 1995).

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

----Ss. 12 & 42---Constitution of Pakistan (1973), Art. 185(3)--­Agreement to sell, execution of---Balance consideration amount --­Determination---Claim of plaintiff was that total consideration amount agreed between the parties was Rs.10,00,000 out of which a sum of RS.3,00,000 was received by the defendant at the time of execution of the agreement---Agreement was admitted by the defendant and he only admitted the receipt of Rs.1,00,000 at the time of the execution of the agreement---Trial Court decreed the suit and directed the plaintiff to deposit the balance amount of Rs.7,00,000---High Court modified the judgment and decree passed by the Trial Court only to the extent of deposit of balance consideration amount which was determined as Rs.9,00,000---Contention of the defendant was that the plaintiff had fraudulently entered in the deed of agreement a sum of Rs.3,00,000 as earnest money---Validity---When both the things i.e. agreement and receipt of earnest money had been admitted, the agreement was to be brought to its normal legal conclusion---Trial Court concluded that the plaintiff paid Rs.3,00,000 as earnest money while the High Court had determined that only Rs.1,00,000 was paid in such situation Supreme Court declined to interfere with the judgment and decree passed by High Court---Leave to appeal was refused.

M. Hanif Niazi; Advocate Supreme Court and C.M. Latif, Advocate-on-Record for. Petitioner.

Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondent.

Date of hearing: 7th May, 2002.

2003 S C M R 974

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mst. GHAFOORAN BIBI and others---Petitioners

Versus

GHULAM HUSSAIN and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1640/L and 1641/L of 1999, decided on 17th June, 2002.

(On appeal from the judgment; dated 29-4-1999 of the Lahore High Court, Lahore, passed in Civil Revisions Nos. 1694-D and 1698-D of 1998).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 10 & 11---Constitution of Pakistan (1973), Art. 185(3)--­Allotment of roofs of shops---Concurrent findings of fact by the Courts below---Plaintiffs were allotted residential portion of the property in question and shops- weretransferred separately to the defendants—­Plaintiffs were never transferred rights of roofs of the shops allotted to defendants, for use thereof as a part of residential unit---Concurrent findings were recorded against the plaintiff in two rounds of litigation--­Plaintiffs failed to substantiate the claim that the roofs of the shops were part of residential portions transferred to them---Judgments and decrees passed by the Courts below were not interfered with by Supreme Court---Leave to appeal was refused.

S.M. Tayyab, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents

Date of hearing: 17th June, 2002.

2003 SCMR 976

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

ABDUR REHMAN---Petitioner

Versus

SECRETARY COLONIES and others---Respondents

Civil Petition No. 686-L of 1999, decided on 3rd May, 2002.

(On appeal from the judgment, dated 12-5-1999 by the Lahore High Court, Multan Bench in Intra-Court Appeal No. 99 of 1997).

Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 10---Five Years Temporary Cultivation Scheme---Constitution of Pakistan (1973), Art. 185(3)---Proprietary rights, grant of---Cancellation of lease in favour of petitioner---Finality of orders passed by Revenue Authorities----Orders passed by Additional Commissioner as well as by the Board of Revenue setting aside the allotment of the land of the petitioner and confirming the allotment of, the respondent became final qua the parties---Revenue Authorities were justified to include the portion of land in dispute excluding the one already allotted to the respondent, in the schedule for auction---Petitioner who was no longer a lessee of the land could not claim the grant of proprietary rights---No substantial question of law of general public importance was involved in the case---Leave to appeal was refused.

N.A. Butt, Advocate Supreme Court for Petitioner.

Muhammad Hanif Niazi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record (absent) for Respondents.

Date of hearing: 3rd May, 2002.

2003 S C M R 978

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

AJEEB ULLAH---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Petition No. 531-K of 1992, decided on 26th June, 2001

(On appeal from the judgment, dated 8-7-1999 of the High Court of Sindh at Karachi in Constitutional Petition No. 653 of 1999).

Educational institution---

----Admission in medical college---Domicile Certificate and Permanent Residence Certificate, cancellation of--Candidate had obtained the certificates on the basis of forged documents---Commissioner cancelled the certificates and the decision was upheld by the Permanent Residence Appellate Committee---High Court , in exercise of Constitutional jurisdiction declined to interfere with the orders passed by the Authorities---Candidate failed to show that the concurrent findings of the Authorities were perverse and based on non-consideration of relevant evidence or on consideration of extraneous material---Validity---Since no mala fide having been alleged against the member of the Committee contention that the committee could not take a different view would be of no avail---Both the certificates were cancelled only after a month of admission of the candidate in medical college, as such his further studies were at his own risk and costs---When the foundation of the certificates was based on fraud and forgery, the documents could not be said to be true---Supreme Court declined to interfere with the judgment passed by High Court.

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

Nemo for Respondents Nos.1 to 3.

Respondent No.4 in person.

Date of hearing: 26th June, 2000

2003 S C M R 981

[Supreme Court of Pakistan]

Present: Rana Baghwandas and Faqir Muhammad Khokhar, JJ

Haji ALLAH DITTA through Legal heirs and others--- Petitioners

Versus

AHMAD NAWAZ and others---Respondents

Civil Petition No. 2813-L of 2001, decided on 20th Tune, 2002.

(On appeal from the judgment dated 22-6-2001 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.626-D of 1980/BWP).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-Shahadat (10 of 1984), Art. 129(d)---West Pakistan Land Revenue Act (XVII of 1967), S.45---Constitution of Pakistan (1973), Art. 185(3)---Declaration of relationship with deceased--­Mutation of inheritance---Plaintiffs claimed to be the only heirs of their deceased brother who was allegedly issueless---Mutation initially entered in their name was altered and defendants were shown as widow and sons of the deceased---Validity---High Court had taken the correct view that the plaintiffs nowhere averred in their plaint that the widow had been divorced and was subsequently married to another person, nor it was pleaded that the other defendants were not the sons of the deceased--­Plaintiffs also admitted in evidence that the marriage of the deceased was in. exchange of his sister with the brother of the widow-High Court recorded findings of fact after thorough scrutiny of evidence of the parties and formed a correct view---Leave to appeal was refused.

Ismail Ahmed Peepadi v. Momina Bibi and others AIR 1941 PC 11 = 1990 Pakistan Supreme Court Cases (PSC) 837) and Chandu Lal Agarwal and another v. Bibi Khatemonnessa and others AIR 1943 Cal. 76 ref.

Mian Allah Nawaz, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th June, 2002.

2003 S C M R 984

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ABDUL KHALIQ---Petitioner

Versus

NUSRAT BIBI and another---Respondents

Civil Petition for Leave to Appeal No. 1879/L of 2002, decided on 20th June, 2002.

(On appeal from the judgment, dated 12-4-2002 of the Lahore High Court, Lahore passed in Civil Revision No. 11 of 2002).

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

----S. 5---Constitution of Pakistan (1973), Art. 185(3)---Maintenance allowance, recovery of---Objection raised by the husband at the time of execution of decree was that the wife had already been divorced by him and certificate of effectiveness of divorce was produced---All the Courts below dismissed the objection so raised by the husband---Validity---In spite of passage of decree for the maintenance allowance as far back as on 4-5-2000, the husband had not honoured the same and was avoiding payment of the maintenance allowance on one pretext or the other--­Judgment and decree passed by the Family Court was maintained by the Appellate Court---Husband having not assailed the judgment and decree any further, the same had attained finality---No certificate of divorce was produced by the husband during the course of proceedings before the Trial Court that the divorce to wife had already become effective--­Husband was avoiding payment of maintenance allowance on .one pretext or the other and was dragging the wife in an uncalled for litigation--­Supreme Court declined to interfere with the orders passed by the Courts below---Leave to appeal was refused.

Mirza Muhammad Aziz-ur-Rehman, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th June, 2002.

2003 S C M R 986

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ

AZIZ DIN ---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Civil Petition No. 1723-L of 2002, decided on 24th June, 2602.

(On appeal from the judgment, dated 3rd April, 2002 passed by the Lahore High Court, Lahore in Writ Petition No. 3340 of 1983)

Colonization of Government Lands (Punjab) Act (V of 1912)-----

-----S. 10---Ejected Tenants Scheme—Constitution of Pakistan (1973) Art. 185(3)---Proprietary rights, grant of ---Question of being in actual cultivating possession---Respondents migrated from two different villages in India----Both the respondents were separately listed as head of two independent families and were assigned separate serial numbers in the Register of Temporary. Allotments---Matter of entitlement of the respondents had been scrutinized at different levels starting from District Collector up to Board of Revenue and it had never been found that the respondents were not refugees from India or that they Were not independent families or that they were not entitled to allotment of the land---Effect----Respondent had not committed any fraud ill securing allotment of the land and had not made any misrepresentation for the purpose---High Court had rightly set aside the order passed by the Board of Revenue as in the order, the Board had not given any reason for concluding that the respondents were not heads of independent families and were not entitled to separate and independent tenancies in the land in question---Supreme Court declined to take any exception to the judgment passed by High Court---Leave to appeal was refused.

Awan Muhammad Hanif, Advocate Supreme Court with Walayat Umer, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th June, 2002.

2003 S C M R 990

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Haji ABDUL MALIK and 10 others---Appellants

Versus

MUHAMMAD ANWAR KHAN and 26 others---Respondents

Civil Appeal No. 746 of 1995, heard on 2nd April, 2002.

(On appeal from the judgment of Peshawar High Court, Bench Abbottabad, dated 20-7-1994 passed in Civil Revision No. 178 of 1992).

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

----S. 16 & O. VII, R.10---Constitution of Pakistan (1973), Art. 185(3)--­Leave to appeal was granted by Supreme Court to consider, whether or not the Civil Courts was justified in returning the plaint to the plaintiff.

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

----S. 42---Civil Procedure Code (V of 1908), S.16---Declaratory suits--­Territorial jurisdiction of Trial Court---Determination---Principles---Suit relating to the rights and- interest in an immovable property is instituted in a Court within local limits of which the property is situated---Suit for the purposes of determining the rights or interest in the property being different to that of the suit in which the relief claimed does not relate to the rights -in immovable property, can be filed at the place at which the cause of action fully or partially arose---Suit relating to the rights in the immovable property would lie before the Court within tote local limits of which the property is situated and if the property is situated outside the territorial jurisdiction of the Court and the relief being sought in the suit relates to the property, the slut would not be maintainable before any other Court except the one within territorial jurisdiction of which property is situated---Essential factor for determination of jurisdiction for the purposes of entertaining tile suit be judged from the contents of the plaint and the dispute which is subject-matter of the suit and not from the consequences flown from the suit.

(c) Registration Act (XVI of 1908)---

----Ss. 17, 29 & 77--Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.16 & O. VII, R.10---Registration of document, cancellation of---Assailing of such cancellation---Territorial jurisdiction of Civil Court---Determination---Return of plaint for lack of territorial jurisdiction---Registration of agreement was cancelled by Registrar on the ground that the registration was sought through misrepresentation---Document was registered and then cancelled at place `M' and declaration was sought by the plaintiff in the suit at place 'M', that the cancellation of registration was illegal---Trial Court returned the plaint on the ground of lack of territorial jurisdiction and the order of Trial Court was maintained by Appellate Court---High Court in exercise of revisional jurisdiction set aside the orders passed by both the Courts below and 'remanded the suit to Trial Court for decision on merits--­Contention of the defendant was that under the provisions of S.16, Cr.P.C. the suit was maintainable at the place where the property the subject-matter of the document was located---Validity---Relief sought in the plaint did not relate to the tights and interest in the immovable property and was confined only to the limited extent of the exercise of jurisdiction by the Registrar---Place of breach of law would furnish the forum for the suit and such place was where some act was to be performed and thus the suit to set aside the document on the ground that it-was obtained through misrepresentation would be maintainable at the place where the act of misrepresentation was committed and if such document was registered, the suit would be maintainable at the place of its registration ---Suit-which involved dispute relating to the rights in, the immovable property would be maintainable at the place where property was situated and if the relief did not relate to the rights and interest in the property and was confined only to the extent of an ancillary matter, such suit could be filed at the place where the cause of action wholly or partly arose---High Court had rightly decided the maintainability of the suit at place ' M' and no exception could be taken to the legal position explained in the judgment of High Court---Appeal was dismissed by the Supreme Court.

Rajlakshmi Dassi v. Banamali AIR 1950 Cal. 510 ref.

Qazi Muhammad Jamil, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

M. Sardar Khan, Senior Advocate Supreme Court with Anwar H. Mir, Advocate-on-Record (absent) for Respondent No. 1.

Date of hearing: 2nd April, 2002.

2003 S C M R 995

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

HAMIDULLAH KHAN and another---Petitioners

Versus

Ch. MUHAMMAD JAMEEL and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1248/L, and 1614/L, of 2002, heard on 22nd May, 2002.

(On appeal from the orders, dated 5-4-2001 and 6-5-2002 of the Lahore High Court, Lahore, passed in Writ Petitions Nos. 5600 of 2002 and 7448 of 2002 respectively).

Punjab Local Government Elections Rules, 2000---

----R. 70---Constitution of Pakistan (1973), Art. 185(3)---Election petition---Right of cross-examination, closing .of---Parties contested elections for , the seats of Nazim and Naib Nazim---Petitioners were declared returned candidates and the respondents assailed the election by filing election petition on the ground that the petitioners had misstated their assets in the declaration form at, the time of filing of nomination papers--:Counsel of the petitioners could not attend the Court on the date when the case was fixed for evidence, and the Election Tribunal instead of adjourning the case, recorded the examination-in-chief of the witnesses and closed the right of petitioners to cross-examine the witnesses---Election Tribunal also closed the right of petitioners, to adduce their evidence---High Court in exercise of Constitutional jurisdiction did not interfere with the orders passed by the Election Tribunal---Validity---Petitioners were firstly fighting for the right of cross-examination which was denied to them on the very first date of recording evidence of the respondents and having failed over, there, they also in the meantime lost their right of bringing evidence by the Election Tribunal---Cases should be decided on merits and technical knock-out should sparingly be resorted to---Supreme Court in the interest of justice and fairplay granted one opportunity to the petitioners to produce their evidence so as to controvert the stance taken by the respondents qua the declaration of assets---Petition for leave to appeal was converted into appeal, orders passed by the Election Tribunal were set aside and the case was remanded to the Election Tribunal for recording of evidence of the petitioners---Appeal was allowed.

A.G. Tariq Chaudhry, Advocate Supreme Court for Petitioners.

Ch. Attaullah, Advocate Supreme Court for Respondents Nos. 2

Date of hearing: 22nd May, 2002.

2003 S C M R 999

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

FAZAL and others---Petitioners

Versus

GHULAM MUHAMMAD and others---Respondents

Civil Petition No. 1081-L of 1999, heard on 23rd May, 2002.

(On appeal from the judgment/order dated 6-5-1999 passed by Lahore High Court, Lahore in Civil Revision No. 47-D of 1986).

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2--­Constitution of Pakistan (1973), Art. 185(3)---Permanent injunction, grant of---Concurrent findings of fact by the Courts below---Restraining from raising construction over jointly owned land---Defendant started raising construction over the suit-land which was jointly owned by the parties---Trial Court decreed the suit and restrained the defendants from raising construction over the land---Judgment and decree passed by the Trial Court was maintained by Appellate Court as well as High Court--­Plea raised by defendants was that since construction raised by co­ owners on the land did not waste or impair the utility of the land and co ­sharers could also enjoy usufruct, therefore, the construction could not be resisted---Validity---All the Courts below had recorded concurrent findings of fact---Defendants instead of raising construction on the property which was admittedly owned by the plaintiffs, should have first of all got the same partitioned and then might have constructed the portion of land falling in their share---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below--­Leave to appeal was refused.

Afsar Khan and others v. Mst. Khanum Jan and others 1983 SCMR 273 distinguished.

Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd May, 2002,

2003 S C M R 1001

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

Mst. ALLAN BIBI---Petitioner

Versus

MUHAMMAD IQBAL alias BALA ---Respondent

Civil Petition for Leave to Appeal No. 605-L of 2001, decided on 23rd April, 2002.

(On appeal from the judgment, dated 2-11-2000 of the Lahore High Court, Lahore passed in Criminal Appeal No. 165-J of 2000).

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

----Art. 185(3)---Penal Code (XLV of 1860), S.302(b)---Petition for leave to appeal---Delay of 258 days, condonation of---Petition was though barred by 258 days yet in the interest of justice Supreme Court examined .the same on merits as well.

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

----S. 302(b)---Constitution If Pakistan (1973), Art. 185(3)---Re­appraisal of evidence-- -Ocular account in conflict with medical evidence---No recovery of crime empty from the place of occurrence--­Accused was stated to be armed with a .32 pistol and the same was got recovered at his instance after his apprehension---Medical report showed that the deceased had one sharp-edged injury on his person while another injury was inflicted with blunt weapon---Trial Court sentenced the accused for life imprisonment whereas High Court accepted the appeal and acquitted the accused---Validity---Ocular account did not inspire confidence as the same was in conflict with the medical evidence- -Recovery of pistol was of no consequence as no empty was recovered from the place of occurrence---No material evidence connecting the accused with the commission of offence was pointed out and there was no legal infirmity in the judgment passed by High Court warranting interference by Supreme Court---Leave to appeal was refused.

Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd April, 2002.

2003 S C M R 1004

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

GHULAM HUSSAIN ---Petitioner

Versus

MUHAMMAD DIN---Respondent

Civil Petition No. 1020-L of 2002, heard on 24th April, 2002.

(On appeal from the judgment, dated 5-3-2002 passed by the Lahore High Court, Lahore in Civil Revision No. 1262 of 1999).

Specific Relief Act (I of 1877)---

----S. 8---Constitution of Pakistan (1973) ,Art. 185(3)---Suit for recovery of possession of immovable property---Concurrent findings. of fact by the Courts below---Suit property had been originally purchased by the father of plaintiff on whose death the plaintiff and his brother inherited the rights of the deceased---Suit for possession through pre-emption filed against the father of the plaintiff in respect of the suit property had also been dismissed by the Civil Court---Revenue Record produced in evidence showed that originally the father of the plaintiff and then the plaintiff was in lawful possession of the suit property regardless of its nature---Suit was decreed by the Trial Court in favour of the plaintiff and appeal before Appellate Court against the judgment and decree passed by the Trial Court was dismissed---High Court in exercise of revisional jurisdiction affirmed the judgments and decrees 'of .both the Courts below---Validity---Judgment and decree passed by High Court did not call for any interference---Suit of the plaintiff against defendant for possession of the suit property by removal of superstructure constructed thereon unauthorizedly was rightly decreed---No substantial question of law of public importance. was involved in the case---Leave to appeal was refused.

Talib Haider Rizvi, Senior Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Syed Abul Aasim Jafri, Advocate-on-Record for Respondent No. 1.

Date of hearing: 24th. April, 2002.

2003 S C M R 1006

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

GHULAM MUHAMMAD and others---Petitioners

Versus

KHUDA BAKHSH and others---Respondents

Civil Petition for Leave to Appeal No. 328/L of 2002, decided on 7th May, 2002.

(On appeal from the judgment, dated 16-11-2001 of the Lahore High Court, Multan Bench, Multan, passed upon C.M. No. 1664 of 2001 in Civil Revision No. 436-D of 1996).

Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art, 185(3)---Revision petition, dismissed as not pressed---Assumption of compromise between the parties---Proof---High Court on the statement of counsel of petitioners, dismissed revision application as not pressed---Application was filed by the petitioners to recall dismissal order passed by High Court, which application was dismissed---Petitioners contended that the counsel for petitioners in High Court had withdrawn the revision on the assumption that the parties had compromised the matter ---Validity--­Petitioners had not annexed with the present petition any certificate or affidavit from the counsel to substantiate the stance of assumption of compromise---No illegality was pointed out in the order of High Court warranting interference by Supreme Court---Leave to appeal was refused.

Abdul Rashid Sheikh, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th May, 2002.

2003 S C M R 1008

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

GULZAR AHMAD and others---Petitioners

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Petition for Leave to Appeal No. 3905/L of 2001, decided on 22nd May, 2002.

(On appeal from the judgment, dated 7-11-2001 of the Lahore High Court, Lahore passed in Regular Second Appeal No. 26 of 1988).

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

----Art. 185(3)---Petition for leave to appeal to Supreme Court---New plea, raising of---Additional evidence, production of---Documents sought to be produced in evidence by the petitioners never saw the light of the day throughout the litigation spreading over nearly four decades before the Revenue Authorities as well as before the Civil Courts ---Effect--­Supreme Court declined to accede to such prayer at such belated stage.

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

---Ss. 42 & 45---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Mutation of inheritance---Legal heirs of deceased owner---Determination---Concurrent findings of fact by the Courts below---Revenue Authorities dismissed plaintiff's claim of being the legal heirs of deceased owner of suit-land and attested mutation of inheritance in favour of defendants---All the Courts below concurrently decided the matter against the plaintiffs and found them not to be the legal heirs of the deceased owner---Validity---Plaintiffs had failed to substantiate their claim not only before the Revenue Authorities but also before the Civil Courts---Board of Revenue on revision petition filed by the plaintiffs undertook a detailed inquiry so as to determine the correctness/genuineness of the pedigree-table---Both the parties were afforded full opportunity and the plaintiffs failed to substantiate the same---Even before the Civil Court the evidence brought on record from the side of the plaintiffs did not inspire confidence and the testimony of the their witnesses was shaky and hearsay---Plaintiffs failed to connect themselves with the deceased owner of the suit-land---No legal infirmity in the judgment of High Court warranting interference by Supreme Court was pointed out---Leave to appeal was refused.

Maqbool Elahi Malik, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd May, 2002.

2003 S C M R 1011

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ALLAH BAKHSH and others---Petitioners

Versus

BAKHSHA and others---Respondents

Civil Petition No. 740-L of 2002, decided on 23rd April, 2002.

(On appeal from the judgment, dated 7-1-2002 passed by the Lahore High Court, Lahore in Civil Revision No. 427/D of 1991).

Contract Act (IX of 1872)---

----Ss. 238, 201, 182 & 203---Qanun-e-Shahadat (10 of 1984), Arts. 72, 117 & 120---Constitution of Pakistan (1973), Art. 185(3)---Cancellation of general power of attorney and sale deed---Plea of fraud and misrepresentation---Onus to prove---Concurrent findings of fact by the Courts below---Sale on the basis of general power of attorney was assailed by -the plaintiff on ground that the same' was the result of misrepresentation and fraud---All the Courts had recorded concurrent findings of fact that the power of attorney was duly executed by the plaintiff in favour of the defendant---,Validity---Onus of proof of the non­ execution of the general power of attorney and subsequent registered sale-deed was on the plaintiff who failed to discharge the same-No effort was made by the plaintiff to cause the production of the original power of attorney neither did he take any exception in that regard--­Supreme Court declined to take any exception to the findings of fact recorded by all the Courts below---No substantial question of law of public importance being involved so as to warrant any interference by Supreme Court---Leave to appeal was refused.

M. Anwar Sipra, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd April, 2002.

2003 S C M R 1013

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

JAM BALLI alias WALI through Legal Heirs and others---Petitioners

Versus

MEHAR KHAN through Legal Heirs and others---Respondents

Civil Petition for Leave to Appeal No. 1406-L of 1999, decided on 20th June, 2002.

(On appeal from judgment of the Lahore High Court, dated 23-6-1999 passed in Civil Revision No: 381-D of 1983).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973) Art. 185(3)---Tenant claiming title on the basis of adverse possession---Concurrent findings of fact by the Courts below---Plaintiffs had been recorded as Ghair Dakheelkar in Jamabandi Register (Revenue Record) since 1937-38 which reflected that they were tenants-at-will---Revenue Authorities as well as all the Courts below declined-to declare the plaintiffs as owners on the basis of adverse possession---Validity---Plaintiffs were legally not entitled to a decree with regard to their title on the basis of adverse possession---Concurrent findings of fact by three Courts below including High Court did not suffer from any legal or factual infirmity or jurisdictional error---Leave to appeal was-refused.

Ch. Ali Muhammad, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th June, 2002.

2003 S C M R 1014

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ

Mst. BAKHTAWAR BEGUM---Petitioner

Versus

AHAD ZAFAR and 12 others---Respondents

Civil Petition for Leave to Appeal No. 1051-L of 1999, decided on 29th May, 2002.

(On appeal from the judgment, dated 18-6-1999 passed by Lahore High Court, Lahore in F.A.O. No. 70 of 1995).

Civil Procedure Code (V of 1908)---

----O. XXI, R.100---Constitution of Pakistan (1973), Art. 185(3)--­Execution petition---Objection petition---Dispossession from immovable property---Failure to prove possession over the suit property---During execution of judgment and decree passed in pre-emption suit, the petitioner filed objection petition under O.XXI, 8.100, C.P.C.--­Executing Court dismissed the objection petition and the dismissal order was maintained by High Court---Validity---Petitioner failed to point out any averment in her objection petition alleging that she was in possession of the suit-land and had been dispossessed as a result of execution proceedings---Possession of the objector was sine qua non for invoking the provisions of O.XXI, 8.100, C.P.C.---Supreme Court declined to interfere with the orders passed by the Courts below---Leave to appeal was refused.

Ahmed Khan's case PLD 1975 SC 311 ref.

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

Nemo for Respondents.

Date of hearing: 29th May, 2002.

2003 S C M R 1017

[Supreme Court of Pakistan]

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

MUHAMMAD RIAZ --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.335 of 2000, decided on 14th February, 2001.

(On appeal from the judgment dated 21-2-1999 of the Lahore High Court, Lahore passed in Criminal Appeal No.965 of 1996). .

(a) Control of Narcotic Substances Ordinance (XCIV of 1996)---

---S.9---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused to consider whether any benefit of the change of law made during the pendency of appeal before the High Court prescribing lesser punishment could be given to him and whether compliance of the provisions of S.103, Cr.P.C. was necessary in the case.

(b) Control of Narcotic Substances Ordinance (XCIV of 1996)---

----S.9---Appreciation of evidence---Accused in a criminal case could be awarded punishment as prescribed under the law in force when the offence was committed, for repeal of such law would not affect the legal proceedings already commenced under the repealed law which would be decided and punishment awarded as prescribed under the said law--­Recovery in the case was not made from any building or vehicle but from the person of the accused---Record did not even indirectly suggest that the huge quantity of heroin weighing one K.G. was falsely planted on the accused or that the police officials had falsely involved him in the case---Non-joining of the persons from the locality in the recovery proceedings, therefore, had not in any manner adversely affected the prosecution case against the accused- --Findings of the Courts below', were not based on any illegality---Appeal was dismissed accordingly.

Muhammad Arshad v. The State 1999 P.Cr.R. 438; Hafiz Muhammad Abdullah v. Imdad Ali Shah and another ,1972 SCMR 173; The Province of East Pakistan v. Muhammad Hossain Mia PLD 1§65 SC 1 and Mushtaq Ahmad v. The State PLD 1996 SC 574 ref.

Ch. Ali Muhammad, Advocate Supreme Court for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for the state.

Date of hearing; 14th February, 2001.

2003 S C M R 1020

[Supreme Court of Pakistan]

Present. Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Housing and Works, Islamabad and another---Petitioners

Versus

A.R.P. MEMON, D.G. PETROLEUM AND ENERGY RESOURCES, ISLAMABAD---Respondent

Civil Petition No.2116 of 2001, decided on 19th April 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 23-5-2001 passed in W.P. 1743 of 2000).

Pakistan Allocation Rules, 1961---

-----Rr. 10 & 16(2)---Facility provided to Federal Government Servant of self-hiring of house owned by his/her spouse or any other family member---Scope---Such facility can be availed by civil servant while in service, but not after his retirement---Civil servant on retirement can retain such accommodation in his possession for a period not exceeding six months on payment of normal rent---Order of self-hiring passed in favour of civil servant at die time, when he was in service, cannot be given effect after his retirement.

Sardar Muhammad Aslam, Deputy Attorney-General for Pakistan and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 8th April, 2002.

2003 S C M R 1023

[Supreme Court of Pakistan]

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

GOVERNOR, STATE BANK OF PAKISTAN and others---Petitioners

Versus

SHAMSUL ISLAM and others---Respondents

Civil Petitions No.2844 to 3008 of 2001, decided on 30th October, 2001.

(On appeal from judgment dated 28-7-2001 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.277(R) to 300(R), 1670(K), 301(R) to 310(R), 347(R) to 350(R), 377(R) to 483(R), 1068(R) to 1076(R), 1198(K), 1199(K), 1201(K) to 1265(K), 1340(K) to 1367(K), 1401(K), 1652(K) to 1669(K) and 1200(K) of 1998).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Question of fact--­Factual controversy set -at rest by Service Tribunal in post remand proceedings after conducting requisite inquiry---Such question could not be re-opened/re-agitated before Supreme Court.

Khawaja Saeeduz Zafar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 30th October, 2001.

2003 S C M R 1026

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

ADDITIONAL COLLECTOR-II SALES TAX, LAHORE---Petitioner

Versus

Messrs ABDULLAH SUGAR MILLS LTD. and others---Respondents

Civil Petition for Leave to Appeal No. 1840-L of 2002, decided on 24th June, 2002.

(On appeal from the order dated 8-4-2002 of the Lahore High Court, Lahore, passed in C.A. No.25 of 2002).

(a) Sales Tax Act (VII of 1990)---

----Ss. 47 & 46(4)---Constitution of Pakistan (1973), Arts.183(3) & 199(4-A)---Appeal---High Court through interim order suspended operation of impugned order---Validity---Tribunal under S.46(4) of Sales Tax Act, 1990 was authorised to pass any order after giving opportunity of hearing to parties---Interim order qua recovery of tax passed by Tribunal would cease to have effect after expiry of period of six months---High Court was not debarred from issuing interim order under S.47 of the Sales Tax Act, 1990---Appellate jurisdiction of High Court on question of recovery was tagged with S.46 of the said Act---Tribunal had power to pass interim order---Not apt to hold that Legislature had authorised Tribunal to grant interim relief, but same was not available with High Court as appellate forum---High Court had directed fixation of appeal after three weeks--- Impugned order was an interim arrangement---Supreme Court dismissed petition and refused leave.

(b) Jurisdiction---

---- Ouster of jurisdiction is always through express words, and can never be implied.

(c) Practice and procedure---

---Whatever is not prohibited, is permitted unless same specifically violates any law or rules.

(d) Jurisdiction---

----Where a Court is competent to allow final relief, it has also got jurisdiction to allow interim relief.

A. Karim Malik, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Shahid Karim, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 24th June, 2002.

2003 S C M R 1028

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhat, JJ

AMJAD ALI, ASSISTANT SUB-INSPECTOR (RETD.)---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, MULTAN and others---Respondents

Civil Petition No.409-L of 1999, decided on 8th May, 2002.

(On appeal from the order dated 3-2-1999 passed by the Lahore High Court, Lahore in Appeal No. 1810 of 1997).

Punjab Police (Efficiency and Discipline) Rules, 1975-----

----Rr. 4, 5 & 6---Constitution of Pakistan (1973), Art. 212(3)--­Compulsory retirement from service---Bailiff of High Court recovered detenu from illegal confinement of civil servant (Assistant Sub ­Inspector)---Liability of civil servant was proved to satisfaction of High Court, which directed him to pay certain sum as compensation---Civil servant in departmental proceedings could not controvert such accusation, thus, had rightly been found guilty imposing such penalty--­No legal infirmity was found in impugned judgment or disciplinary proceedings---No miscarriage of justice had been caused---No substantial question of law of general public importance was involved in petition--­Supreme Court dismissed petition.

Tassawar Husasin Qureshi, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Ms. Roshan Ara, Assistant Advocate-General for the State.

Date of hearing: 8th May, 2002.

2003 S C M R 1030

[Supreme Court of Pakistan]

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

Khawaja ABDUL HAMEED NASIR and others---Appellants

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

Civil Appeal No. 1932 of 2000, decided on 5th March, 2003.

(On appeal from the judgment dated 31-7-1998 of the Lahore High Court passed in I.C.A. No. 197 of 1982).

National Bank of Pakistan Employees Provident, Pension and Gratuity Fund Rules-----

---- Circular No. 77(9)-IFXI/77 paras. 1, 2 & 9---Matter of provident fund of employees of National Bank of Pakistan---Object and effect of Circular No. 77(9)-IFXI/77, paras.1, 2 & 9 on existing Schemes of pension, contributory fund and gratuity in respect of the employees of National Bank of Pakistan---Employees of National Bank of Pakistan were entitled to receive whole of the amount accumulated in their account o; provident fund (total amount of contribution made by them and the Bank alongwith interest up to the date of payment)---All those employees of National Bank of Pakistan covered by the said circular were entitled to receive whole of the amount available in the provident fund account as on 30-11-1977 contributed by them and the Bank---Act of withholding the payment of that part of the amount available in the said account which was contributed by the Bank was illegal and without lawful authority and could not be sustained---Principles.

It is clear from a bare reading of the circular as a whole that the intention behind issuing the same was to provide better social security to the employees of the financial institutions and it was made clear in the later part of paragraph 1 that so fat as the employees of the National Bank were concerned, the existing schemes of pension, contributory fund and gratuity shall be discontinued. It is, therefore, clear from this part of the said paragraph that the existing schemes of pension, contributory fund and gratuity in respect of the employees of National Bank were discontinued by their own operation, as such, it was not dependent upon the exercise of option by them in their favour. The argument that such employees as a matter of fact were left with no choice but to accept that from 30-11-1977, their previous scheme as to gratuity had become inoperative and they were automatically governed by the said scheme embodied in the circular, has force as a consequence of which they could not be deprived of the right to receive the amount available in their provident fund account as on 30-11-1977 alongwith interest up to the date of payment whether it was contributed by them or the bank.

This being the position, the employees of the National Bank were entitled to receive whole of the amount accumulated in their account of provident fund (total amount of contribution made by them and the bank alongwith interest up to the date of payment), therefore, the act of withholding the payment of that I-art of the amount available in the said account which was contributed b, the bank was illegal and without lawful authority and could not be sustained.

Paragraph 2 of the circular is not independent but it is to be read in conjunction with the entire policy decision embodied in the said circular and in particular-paragraph 9 thereof. In paragraph 9, it has been clearly stated that option was to be given by those employees whose service was not pensionable to convert the same as pensionable in lieu of giving up of their right to receive that part of the provident fund contributed by the financial institutions as such, paragraph 2 was applicable only to such employees.

In the concluding portion of paragraph 1, it was by operation of the new scheme itself that previous scheme of pension and provident fund, etc., was made inoperative qua the employees of National Bank on the assumption that the said decision as to exercise of option and surrender of amount of provident fund was not applicable to them as their service was already pensionable.

Such instruments (Circulars) are to be constructed keeping in view the real intention behind them for taking such decision which should be explored by scrutiny of the attending circumstances and in particular the instrument as a whole. It is clear from the circular that the decision was taken to provide better social security to the employees of the financial institutions and in the case of employees of National Bank of Pakistan whose service was already pensionable, they were given benefit to the same as per its own force. There is no possibility of even entertaining any doubt as to its applicability to them qua the entertaining to receive the entire amount accumulated in their provident fund account on 30-11-1977 at the time of closure of the said amount whether contributed by them or the bank with interest up to the date of payment to which no legal exception can be taken.

Benefit was extended to all the persons falling in the same category, therefore, in order to do complete justice, all those employees of the National Bank of Pakistan covered by the circular are entitled to receive whole of the amount available in the provident fund account as on 30-11-1977 contributed by them and the bank.

Hameed Akhtar Niazi v. The Secretary, Establishment Division Government of Pakistan and others 1996 SCMR 1185 ref.

Rana Muhammad Sarwar, Advocate Supreme Court for Appellants.

Javed Altaf, Advocate Supreme Court and Sardar Muhammad Aslam, D.A.-G. for Respondents.

Date of hearing: 5th March, 2003.

2003 S C M R 1037

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MANAGING DIRECTOR, PAKISTAN RAILWAYS, CARRIAGE FACTORY, ISLAMABAD---Petitioner

MUHAMMAD ASGHAR --- Respondent

Civil Petition No.3403 of 2001, decided on 21st March, 2003.

(On appeal from the judgment dated 10-10-2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.724(R)/C.S. of 2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Prime Minister's Secretariat UO NO.15(P) PMDIR/ 931/97, dated 11-3-1997--Pensionary emoluments, calculation of--­Increment in the monthly salary announced by the Prime Minister of Pakistan in his address to the Nation---Prime Minister Secretariat's letter issued in response to the Prime Minister's address to the Nation regarding financial relief to the low paid employees on the face of it did not speak of ad hoc or temporary relief rather mentioned that the financial relief was allowed to all the employees from BS-1 to BS-16 with effect from 1-3-1997---Increment being permanent increase in the pay scale would be reckonable towards the pensionary emoluments--­Department while refusing the relief to the civil servant had not only discriminated but had shown double standard, as such, while maintaining the finding of the Service Tribunal, Supreme Court upheld the reckoning of the increased amount in the basic pay towards calculating the pensionary emoluments and refund leave to appeal.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Petitioner.

Respondent in person.

Naheeda Mehboob Elahi, Advocate Supreme Court and Ali Sher, S.O., Ministry of Finance (on Court's Notice).

Date of hearing: 21st March, 2003.

2003 S C M R 1040

[Supreme Court of Pakistan]

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

BATALA GHEE MILLS (PVT.) LTD. ---Petitioners

Versus

COLLECTOR OF CUSTOMS and 2 others ---Respondents

Civil Petition No.639-K of 2002, decided on 26th February, 2003.

(On appeal from the judgment of High Court of Sindh, dated 5-6-2002 passed in C. P. No. 414 of 2002).

Customs Act (IV of 1969)---

----S. 156(1)---Notification S.R.O. No. 324(I)/99 dated 8-7-1999--­Constitution of Pakistan (1973), Art. 185(3)---Import of palm oil found to be inedible---Record showed that controversial question of fact relating to the nature of oil, edible or inedible, was resolved by the High Court, in view of the test reports; wherein the imported oil was declared not fit for human consumption without further process and consequently, its classification as edible oil was unexceptional---Laboratories reports showed that the subject oil in the form in which the same was imported was not eatable, therefore, the same would not fall in the definition of edible oil for availing the benefit of the notification under which concession in the payment of income-tax was allowed on the import of edible oil---Supreme Court, in the light of material available on the record, having not been able to find out any legal defect and infirmity in the impugned judgment for interference, without taking any exception, upheld the verdict given by the High Court and dismissed the petition for leave to appeal.

M. Shaiq Usmani, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Petitioners.

Raja M. Irshad, Deputy Attorney-General for Pakistan and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 26th February, 2003.

2003 S C M R 1045

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

NOOR ELAHI and others---Petitioners

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Civil Petition No. 124 of 2003, decided 6th February, 2003.

(On appeal from the judgment of Lahore High Court, Lahore, Rawalpindi Bench dated 19-11-2001 passed in W. P. No. 1147 of 2001).

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition-Maintainability---Matter relating to title and possession of land had been finally settled by Supreme Court judgment---Petitioners, through Constitutional petition, sought the demarcation of the land with the intervention of the High Court, to avoid any threat to their title and possession without raising any objection to the settlement---Petitioners conceded that matter relating to the demarcation of land was never in issue before the High Court or Board of Revenue at any stage and the Constitutional petition was filed for the reason that Revenue Authorities would not be prepared to accept petitioners demand of demarcation of land without the intervention of Court---Validity---High Court, in circumstances, could not proceed in the matter in conflict to the judgment of Supreme Court and permit re­opening of the past and closed transactions---Interference of the High Court in the matter would amount to allowing use of remedy of Constitutional petition as a mischief against the State Functionaries to compel them- to act and proceed against the mandate of law.

Ibad ur Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Nasir Saeed Shaikh, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 6th February, 2003.

2003 S C M R 1050

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

Mst. NASIRA KHATOON and another---Appellants

Versus

Mst. AISHA BAI and 12 others---Respondents

Civil Appeals Nos. 1790 and 1791 of 1997, decided. on 16th January, 2003.

(On appeal from the judgment of High Court of Sindh dated 28-2-1995 passed in L. P. A. 20 of 1965 (C. M. A. No.619 of 1982).

(a) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)---

----Ss. 16 & 20---Civil Procedure Code (V of 1908), S.12(2)--­Constitution of Pakistan (1973), Art. 185(3)---Contentions were that property in question having been declared evacuee and transferred to the petitioners, they could not be deprived of the same by virtue of the exchange agreement on the basis of which the suit was decreed that the petitioners were neither made parties in the suit or in the Letters Patent Appeal nor any notice was issued to them regarding the same nor they had any knowledge of the said suit or the appeal, and as such the decree passed by the High Court in Letters Patent Appeal could not operate against their interest in the property transferred to them by the Settlement Department and that in their applications under S.12(2), C.P.C. they had raised several grounds but the High Court dismissed their applications without considering the same---Leave to appeal was granted by the Supreme Court to consider as to whether the applications under S.12(2), C.P.C. by the petitioner before the High Court were rightly dismissed by the Court.

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

----S.12(2)---Remedy available under S.12(2), C.P.C.---Scope---Such remedy would not be available like a regular suit and the Court may dispose of an application under S.12(2), C.P.C. without framing issues, recording evidence of the parties and following the procedure for trial of the suit.

The remedy of civil suit available for setting aside the judgment and decree obtained by fraud and misrepresentation prior to the enactment of subsection (2) of section 12, C.P.C. was taken away by this subsection but this remedy would not be available like a regular suit and the Court may dispose of an application under section 12(2), C.P.C. without framing issues, recording evidence of the parties and following the procedure for trial of the suit.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Filing of application under S.12(2), C.P,C.---Limitation---Remedy of civil suit for setting aside the decree obtained through fraud or misrepresentation or if gassed without jurisdiction under S. 12(2), C.P.C. would not be given retrospective effect except in the cases which were pending adjudication on the enactment of S. 12(2), C.P.C. or in which the decrees already passed were under challenge in the civil suit on the ground of fraud or in which the decree was passed within three years prior to the date of enactment of S. 12(2), C.P.C.---Period of limitation for an application under S.12(2), C.P.C. was not specifically provided under law, therefore the same was governed by residuary Art. 181, Limitation Act, 1908--­Mere lack of knowledge would not be a valid reason for not invoking the jurisdiction of the Court under S. 12(2), C.P.C. for setting aside the decree which was passed 10 years prior to the enactment of S.12(2), C.P.C.---Principles.

The sole ground taken in support of fraud was that the appellants were bona fide transferees of the property and the respondents obtained the decree from the High Court in Letters Patent Appeal through concealment of material facts and without impleading them as parties in appeal, the decree was void. The appellants by taking plea of fraud, invoked the provisions of section 12(2), C.P.C. for setting aside the decree passed about ten years prior to the enactment of said subsection without showing any valid reason for not challenging the decree through the statutory remedies available to them under the law. The decree in the civil suit if was obtained through fraud and misrepresentation or was passed without jurisdiction could certainly be set aside under section 12(2), C.P.C. but in the present case, the suit for specific performance of the exchange agreement was filed by the predecessors-in-­interest in 1960 in the High Court of Sindh at Karachi on the original side which was dismissed by the trial Court on 7-12-1964 and was ultimately decreed by a Division Bench of the High Court in appeal vide judgment dated 16th September, 1970. Subsection (2) of section 12, C.P.C. was enacted by virtue of Ordinance X of 1980 promulgated on 26-3-1980 and prior to the enactment of this subsection, the appellants could conveniently avail the remedies of moving an application for setting aside the decree and for re-hearing' the appeal after becoming party in the appeal or could seek review of the judgment on the same ground under section 114 read with Order XLVIL rule 1, C.P.C., or could file an appeal before the Supreme Court under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973. In addition to the above remedies they could also bring a civil suit for setting aside the decree on the ground of fraud but the appellants did not avail any such remedy and much after the enactment of subsection (2) of section 12, C.P.C. sought setting aside of the decree under section 12(2), C.P.C. on the ground of fraud taking the plea that they were ignorant of the decree before December, 1978. The mere lack of knowledge would not be a valid reason for abandoning the legal remedies available to the appellants and for invoking the jurisdiction of the Court under section 12(2), C.P.C. for setting aside the decree which was passed about 10 years prior to the enactment of this subsection. The statutes relating to the remedies and jurisdiction of the Courts, Tribunals and Authorities are considered procedural in character and subject to the rights of parties may take retrospective effect but if retrospectively of a stature affects the substantive rights and causes injustice in such rights, the Courts by taking exception to the general rule of interpretation of statutes that the procedural law regulating the remedy and jurisdiction of the Courts and the authorities operates retrospectively, may not accept its retrospectively. The remedy of civil suit for setting aside the decree obtained through fraud or misrepresentation or if passed without jurisdiction was substituted with the provision of subsection (2) of section 12, C.P.C. but it would not be given retrospective effect except in the cases which were pending adjudication on its enactment or in which the decrees already passed were under challenge in the civil suits on the ground of fraud or in which the decrees were passed within three years prior to the date of its enactment. The period of limitation for an application under section 12(2), C.P.C. was not specifically provided under law, therefore, the same was governed by residuary Article 181 of the Limitation Act, 1908 under which such an application can be filed within three years from the date when the right to apply accrues and such date would be the date of passing the judgment, decree or order as the case may be. The appellants in the present case by Moving the applications under section 12(2), C.P.C. sought setting aside of the decree passed in 1970 with the assertion that they were not aware of the pendency of suit and appeal involving the dispute of the property between the respondents (decree holders) and the judgment-debtors and passing of the decree by the High Court before December, 1978 but in absence of any reasonable explanation of delay, the provisions of section 12(2), C.P.C. would only be invocable in the cases in which the decrees were passed within three years beyond the date of commencement of the period of limitation.

However the High Court in the present case while keeping in allegation of fraud and misrepresentation recorded the evidence of parties through a local commission and on conclusion of the proceedings found that all the grounds taken for setting aside the decree had already been dealt with in detail by the Division Bench which disposed of Letters Patent Appeal and that no element of fraud and misrepresentation was traceable on record to attract the provisions of section 12(2), C.P.C.

(d) Interpretation of statutes----

----Statute relating to remedies and jurisdiction of the Courts, Tribunals and Authorities ---Retrospectively---Principles.

The statutes relating to the remedies and jurisdiction of the Courts, Tribunals and Authorities are considered procedural in character and subject to the rights of-parties may take retrospective effect but if retrospectively of a statute affects the substantive rights and causes injustice 'to such rights, the Courts by taking exception to, the general rule of interpretation of statutes that the procedural law regulating the remedy and jurisdiction of the Courts and the Authorities operates retrospectively, may not accept its retrospectively.

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

----S. 12(2)---Fraud---Concealment of material facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would be on the party which alleges fraud except in a case in which-the fraud is floating on the face of record---Without bringing the essential facts on the record and the evidence in proof of the fraud the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings---Principles---Appellants in the present case due to negligence, failed to avail the statutory remedies and subsequently on the enactment of S.12(2), C.P.C. taking plea of fraud, made an attempt to re-open the past and closed transaction---Provisions of S.12(2), C.P.C., in circumstances, would not be attracted and the dismissal of application by the High Court was unexceptionable.

The concealment of material facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would lie on the party which alleges fraud except in a case in which the fraud is floating on the face of record. The active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be more heavier in the cases in which a long period has passed since passing of the decree or judgment under which- valuable rights have accrued in favour of the opposite-party. There can be no exception to the rule of law that without bringing the essential facts on the record and the evidence in proof of the fraud the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings. The fraud undoubtedly vitiates solemn proceedings and time would not sanctify an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of the allegation of fraud. The appellants in the present case having taken plea of fraud were under heavy burden to substantiate the allegation of fraud through clear and convincing evidence but they have not been able to discharge their onus to the satisfaction of law. The evidence recorded in the civil suit and the evidence brought on record in the proceedings under section 12(2), C.P.C. would not suggest any concealment or suppression of material facts by the respondents and thus in the given circumstances, no element of fraud being inferable no such presumption could be raised merely for the reason that pending disposal of appeal by the High Court, the property was transferred to the two appellants and the decree was passed in appeal in their absence. One appellant would stand entirely on different footing as he having obtained transfer order much after the disposal of appeal could not challenge the decree on any ground. The examination of the facts in the background in details would show that appellants due to their negligence, failed to avail the statutory remedies and subsequently, on the enactment of section 12(2), C.P.C. taking plea of fraud, made an attempt to re-open the past and closed transaction. The provisions of section 12(2), C.P.C. would not be attracted in the present case and the dismissal of the applications by the High Court was unexceptionable.

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

----S. 12(2)---Scope and application of S. 12(2), C.P.C.---Scope of S.12(2), C.P.C. can neither be extended beyond the grounds of fraud, misrepesentation and the defect of jurisdiction enumerated therein.

Imran Ahmed, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record (absent) for Appellants.

Akhtar Ali Mahmud, Advocate Supreme Court and S.M. Abbas, Advocate-on-Record (absent) for Respondents Nos. 1 to 8.

Respondents Nos.9 to 13: Ex parte.

Date of hearing: 16th January, 2003.

2003 S C M R 1063

[Supreme Court of Pakistan]

Present: Kazim Hussain Siddiqui, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramady, JJ

Haji ABDULLAH JAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.5 of 1996, decided on 28th December, 2002

(On appeal from the judgment dated 17-10-1995 passed by the High Court of Balochistan, Quetta in Criminal Acquittal Appeal No, 16 of 1995).

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.420/467/468/471/482/ 483/109---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider whether a right of appeal which was conferred on aggrieved person on 11-11-1994 would be available against an accused person who had secured his acquittal on 31-10-1994 i.e., well before the said right of appeal had been incorporated in S.417 of the Criminal Procedure Code.

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

----S. 417---Central Law Officers Ordinance (VII of 1970), S.4A --- Penal Code (XLV of 1860), S.420/467/468/471/482/483/109---Appeal against acquittal---Competency---No right accrued to the Federal Government under S.417, Cr.P.C. to file an appeal and consequently no authority was available with the Deputy Attorney-General to file an appeal under the said provisions of law---Appeal against acquittal of accused had been filed in the High Court by the State through a Deputy Director of F.I.A. therefore, the submission of the Deputy Attorney-General that this was an appeal filed by the Deputy Director in his capacity as a person aggrieved of the acquittal was factually incorrect---No authority vested in the Deputy Director of F.I.A. to file the appeal in question on behalf of the State---Said appeal, therefore, was neither competent in view of S.4A of the Central Law Officers Ordinance, 1970, nor was the same maintainable under subsection (2-A) of S.417, Cr.P.C.---Impugned judgment of High Court, rejecting the preliminary objection of accused regarding the competency of the acquittal appeal, was set aside accordingly.

Sheikh Zia Ullah, Advocate Supreme Court for Appellants.

Sardar M. Aslam D.A.-G. with Mehr Khan Malik, Advocate-on Record for the State.

Date of hearing: 28th October, 2002.

2003 SCMR 1067

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

RIAZ AHMAD---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.33 of 2003 in Jail Petition No. 197 of 2001, decided on 6th March, 2003.

Penal Code (XLV of 1860)---

----Ss. 309, 310 & 302(b)---Criminal Procedure Code (V of 1898), 5.345(5)---Partial compromise ---Effect-Accused had been awarded sentence of death as Tazir under S.302(b), P.P.C. and not as Qasis under S.302(a), P.P.C. and as Such legal heirs of the deceased could not waive or accept "Badle Sulh", but could compound the offence with permission of the Court---Accused had been convicted under Tazir and his conviction had been upheld by the Appellate Court which was under challenge---Some of the legal heirs of the deceased only had compromised with the accused--No composition for the offence could be allowed unless all the legal heirs of the deceased would enter into compromise with the accused---Mother and daughter of the deceased having not compounded the matter with the accused, permission to compound the offence was declined.

Javed Aziz Sindhu. Advocate Supreme Court and Malik Abdul Khaliq Awan, Advocate Supreme Court for Petitioner.

Ch. Arshad Ali, Advocate Supreme Court and Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 6th March, 2003.

2003 S C M R 1070

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

MUHAMMAD KAMRAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 176 of 2002, decided on 5th March, 2003.

(On appeal from the judgment dated 17-8-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Jail Criminal Appeal No.486/J of 2000).

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Anti-Terrorism Act (XXVII of 1997), S.6(c)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused to reappraise the prosecution evidence as conviction of accused was based on an uncorroborated extra-judicial confession.

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

----Ss. 302(b) & 377---Appreciation of evidence---Extra-judicial confession---A three-fold proof is required to make the extra-judicial confession the basis of convictions; firstly that in fact it was made, secondly that it was voluntarily made, and thirdly that it was truly made.

Ahmed v. The Crown PLD 1951 FC 107; Abdul Latif v. Crown PLD 1952 FC 113 and Sarfaraz Khan v. State 1996 SCMR 188 ref.

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Anti-Terrorism Act (XXVII of 1997), S.6(c)---Appraisal of evidence---Had the dead body of the deceased been recovered on the pointation of accused, this fact would have been mentioned in the F.I.R. which was lodged after recovery of the dead body---Presence of the police in the house of the prosecution witness where the extra judicial confession was allegedly made by the accused and arrest of accused. from the same place had adversely reflected on the voluntariness of his extra judicial confession---Close relationship of the witnesses of extra-judicial confession with the accused could not make their statements sacrosanct because both of them were related to the complainant as well---Accused did not appear to have made an extra­ judicial confession before the said witnesses---In any case the extra ­judicial confession attributed to accused on which his conviction was based was neither voluntary nor true and admittedly was not strengthened by any corroborative evidence---Accused was acquitted in circumstances.

Mehrban v. Muhammad Ramzan and another 2002 SCMR 441; Ahmed v. The Crown PLD 1951 FC 107; Abdul Latif v. Crown PLD 1952 FC 113 and Sarfaraz Khan v. State 1996 SCMR 188 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant.

F.K. Butt, Advocate Supreme Court for the State.

Date of hearing: 5th March, 2003.

2003 S C M R 1074

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

ALI AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.523-L of 2001, decided on 13th March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 3-7-2001 passed in Murder Reference No. 189 of 1995 and Criminal Appeals Nos.643, 644 and 645 of 1999).

Penal Code (XLV of 1860)---

----Ss. 302/149 & 307/149---Constitution of Pakistan (1973), Art. 185(3)---Eye-witnesses including the complainant had supported the prosecution version in its, entirety and no dent could be made in their deposition in the cross-examination---Accused had committed the crime in a very brutal and barbaric manner---Trial Court had convicted the accused on proper assessment of the evidence which was affirmed in appeal by the High Court with some modification of sentence of one accused----Impugned judgment did not suffer from any misreading or non-reading of evidence---Leave to appeal was refused to accused in circumstances.

Ehsan Ullah and others v. Muhammad Arif and others 2001 SCMR 416 ref.

N.A. Butt, Advocate. Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing; 13th March, 2002.

2003 S C M R 1077

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ

MANSAB KHAN---Petitioner

Versus

MUHAMMAD AKRAM and others---Respondents

Criminal Petition No.72-L of 2002, decided on 25th June, 2002.

(On appeal from the judgment dated 24-12-2001 passed by, Lahore High Court, Lahore in Criminal Appeal No.340 of 1998).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Findings of acquittal of accused could not be shown to have been based on misreading or non-reading of any piece of evidence---High Court had appraised the evidence thoroughly on the principles for appraisal of evidence in criminal cases for safe administration of justice---Leave to appeal was refused to complainant in circumstances.

Zahid Hussain Khan, Advocate Supreme Court with Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 25th June, 2002.

2003 S C M R 1080

[Supreme Court of Pakistan]

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

AIJAZ AHMED KAZI---Appellant

Versus

PROVINCE OF SINDH and others---Respondents

Criminal Appeal No. 1297 of 1998, decided on 1st February, 2002.

(a) Pakistan Engineering Council Act (V of 1975)---

----Ss. 2 & 8---Equating .one kind of degree with other by Council for purpose of registration of engineers would not in any manner alter qualification prescribed by relevant rules for recruitment in civil service.

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

---S. 4---Appeal---Service Tribunal can go into question of legality of, original order in order to find out whether appellant had any right to maintain appeal.

Manzoor Ali Khan, Advocate Supreme Court for Appellants.

Suleman Habibullah Khan, Addl. A.-G., Sindh and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 1st February, 2002.

2003 S C M R 1083

[Supreme Court of Pakistan]

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

GOVERNMENT OF SINDH through Member

(RS&EP), Board of Revenue, Sindh and others---Appellants

Versus

Messrs BAYER PAKISTAN (PVT.) LTD. and others---Respondents

Constitutional Petitions . Nos.306-K to 309-K of 2002, decided on 24th June, 2002.

Stamp Act (II of 1899)---

----Ss. 2(10)(14), 3, 5, 6 & Sched. I, Cls. (5) & (23)---Enforcement of Shariah Act (X of 1991), Preamble---Constitution of Pakistan (1973), Art. 185(3)---Mark-up agreement, whether conveyance deed---Transaction of sale and re-purchase contained in the same document--­Effect---Supreme Court granted leave to appeal to consider that whether transaction of sale and re-purchase simultaneously recorded in the same documents would amount to conveyance and could not be treated as agreements; that whether there was no deviation from provisions contained in Stamp Act, 1899 and Shariah Act, 1991, while passing order by the Government that whether mark-up agreements were in fact conveyance deeds under Stamp Act, 1899 that whether hierarchy of Departmental Authority had rightly passed orders in respect of recovery of stamp duty and whether such order could be challenged by respondents in writ jurisdiction of High Court under Art. 199 of the Constitution.

Suleman Habib Ullah, Addl. A.-G. with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

M. Naeem, Advocate Supreme Court with M.S. Ghaury, Advocate-on-Record (in C.Ps. 307-K to 308-K of 2002) for Respondents.

Date of hearing: 24th June, 2002.

2003 S C M R 1085

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MUHAMMAD TAHIR SIDDIQUI and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY

BUREAU through Chairman and -another---Respondents

Constitutional Petition No. 11 of 2002, decided on 11th March, 2002.

(On appeal from this Court's order dated 8-3-2002 in Constitutional. Petition No. 11 of 2002).

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

----Ss. 16-A(c), 18(8), 24(b) & 25---Constitution of Pakistan (1973), Art. 186-A---Transfer of case by Supreme Court---Petition for transfer of reference---Petitioners who were accused in the reference had sought transfer of reference frontCourt at placeA' to Court at place K'--­Application for transfer of reference had been made by the petitioners at the earliest available opportunity when trial in the case against them was at initial stage---Prosecution had not brought any tangible material on record to demonstrate that petitioners had attempted to tamper with prosecution evidence by intimidating the prosecution witnesses or otherwise necessitating trial of reference at placeA'---Prima facie entire investigation in the case against the petitioners was carried out at place K' where reference was sought to be transferred---Accused, prosecution and defence witnesses belonged to place 'K' where alleged offence had taken place---Trial of the accountability cases was required by law to be concluded expeditiously, whereas Accountability Court at place 'A' was not functional for the time being---Power of transfer of a case from one Court to another had to be exercised with circumspection and caution, but Court would not hesitate to act in an appropriate case if ends of justice so demanded---One of the common circumstances relevant for the transfer of a case from one Court to another, was the evidence of substantial prejudice to a party or witnesses on account of logistic or such-like factors specially when alternative venue of the trial would not seriously handicap the State and rather would mitigate the serious difficulties of the accused to have a fair and impartial trial in a more congenial atmosphere---Would be in the interest of justice and fair and expectations trial if reference was transferred from Accountability Court at place 'A' for trial by Accountability Court at placeK'.

Mohtarma Benazir Bhutto and another v. The State through Chief Ehtesab Commissioner, Islamabad 1999 SCMR 759 ref.

Abid Hasan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record (absent) for Petitioners.

Raja Muhammad Bashir, Advocate Supreme Court assisted by M. Ghani, Advocate Supreme Court Naveed Rasool, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 11th March, 2002.

2003 S C M R 1090

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

Mrs. TAHIRA WAHEED---Petitioner

Versus

DIRECTOR, FEDERAL GOVERNMENT EDUCATIONAL INSTITUTIONS, SIR SYED ROAD, RAWALPINDI and another---Respondents

Civil Petition No. 1978 of 2000, decided on 15th April, 2002.

(On appeal from the judgment/order dated 21-10-2000 passed by Federal Service Tribunal, Islamabad in Appeal No. 163(R)CS of 2000).

Civil Servants (Revised) Leave Rules, 1980---

----Rr. 5 & 9---Government Servants (Efficiency and Discipline) Rules, 1973, R.4(b)(iii)---Constitution of Pakistan (1973), Art.212(3)--­Dismissal from service---Absence without leave---Ex-Pakistan leave, failure to obtain No-Objection Certificate---Civil servant absented from duty without leave for more than two years and had gone abroad without obtaining No-Objection Certificate for ex-Pakistan leave---Show-cause notice was issued and he was dismissed from service under RA(b)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973--­Departmental appeal as well as appeal before Service Tribunal were dismissed---Contention of the civil servant was that as No-Objection Certificate was granted to her to avail ex-Pakistan leave, therefore, presumption would be that Competent Authority had also sanctioned/granted leave in her favour---Validity---Leave in favour of a person boas sanctioned under Civil Servants (Revised) Leave Rules, 1980, after taking into consideration his/her leave account and if there was no leave found on his/her account, the civil servant would be entitled for leave without pay and on coming to such conclusion formula laid down under Rr. 5 & 9 of Civil Servants (Revised) .Leave Rules, 1980, was to be followed---If 'a Government Officer, without getting sanctioned leave in his/her favour, left the Department, he/she would do so at his/her own risk and in such a situation, the presumption would be that he/she was absent from duty---Service Tribunal had rightly concluded that as the civil servant absented herself from the duty for a sufficient long period without getting sanctioned leave in her favour, therefore, she was rightly found guilty for major penalty of dismissal from service---Supreme Court declined to interfere with the dismissal order---Leave to appeal was refused.

Sardar Muhammad Siddique Khan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th April, 2002.

2003 S C M R 1092

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Syed QAMAR IQBAL RIZVI---Petitioner

Versus

GOVERNMENT OF PUNJAB and another --- Respondents

Civil Petition No.47 of 2000, decided on 1st April, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 3-11-1999 passed in Appeal No.2220 of 1999).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----

----R.4(1)---Constitution of Pakistan (1973), Art. 212(3)---Misconduct--­Use of funds without approval and sanction--- Dismissal from service--­Charge against the civil servant was that he made certain payments without prior approval of concerned Authorities---Show-cause notice was issued and then in consequence of departmental inquiry, the civil servant was dismissed from service---Order of dismissal was maintained by the Service Tribunal---Validity---Civil servant admitted making of such payments which was not .only an irregularity but also constituted misconduct under Punjab Civil Servants (Efficiency and Discipline) Rules, 1974---No factual or legal defect existed either in the order of the Competent Authority or in -the judgment/order of Service Tribunal---Supreme Court declined to interfere with the order passed by Competent Authority which was confirmed by Service Tribunal in appeal---Leave to appeal was refused.

Raja M. Ibrahim Satti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate Supreme Court for Petitioner.

Farooq Aziz, Director for Respondent.

Date of hearing: 1st April, 2002.

2003 S C M R 1095

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmad Khan, JJ

GHULAM RASOOL---Petitioner

Versus

COMMISSIONER, LAHORE DIVISION, LAHORE and 2 others---Respondents

Civil Petition No.3435-L of 2001, decided on 15th April, 2002.

(On appeal from the order dated 3-9-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1856 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R.4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Admission of guilt---Civil servant was charge-sheeted on the allegation of issuance of arms licences without sanction from the District Magistrate---Departmental inquiry was conducted against the civil servant and on his failure, to reply the charge-sheet satisfactorily major penalty of removal from service was recommended---Competent Authority after affording opportunity of personal hearing to the civil servant, imposed major penalty of removal from service---Service Tribunal declined to interfere with the order of dismissal passed against the civil servant---Plea raised by the civil servant was that he had been falsely implicated in the case---Validity---Proper procedure as laid down under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, had been adopted and the civil servant had been removed from service in accordance with law after issuing him a charge-sheet and holding preliminary and final inquiries in the matter with a chance of personal hearing---Inquiry reports revealed that the civil servant during personal hearing. had admitted that he had prepared/issued a lot of arms licences and such fact was admission of guilt of the charges leveled against him---Supreme Court declined to interfere with the order of dismissal--­Leave to appeal was refused.

M. S. Baqir, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th April, 2002.

2003 S C M R 1097

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABDUL QAYYUM ABBASI---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others---Respondents

Civil Petition No.701-L of 1999, decided on 21st May, 2002.

(On appeal from the judgment/order dated 18-2-1999 passed by Punjab Service Tribunal, Lahore in Appeal No.2818 of 1997).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Reinstatement of colleague of civil servant in service---Failure to participate in inquiry proceedings--­Civil servant was proceeded departmentally in pursuance of charge ­sheet---During the inquiry proceedings, the civil servant was given sufficient opportunity to participate in the inquiry but he absented himself---Civil servant was dismissed from service and the dismissal order was maintained by Appellate Authority as well as Service Tribunal---Contention of the civil servant was that he had not been afforded proper opportunity of hearing and also contended that another colleague of him was reinstated in service thus he was also liable to be reinstated---Validity---Full opportunity was given to the civil servant but he himself did not participate in the proceedings---Supreme Court declined to discuss the case of the colleague of the civil servant as it was not known as -to what type of material was- brought by the Department against him and under what circumstances he was reinstated in service--­Leave to appeal was refused.

Hameed Azhar Malik, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Ms. Salma Malik, A.A.-G. (Punjab) for Respondents.

Date of hearing: 21st May, 2002.

2003 S C M R 1100

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

Dr. IQTIDAR ULLAH BABAR---Petitioner

Versus

MUHAMMAD IQBAL AND 3 others---Respondents

Civil Petitions Nos. 184-P and 185-P of 2002, decided on 12th June, 2002.

(On appeal from the judgment/order dated 1-4-2002 passed by N.-W.F.P. Service tribunal, Peshawar in Appeals Nos.640 and 641 /Neem/2001).

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

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Selection for post--- Assessment of qualifications--Service Tribunal, jurisdiction of--­Petitioner was selected by Departmental Selection Committee for the post of Assistant Professor Pathology---Respondents -filed appeal before Service Tribunal against the selection of the petitioner, which was allowed and the selection was set aside---Controversy related to assessment of qualifications and experience of candidate to judge his suitability for the, post---Validity---Leave to appeal was granted by Supreme Court to consider, whether the Service Tribunal could competently reverse the selection made by Departmental Selection Committee and substitute its opinion regarding suitability of candidates by evaluating their qualifications and experience or while doing so it had acted in excess of its jurisdiction.

Qazi Atiqur Rehman, Advocate Supreme Court for Petitioner (in both Cases).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 1 (in both cases).

Mussarat Hilali, Addl. A.-G., N.-W.F.P. for Respondents Nos. 2 to 4 (in both cases).

Date of hearing: 12th June, 2002.

2003 S C M R 1102

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

TARIQ MAHMOOD---Petitioner

Versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD and another---Respondents

Civil Petition No.3204 of 2001, decided on 11th July, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 11-9-2001 passed in Appeal No.448(R) (C.S.) of 2000).

Government Servants (Revised) Leave Rules, 1980--

----R.20---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Absent without leave---Dismissal from service--Medical leave---Failure to consult doctor in Government hospital---Civil servant was dismissed from service on the charge of absence from duty without leave---Departmental Authorities having not been satisfied with the plea of serious illness of the civil servant dismissed him from service as the civil servant did not consult any doctor in Government hospital---Order of dismissal was maintained by the Service Tribunal---Civil servant contended that in case of leave on medical ground the Authority competent to sanction leave could secure second medical opinion but there was no justification either for refusal of leave or for ,initiation of departmental proceedings---Validity---Civil servant failed to explain as to why he had not applied to the concerned Authorities for grant of leave on medical ground and for what reason he did not consult the doctor in Government hospital and inform concerned quarters about his illness---Service Tribunal having perused service record of the petitioner observed that he' was habitual, wilful absentee without authorized leave and that such conduct was not in conformity with the Government Servants (Conduct) Rules, 1964---Tribunal for its satisfaction, could competently look. into the service record of the civil servant and earlier absence of the civil servant was relevant to determine the present matter ---Leave to appeal was refused.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Nemo for Respondents

Date of hearing: 11th July, 2002

2003 S C M R 1105

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and khalil-ur-Rehman Ramday, JJ

ALAMDAR HUSSAIN ---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and others-- -Respondents

Civil Petition No. 1507-L of 1999, decided on 6th June, 2002.

(On appeal from the judgment dated 18-6-1999 passed by the Punjab Service Tribunal in Appeal No.662 of 1998).

Constitution of Pakistan (1973)---

----Art.212(3)---Date of birth, correction of---Principles---Grievance of the civil servant was that inadvertently his year of birth had been recorded as 1939 instead of 1941---Correction was sought, for the first time in the year 1998 which was denied by the Departmental Authorities as well as by Service Tribunal---Plea raised by the civil servant was that he had been serving in erstwhile East Pakistan and due to non-receipt of proper record from there. his date of birth was wrongly entered in his service record---Validity---Government employee under the relevant rules could not make prayer for correction of his date of birth after two years of joining of service---If the civil servant had valid claim regarding his date of birth he should have instituted proceedings for correction of his date of birth within the period of two years after coming back from East Pakistan and if it was not possible then at least should have agitated for correction of his date of birth within reasonable time---Presumption was that the civil servant was satisfied with his date of birth because he did not challenge the same at the earliest stage---Civil servant had full knowledge about such entry in his service record because his date of birth had been mentioned in Annual Confidential Reports---Despite acquiring knowledge, the civil servant did not agitate against such entry as such by his own conduct, he could not be allowed to change his stance after a considerable long period---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Iqbal Haider v. Federation of Pakistan 1998 SCMR 1494 ref.

Syed Shabbar Raza Rizvi, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th June, 2002.

2003 S C M R 1108

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

DIRECTOR, PUBLIC INSTRUCTIONS (E.E.), PUNJAB and others---Petitioners

Versus

LIAQAT ALI KHAN---Respondent

Civil Petition for Leave to Appeal No.3667-L of 2001, decided on 8th May, 2002.

(On appeal from the judgment dated 25-9-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2999 of 2000).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Arrears of salary, entitlement to---Period consumed during departmental proceedings--­Reinstatement in service---Civil servant was dismissed from service on , the allegation of absence without leave---Order of dismissal was set aside by Departmental Appellate Authority and the civil servant was reinstated in service---Salary qua the period during which the civil servant remained out of service was treated as extraordinary leave---Service Tribunal found the civil servant entitled to the payment of arrears of pay for the period---Validity---Competent Authority had set aside the order of dismissal from service of the civil servant being satisfied that the same was not passed in a proper manner--If the civil servant was not at fault to any manner, he could not be deprived of his salary for the period during which his departmental appeal could not be decided by the Competent Authority in time- --Authorities failed to raise question of law of general public importance as envisaged within the contemplation of, Art 212(3) of the. Constitution warranting interference by Supreme Court---Leave to appeal was refused.

Malik Akhtar Hussain Awan, Additional Advocate-General, Punjab with Muhammad Anwar Ghuman, Advocate Supreme Court for Petitioner.

Respondent in person.

Date of hearing: 8th May, 2002.

2003 S C M R 1110

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

ABDUL QAYYUM---Petitioner

Versus

D.G., PROJECT MANAGEMENT ORGANIZATION, JS HQ, RAWALPINDI and 2 others---Respondents

Civil Petition No.281 of 2001, decided on 24th June, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 20-11-2000 passed in Appeals Nos.230 (P) and 996(R) of 1999).

(a) Government-Servants (Efficiency and Discipline) Rules, 1973-----

----Rr.3(b), 4(1)(b)(iv), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service without holding of regular inquiry---Effect---Charge against civil servant was of being involved in preparing forged documents for hiring accommodation for his co-employee---Show-cause notice issued on the basis of preliminary inquiry was replied by civil servant---Competent Authority finding the civil servant guilty of misconduct dismissed him from service---Service Tribunal dismissed appeal of civil servant--­Validity---Record showed that preliminary inquiry had been held for purpose of collecting evidence in support of allegation for holding a regular inquiry under Government Servants (Efficiency and Discipline) Rules, 1973---Serving of charge-sheet with statement of allegation to civil servant was necessary under the Rules to provide him a fair opportunity to submit reply to the charges---Civil servant was entitled to cross-examine witnesses and produce evidence in rebuttal in regular, inquiry---Competent Authority in the light of evidence and findings of Inquiry Officer could pass an appropriate order, but respondents without observing the procedure of inquiry had awarded major penalty to civil servant on the basis of preliminary inquiry---Authorised Officer in his note had stated that civil servant was being proceeded against for misconduct under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973, thus, without explicit order of dispensation of requirement of regular inquiry, departure from normal rule was not legal--Civil servant had been dismissed from service without establishing charge of misconduct by way of holding a proper inquiry and providing him opportunity of hearing---Question, whether transaction in question was a private affair between civil servant and co­ employee or same would constitute an act of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973, would need determination in the light of explanation given , by civil servant ---Co-employee, the real beneficiary of transaction and main character of the drama, had not been proceeded against, whereas civil servant, who was a middle man, had been held responsible---Dismissal of civil servant from service in summary manner was violative of principle of natural justice---Supreme Court converted petition into appeal and accepted same, set aside impugned judgment and re-instated civil servant in service with back­ benefits.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 5 & 6---Regular inquiry, requirement of---Without an explicit order of dispensation of requirement of regular inquiry, departure from normal rule was not legal---Requirement of regular inquiry could be dispensed with in exceptional circumstances---Where recording of evidence was necessary to establish the charges, then departure from requirement of regular inquiry under the Rules would amount to condemn a person unheard.

Muhammad Munir Peracha, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Petitioner.

Sardar Muhammad Ghazi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 24th June, 2002.

2003 S C M R 1115

[Supreme Court of Pakistan]

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

ZULFIQAR-UL-HUSNAIN and 19 others---Appellants

Versus

OIL AND GAS DEVELOPMENT CORPORATION---Respondent

Civil Appeals Nos. 925 to 943 of 1999 and 1068 of 2000, decided on 15th January, 2001.

(On appeal from the judgment dated 16-3-1999 and 18-3-1999 passed by the Federal Service Tribunal. Islamabad in Appeals Nos.797-R, 600-R, 602-R, 601-R, 599-R, 597-R, 598-R, 589-R, 591-R, 581-R, 594-R, 583-R, 586-R, 603-R, 593-R, 592-R, 585-R, 588-R and 596-R of 1997 and Appeal No, 561-R of 1997).

(a) Oil and Gas Development Corporation Act (XXXVII of 1961)----

----Ss. 5 & 6(1-C)---Service Tribunals Act (LXX of 1973), S.4--­Constitution of Pakistan (1973), Art. 212---Promotion from Executive Group-I to Executive Group-III---Criteria---Assistant Officers (Non­ Technical) and Assistant Officers (Technical) both previously placed in NPS-16 were placed in Executive Groups-I & II respectively after introduction of Pay Groups instead of Pay Scales---Contention of appellants-Assistant Officers (Non-Technical) was that their shifting from EG-I to EG-II would not amount to promotion as both categories pertained to Assistant Officers; and. that they- were entitled to be promoted from EG-I to EG-III in order to maintain uniformity between Assistant Officer (Non-Technical) and Assistant Officer (Technical) as was the practice in past---Service Tribunal dismissed the appeal of appellants on the ground that Assistant Officer placed in EG-I could not jump over to EG-III without having put in five years' service in EG-II; and, that both such categories could not be treated alike ---Validity--­Assistant Officer (Non-Technical) EG-I and Assistant Officer (Technical) EG-II both fell within same category of employees---No discriminatory treatment could be meted out to either category in the matter of promotion to next higher group i.e. EG-III ---Promotion claimed by appellants from EG-I to EG-III would not be in conflict . with policy decision taken by Board as reflected in its letter dated 28-1-1980 clearly stipulating that promotion criteria and other terms and conditions of employment of Officers would remain unchanged after introduction of Pay Groups---Supreme Court accepted appeals and set aside impugned judgment to the extent of appellants with the result that they would be entitled to grant of promotion to EG-III with effect from the dates they, were promoted to EG-II.

Muhammad Ali v. The Chairman, Oil and Gas Development Corporation, Islamabad Appeal No. 417-R of 1997 ref.

(b) Civil service---

----Doctrine of past and closed transaction---Applicability---Order affecting large number of employees was challenged only by some of them before Service Tribunal---Contention of Authority was that grant of relief to present appellants would affect about 300 other employees of Corporation---Validity---Such contention was not sustainable as order proposed to be passed in such proceedings would be confined to cases of present appellants alone and not other employees having failed to approach Tribunal for redress of their grievance---Cases of those employees would be hit by doctrine of past and closed transaction. Withholding relief to present appellants in these proceedings on such ground would not be justified.

(c) Oil and Gas Development Corporation Act (XXXVII of 1961)-----

----Ss. 5 & 6---Promotion policy---Power of Chairman ---Scope--­Chairman/Delegatee could not lay down a policy of promotion, which had the effect of nullifying the decision taken by the Board itself.

(d) Oil and Gas Development Corporation Act (XXXVII of 1961)-----

----Ss. 5 & 6(1-C)---Service Tribunals Act (LXX of 1973), S.4--­Constitution of Pakistan (1973), Art.212(3)---Promotion from Executive Group-II to Executive Group-III---Appellant while working as Assistant Accountant in EG-I was appointed on 9-5-1990 as Marketing Officer in EG-II---Appellant thereafter represented to Corporation that he should have been appointed in EG-III instead of EG-II on account of having more experience; and that EG-III was not for non-technical officers--­Service Tribunal dismissed the appeal on the ground that appellant had accepted offer and joined as Marketing Officer without any protest--­Contention of appellant was that under similar circumstances 14 Assistant Accountants in EG-I had been promoted to post of Accountants in EG-III following the decision of Service Tribunal also affirmed by Supreme Court, thus, there was no reason for not granting promotion to appellant to EG-III w.e.f. 9-5-1990--­Validity---Discriminatory treatment had been meted out to appellant as well as 14 other Assistant Accountants in EG-I similarly placed as he in the matter of grant of EG-III from a specified date---Supreme Court accepted appeal and set aside impugned judgment holding that appellant was entitled to placement in EG-III with effect from the date of his original appointment i.e. 9-5-1990.

Abdul Jabbar Memon and others' case 1996 SCMR 1349 ref.

Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in C. As. Nos. 925 to 931 of 1999).

Raja Muhammad Bashir, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in C.As. Nos.932 to 943 of 1999).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant (in CA. No. 1068 of 2000).

Shah Abdur Rashid, Advocate Supreme Court for the Respondent-Corporation.

Date of hearing: 15th January, 2001.

2003 S C M R 1126

[Supreme Court of Pakistan]

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

PROVINCE OF SINDH through Secretary Education, Government of Sindh, Karachi and 3 others---Petitioners

Versus

Miss SAIMA BANO and others---Respondents

Civil Petitions, for Leave to Appeal Nos.544-K to 555-K of 2002, decided on 17th July, 2002.

(On appeal from judgment dated 29-3-2002, passed by the Sindh Service Tribunal, Karachi, in Appeals Nos. 123 to 134 of 1999).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Departmental appeal /representation despatched under postal certificate---Non-consideration of such appeal/representation---Civil servant was terminated from service by Competent Authority and against the order of termination, civil servant preferred departmental appeal/representation which was despatched under postal cover--­Appellate Authority did not consider the appeal at all or, the same was not placed before it for the reasons best known to the quarters concerned---Order passed by the Appellate Authority was not a speaking order---Civil servant was not even. afforded a chance of personal hearing before passing the termination orders---Authenticity and genuineness of the postal certificate was neither challenged, nor questioned by the Authorities before Service Tribunal---Appeal before Service Tribunal was allowed, termination order was set aside and the case was remanded to the Authorities for decision afresh---Validity---Where the civil servant was not afforded a chance of personal hearing before passing of termination order, such order would be void ab initio---Service Tribunal had rightly allowed the appeal and set aside the termination order--­Judgment passed by the Service Tribunal was well-reasoned and based on the law laid down by Supreme Court---No misreading or non-reading of material available on record was found---Question of general public importance was also not involved in the matter---Leave to appeal was refused.

Suleman Habibullah, Additional Advocate-General, Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 17th July, 2002.

2003 S C M R 1128

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman---Petitioner

Versus

INAYAT RASOOL---Respondent

Civil Petition No.371-K of 2001, decided on 27th May, 2002.

(On appeal from the judgment dated 31-3-2001 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1560 (K) of 1998).

(a) Pakistan International Airlines Corporation Personnel Policies Manual---

---- C1. 18:06:05---Pakistan International Airlines an Essential Utility Service (M.L.R. 52), para.5---Qanun-e- Shahadat (10 of 1984), Art. 114---General Clauses Act (X of 1897), S.21---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)--­Dismissal from service under M.L.R. 52---Review Board declared such order void ab initio---Re-employment of respondent through order dated 14-2-1990 without benefit of his previous service---Authority though order, dated 3-7-1995 counted previous service bf respondent for purpose of pensionary benefits in terms of cl. 18:06:05 of PIAC Personnel Policies Manual---Respondent opted for Voluntary Golden Handshake Scheme subject to grant of benefit of service rendered by him prior to his termination and also for period during which he remained out of service in terms of letter dated 31-7-1995 issued on recommendation of Review Board---Authority accepted such option without giving benefit of service rendered prior to re-employment---Respondent approached Authority for injustice done to him by depriving him from legitimate right of re-instatement in service- with benefit of previous service, but failed---Service Tribunal accepted respondent's appeal---Validity--­Review Board had recommended re-employment of respondent with grant of benefit of previous service towards pensionary benefit and seniority---Review Board had used word 're-employment' for re­instatement and its recommendation practically was for re-instatement in service without grant of financial back-benefits---Authority having extended benefit of previous service to respondent and acknowledged same before Supreme Court in Pakistan International Airlines. Corporation v. Malik Khalid Hussain and others (C.R.P. No.7-K of 2001 etc.), could not re-trace its steps and change its position contrary to stand earlier taken before Supreme Court---Such admission of Authority would estop it from taking a different position at the cost of disadvantage to respondent in the present case---Benefit of previous service given to respondent through order dated 3-7-1995 having taken effect had created valuable rights in his favour and had attained finality, which could not be undone on the strength of re-employment order, dated 14-2-1990, rather same would be deemed to have been superseded and merged in subsequent order, dated 31-7-1995, which would hold field for purpose of Golden Handshake Scheme---Supreme Court dismissed petition for leave to appeal.

Civil Review Petitions Nos.7-K to 13-K of 2000 and Pakistan International Airlines Corporation v. Malik Khalid Hussain and others C.R.P. No.7-K of 2001 etc. rel.

(b) Civil service---

---- Re-employment and reinstatement in service ---Distinction---Re­employment in plain words is fresh appointment, whereas reinstatement is to place a person in his previous position.

(c) Locus poenitentiae, principle of---

----Authority having power to make an order has also power to undo the same---Exception---Order once having taken legal effect and created certain rights in favour of any individual cannot be withdrawn or rescinded to the detriment of those rights- --General Clauses Act (X of 1897), S.21.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 fol.

Government of Pakistan v. Fauji Cement Company Ltd. 2001 SCMR 1771; 2000 SCMR 2883; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Government of Sindh v. Niaz Ahmad 1992 SCMR 2293; Excel Builders v. Ardeshir Cowasjee 1999 SCMR 2089; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 and Themas v. Dawar Khan PLD 1990 SC 629 rel.

Fazal-i-Ghani, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record (absent) for Petitioner.

Respondent in person.

Date of hearing: 27th.May, 2002

2003 S C M R 1140

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

SAMIULLAH KHAN MARWAT---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Islamabad and another---Respondents

Civil Petition No. 761 of 2000, decided on 2nd April, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 30-3-2000 passed in Appeal No. 113-R of 1999).

(a) Government Servants (Efficiency and Discipline) Rules, 1973-----

----Rr. 3(a)(b)(c), 4(1)(b)(iv), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Charges against civil servant while holding charge as S.S.P. and D.I.-G. of Police related to inefficiency, loss of control over subordinates, victimization of citizens through illegal arrests, detentions and registration of false cases---Dismissal of appeal of civil servant by Service Tribunal in the light of findings of Inquiry Officer and report of Prime Minister's Inspection Commission---Validity---Inquiry Officer on the basis of evidence brought in inquiry had found civil servant guilty of such charges---Competent Authority after issuing final show-cause notice to civil servant and considering the matter had dismissed him from service---Departmental Authorities had also considered report of Prime Minister's Inspection Commission, which had neither been brought on record in proceedings before Inquiry Officer nor had been put to civil servant in inquiry---Such report of Prime Minister's Inspection Commission could not be treated as material against civil servant for purposes of inquiry under Government Servants (Efficiency and Discipline) Rules, 1973---Refe- Reference to such report made by Service Tribunal or impugned judgment was not proper and legal---Findings of Inquiry Officer were not suffering from misreading or non-reading of evidence---Civil servant while holding charge of S.S.P. and D.I.-G Police would be deemed to be custodian of rights of citizens and was under legal obligation ,not to permit his subordinates to use the machinery of criminal law against innocent people instead of protecting their rights and liberties as guaranteed under Constitution and was also not supposed to take any exception to legal acts of his subordinates--­ Exercise of powers by public functionaries in derogation to direction of law would amount to disobeying the command of law and Constitution--­ Failure of civil servant to initiate departmental proceedings against his subordinates for illegalities committed by them despite knowledge, would be a strong proof of his involvement in such activities and presumption would be that such activities had been carried out under his instructions---Wilful violation of law by a Senior Officer and permission to his subordinates to violate law, would tantamount to misconduct and indiscipline---Absolving civil servant from all other charges except said charges would show that Inquiry Officer was entirely independent, against whom no bias had been pleaded---No exception could be taken to report of Inquiry Officer---Order of dismissal from service passed by Competent Authority could sustain without report of Prime Minister's Inspection Commission---Major penalty of dismissal from service on such charges was unexceptionable---Supreme Court dismissed petition for leave to appeal having no substance.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 5 & 6---Proceedings before Inquiry Officer---Material neither brought on record in proceedings before Inquiry Officer nor put to accused civil servant in inquiry---Such material could not be used against accused as evidence by Authorized Officer and Competent Authority.

(c) Administration of justice---

----Concept---Administration of justice is not confined only to judicial system---Every person discharging functions in relation to rights of people is bound to act fairly, justly and in accordance with law—­Exercise of powers by public functionaries in derogation of direction of law would amount to disobeying the command of law and Constitution--­If a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse of his official authority, he should be made answerable to law and should be proceeded against for an appropriate action by his superiors.

(d) Government Servants (Efficiency and Discipline) Rules, 1973-----

----R.2(4)---"Misconduct"---Connotation---Mere inefficiency as such might not fall within definition of misconduct---Wilful violation of law by a Senior Officer and permission to his subordinates to violate law, would tantamount to misconduct and indiscipline.

Qazi Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd April, 2002.

2003 S C M R 1152

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Messrs PACKAGES LIMITED--- Petitioner

Versus

MUHAMMAD AKBAR and others---Respondents

Civil Miscellaneous Application No.637-L and Civil Petition No. 1810-L of 2002, decided on 4th June, 2002.

(On appeal from the judgment/order dated 29-5-2002 passed by Lahore High Court, Lahore in I.C.A. No.445 of 2002).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss.2 (xxviii) & 15(2)---Law Reforms Ordinance (XII of 1972); S.3 ---­Constitution of Pakistan (1973), Art. 185(3)---Interim relief, grant of--­Elections of trade union---Candidate, whether a workman--­Determination---Findings of fact recorded by Registrar Trade Unions --­Intra-Court Appeal admitted for hearing but interim relief denied--­Candidature of the candidate was disputed on the ground that he was not a workman and fell within the category of junior executive---After having recorded the evidence, the Registrar found that the candidate was capable to recommend to the Senior Store Officer disciplinary action against driver or worker etc. and besides he also performed all other. duties which fell within the category of managerial type of assignments---Registrar Trade Unions after hearing the parties and recording the evidence concluded that the candidate being junior executive was not workman and was not eligible to contest the election--­High Court allowed Constitutional petition filed by the candidate and the findings of fact recorded by the Registrar were reversed---Order passed by the High Court was assailed by filing Intra-Court Appeal---High Court admitted the Intra-Court Appeal for regular hearing but declined to suspend the impugned order---Plea of the petitioner was that as the schedule of election had been announced by the Registrar, therefore, after the elections the Intra-Court Appeal would become infructuous--- Validity---Candidate was prima facie not a workman and High Court might not have substituted the findings of fact recorded by the Registrar Trade Unions---Once the High Court had admitted the Intra-Court Appeal it might have also suspended the order in the Constitutional petition after issuing notice for short date to the candidate- --High Court in Intra-Court Appeal by adjourning the case for a longer time had in fact denied grant of interim relief to the petitioner with the result that ultimately when the Intra-Court Appeal would come up for hearing, it would become infructuous as in the meanwhile the election of the union would take place---Supreme Court suspended the order passed by High Court in Constitutional jurisdiction---Interim relief was granted.

Dilawar Jan v. Gul Rehman and .5 others PLD 2001 SC 149 ref.

Maqbool Ellahi Malik, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Respondent No. l in person.

Date of hearing: 4th June, 2002.

2003 S C M R 1155

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

GOVERNMENT OF PAKISTAN through Additional Secretary, Ministry of Finance, Islamabad and 3 others- --Petitioners

Versus

SANDOZ (PAKISTAN) LIMITED, BAHRIA COMPLEX. KARACHI---Respondent

Civil Petition for Leave to Appeal No. 62-K of 2000, decided on 25th July, 2000.

(On appeal from the judgment, dated 30-10-1999 of High Court of Sindh passed in C.P. NO.D-514 of 1995).

Central Excises Act (I of 1944)------

-----First Sched., Entry No. 4.3---Central Excise Rules, 1944, Rr.7, 9, 52, 236 & 238---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether as per Entry No.4.3 of First Schedule to Central Excises Act, 1944, glazes, lusterers, lacquers and polishes and their ancillaries in any form fell within the ambit of the entry and such were chargeable to excise duty and whether leucophor being of the category also fell within the scope of the entry, whether the authorities contravened Rr. 7, 9, 52, 236 & 238 of Central Excise Rules, 1944; and whether Leucophor' andTenophal' CBS-X were comparable commodities and were to be treated alike.

Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioners.

Siddique Mirza. Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate-on-Record for Respondent.

Date of hearing. 25th July, 2000.

2003 S C M R 1156

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

SIDDIQUE WOOLLEN MILLS and others---Petitioners

Versus

ALLIED BANK OF PAKISTAN---Respondent

Civil Petition No.2288/L of 2000, decided on 3rd July, 2001.

On appeal from the judgment dated 18-5-2000 passed by Lahore High Court, Lahore in R.F.A. No.489 of 1998).

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

----Ss. 9 & 10---Constitution of Pakistan (1973), Art.185(3)---Recovery of Bank loan---Leave to defend suit---Bona fide dispute ---Scope--­Retaining of goods of borrower by Bank---Liability towards outstanding amount of the Bank was not denied by the borrowers, except raising the plea that the Bank had retained the goods of the borrowers unauthorisedly---Banking Court decreed the suit in favour of the Bank and the judgment and decree was maintained by High Court---Plea of the borrowers was that the raw material imported by them was retained by the Bank due to which the borrowers had suffered loss---Validity---Plea of the borrowers neither constituted a defence in their favour independently nor it gave rise to a bona fide dispute between the parties because in such cases, the Court was required to examine the liability and its acceptance by the borrowers---Question of sustaining losses by the borrowers on account of conduct of the Bank could be sorted out in some other forum instead of claiming relief on such basis from Banking Court---Banking Court in exercise of its jurisdiction under S.10 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 could only entertain defence of the borrower, if prima facie a bona fide dispute had been disclosed---Since the borrowers had not denied their liability towards the Bank, therefore, the Banking Court had rightly passed the judgment and decree which was maintained by High Court---Leave to appeal was refused.

Sahibzada Riaz Anwar, Advocate Supreme Court and Mahmud­-ul-Islam, Advocate-on-Record (absent) for Petitioners.

Muhammad Aslam Ch., Advocate-on-Record (absent) for Respondent.

Date of hearing: 3rd July, 2001.

2003 S C M R 1158

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

AFZAL MAQSOOD BUTT---Petitioner

Versus

BANKING COURT, LAHORE NO.2 and others---Respondents

Civil Petitions Nos. 3087 and 3088 of 2001, decided on 5th June, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 12-9-2001 passed in W.Ps. Nos.23858 and 23859 of 1998 respectively).

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

----S.21---Civil Procedure Code (V of 1908), O.XXI, Rr.87, 89 & 92--­Constitution of Pakistan (1973), Art.185(3)---Execution of decree ---Re ­auction of property---Failure to set aside earlier auction ---Validity--­Leave to appeal was granted by Supreme Court to consider, whether without setting aside the earlier auction, Banking Tribunal could competently issue fresh schedule of auction and whether the confirmation of sale in favour of the petitioner as a result of earlier auction was legal and valid and High Court in exercise of Constitutional jurisdiction was justified to set aside the sale and interfere in the matter.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Alamgir, Advocate Supreme Court for Respondent No.2.

Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Habib Bank Ltd.

Sh. Maqbool Ahmed, Advocate Supreme Court for Pakistan Industrial Leasing Corporation.

Date of hearing: 5th June, 2002.

2003 S C M R 1161

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Syed FARASAT ALI SHAH---Petitioner

Versus

ALLIED BANK OF PAKISTAN LTD. and others---Respondents

Civil Petition for Leave to Appeal No. 1092/L of 2002, decided on 7th May, 2002.

(On appeal from the judgment dated 14-2-2002 of the Lahore High Court, Lahore, passed in Writ Petition No. 12374 of 1999).

Banking Tribunals Ordinance (LVIII of 1984)---

----S.6---Civil Procedure Code (V of 1908), O.XXI, R. 23-A & S.151--- Constitution of Pakistan (1973), Art. 185(3)---Recovery of Bank loan--­Execution of decree---Objection to maintainability of decree---Non-filing of appeal---Judgment and decree passed by Banking Tribunal had attained finality as the borrower did not file any appeal against the same---High Court had in other cases declared certain provisions of Banking Tribunals Ordinance, 1984, as unconstitutional---Objection was raised by the borrower during the execution proceedings to maintainability of the decree on the basis of the judgment by the High Court---Banking Court and High Court dismissed the objection petition filed by the borrower---Contention of the borrower was that since the judgments and decrees passed by the Tribunal constituted under Banking Tribunals Ordinance, 1984, were set aside as its very constitution was declared unconstitutional, therefore, the decree passed against the borrower was rendered coram non judice and execution proceedings could not proceed---Validity---Decree was passed as far back as 10-11-1993 after five years of institution of the suit for recovery---No appeal as provided under Banking Tribunals Ordinance, 1984, was filed by the borrower---Bank was well within its right to initiate execution proceedings against the borrower---Supreme Court declined to interfere with the orders passed by High Court---Leave to appeal was refused.

Soneri Bank Limited through Mian Abdul Wajid, EVP and another v. Raja Weaving Mills Limited and another KLR 1997 Civil Cases 742 ref.

Sh. Zia Ullah, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 7th May, 2002.

2003 S C M R 1164

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Mirza ZAHEER AHMAD --- Appellant

Versus

THE STATE---Respondent

Criminal Appeals No.462 and 463 of 2000, decided on 15th April, 2003.

(On appeal from the order/judgment dated 21-10-1998 passed by Lahore High Court, Lahore in Criminal Appeals Nos.446, 453 and 459 of 1992 and M.R. No.352 of 1992).

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

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court to determine as to whether the impugned judgment was based on proper assessment of evidence on record.

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

----S.302---Reappraisal of evidence---Principles---Rule that conviction in a criminal case cannot, be based upon evidence. of witnesses of impeachable character can be applied after consideration of facts and circumstances of each case in depth---Each case has to be decided on its own facts because it is very rare that the facts of two cases in which crime has taken place at different times are similar---Person cannot be stamped to be a man of impeachable character merely for the reason that he remained involved in the case, because to ascertain such aspect of the matter, it is necessary to go into the facts and circumstances of the case in which accused had committed the crime---Nothing had been brought on the record by the defence, in the present case, to substantiate that besides criminal case relating to the murder of father of one of the accused persons both the witnesses remained involved in drugs business or gunrunning etc.---Substitution in the case was impossible because it could never happen that a father in whose presence his son had been killed would allow the real culprit to go scot-free and involve an innocent person in the commission of the offence---Accused had also taken the plea that perhaps he as a social reformer, used to complain against the conduct of the witnesses to the Authorities as according to him they were involved in drug business etc., therefore, they had involved him in the murder case falsely but he failed to substantiate his plea by convincing evidence beyond simply making suggestions during cross-examination---Both the witnesses were closely related to the deceased and they had furnished trustworthy evidence to support the prosecution case---Statements of both the witnesses got corroboration from each other and the medical evidence had substantiated their version---Evidence of both the witnesses, thus, could not be discarded merely for the reason that they were closely related to the deceased and they had furnished natural and coherent evidence---In spite of the fact that they were subjected to lengthy cross-examination yet nothing beneficial to defence was extracted from them---Conviction of the accused under S.302, P.P.C. was maintained in circumstances by the Supreme Court.

Muhammad Aslam and 4 others v. The State 1975 PCr.LJ 1058 distinguished.

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

----S. 302---Appreciation of evidence---Benefit of doubt, extension of--­Neither incriminating articles were recovered from the place of incident to connect the accused persons with the commission of the offence nor any one had sustained injuries at their hands with the firing allegedly made by them---Nothing was recovered from the spot to establish their presence in the shop for the purpose of commission of the offence, therefore, High Court by extending benefit of doubt had rightly acquitted them of the charge.

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

----S. 302---Appraisal of evidence---Absence of motive---Sentence, reduction in---Prosecution had not alleged any motive against the accused in the F.I.R. inasmuch as during trial nothing had come on record to suggest the motive for which he had committed murder---Rule that presence of motive in each case was not necessary particularly when a cold blooded or wanton murder had been committed had to be applied only keeping in view the facts and circumstances of each case---Accused had only caused one injury on the person of deceased---No motive was though assigned to the accused, in the present case, but during his statement one of the witnesses attempted to improve his earlier statement with regard to the motive but statement of a witness which had been improved in the Court, would not advance the cause of prosecution case rather such improvement could create doubt in favour of the defence--­Prosecution, in circumstances, had failed to allege or prove motive against the accused---Accused was suffering rigors of trial by remaining in incarceration for the last about 14/15 years---Sentence of death awarded to the accused was altered to that of life imprisonment in circumstances.

Mehboob Ahmad and another v. Muhammad Khan alias Kalu and another 2003 SCMR 95 fol.

Malik Saeed Hasan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellant (in Criminal Appeal No.462 of 2000).

Q. M. Saleem, Senior Advocate Supreme Court, Syed Zafar Abbas Naqvi, Advocate' Supreme Court, M.A. Zaidi, Advocate-on-­Record and Akhtar Ali, Advocate-on-Record for Appellant (in Criminal Appeal No.463 of 2000).

Muhammad Zaman Bhatti, Advocate Supreme Court for Respondent (in both Cases).

Dates of hearing: 14th and 15th April, 2003.

2003 S C M R 1172

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

ALTAF HUSSAIN SHAH---Petitioner

Versus

PUNJAB SERVICE TRIBUNAL, LAHORE and others---Respondents

Civil Petition for Leave to Appeal No.22-L of 1999, decided on 9th May, 2002.

(On appcai from judgment of Punjab Service Tribunal dated 25-10-1998 passed in Appeal No. 1209 of 1997).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 4, 5 & 6---Constitution of Pakistan (1973), Art. 212(3)--­Dismissal from service---Allegation of misconduct---Contention of civil servant was that he was condemned unheard and that no regular enquiry was held---Service Tribunal dismissed appeal filed by civil servant--­Validity---Impugned judgment and record showed that proper procedure under Punjab Police (Efficiency and Discipline), Rules, 1975 had been observed and rules of natural justice had been strictly adhered to--­Maximum possible opportunity of defence had been provided to civil servant as he was heard both by appointing authority and appellate forum---No substantial question of law of public importance was made out---Supreme Court dismissed petition in ' circumstances.

Sheikh Salahud Din, Advocate-on-Record for Petitioner.

A.H. Maqsood, Advocate Supreme Court for Respondents.

2003 S C M R 1174

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

BOARD OF TRUSTEES through Chairman/Additional Secretary, Government of Pakistan, Islamabad and another---Appellants

Versus

JAMILA AKHTAR and another---Respondents

Civil Appeal No. 1499 of 1999, decided 18th March, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 23-2-1999 passed in W. P. No. 1419 of 1996).

(a) Registration Act (XVI of 1908)----

----Ss. 17 & 49---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether the High Court was justified in coming to the conclusion that the suit property had been validly transferred to the predecessor-in-interest of the respondents as admittedly document of sale had not been registered and the provisions of Ss. 17 & 49, Registration Act, 1908, had not yet been complied with.

(b) Abandoned Properties (Taking-over and Management) Act (XX of 1975)---

----Ss. 13 & 14--Properties left by East Pakistanis now Bangladeshis--­Properties forming part of pool---Classification---Such properties are classified into two categories---First category of such properties fall under S.13 and the second category under S.14 of the Abandoned Properties (Taking-over and Management) Act, 1975---Properties which did not involve any interest of a third person would become part of the pool of abandoned properties and the properties in which permanent interest of third person was created by the original allottee through sale, gift, exchange or any other manner before target date, subject to the necessary scrutiny would be treated as private and would not form part of the pool of abandoned properties---If transaction of sale in respect of abandoned property was completed before the target date, the legal status of such property under the provisions of Abandoned Properties (Taking ­over and Management) Act, 1975 would be that of not abandoned property and would not ipso facto form part of the pool and would be subject to scrutiny of the interest of a third person by Administrator under the provisions of S.14 of the Act.

(c) Abandoned Properties (Taking over and Management) Act (XX of 1975)---

----S. 14---Registration Act (XVI of 1908), Ss. 17 & 49---Abandoned property, interest in---Unregistered document---Effect---Abandoned properties situated in capital territory of Islamabad ---Disposal--­Procedure---Document purported to create rights and interest in immovable property of the value of more than one hundred rupees in normal circumstance, requires compulsory registration as the document of title without registration being of no consequence would not pass the title---Claim of ownership in abandoned property being subject to scrutiny under S.14 of Abandoned Properties (Taking-over and Management) Act, 1975, needs, determination on the basis of documents of title either registered or unregistered---If such documents are found sufficient to establish the right of ownership in the property, the claim of a person cannot be rejected merely on the ground that sale agreement is not registered.

(d) Registration Act (XVI of 1908)-----

----Ss. 17 & 49---Capital Development Authority Building Regulations, 1993---Registration of title document---Provisions of Ss. 17 & 49 of Registration Act, 1908---Applicability---Properties situated in capital territory of Islamabad---Agreement to sell non-registration of---Effect--­Properties situated in the capital territory of Islamabad was subject to the Capital Development Authority Building Regulations, 1993---Change in ownership of such properties could happen in the record of Capital Development Authority under the Regulations read with the Rules framed thereunder without execution of a registered or unregistered document and the transaction of sale---Purchase of such properties between the private parties could be effected on payment of transfer fee to the Authority without the compliance of Ss.17 & 49 of Registration Act, 1908---Registration of an agreement to sell of immovable property in the capital territory of Islamabad was not stricto senso needed and non-compliance of Ss,17 & 49 of Registration Act, 1908, did not affect the right of a person in the property.

(e) Abandoned Properties (Taking-over and Management) Act (XX of 1975)-----

----Ss. 13 & 14---Registration Act (XVI of 1908), Ss.17 & 49----Properties left by East Pakistanis now Bangladeshi---Properties forming part of pool---Right in abandoned property on the basis of unregistered agreement to sell---Investigation of claim under S.14 of Abandoned Properties (Taking-over and Management) Act, 1975---Disputed plot of land was situated in capital territory of Islamabad and was allotted to a person who left for Bangladesh after its creation---Respondents claimed to be owners of the plot on the basis of an unregistered agreement to sell executed by the allottee in their favour much before the cut off date when the plot was declared as abandoned property---Authorities conducted investigation of the claim of the respondents under S.14 of Abandoned Properties (Taking-over and Management) Act, 1975, and having found the claim genuine, transferred the same in favour of the respondents---Plea raised by Board of Trustees of Abandoned Properties was that the claim was admitted on the basis of unregistered agreement to sell, therefore, under "the provisions of Ss. 17 & 49 of Registration Act, 1908, no right could be created in the same---Validity---Finding given by the Authorities did not suffer from misreading or non-reading of evidence to justify the rejection of his claim by the Board and deprive the respondents from their legitimate right of ownership of the plot--­Authorities having determined the genuineness of the documents and the claim concluded the sale of the p. question by original allottee in favour of the respondents was established on record---Such finding of the Authorities remained unrebutted before the Board of Trustees and High Court having made a detailed scrutiny of all questions of law and facts rightly found that the verdict given by the Authorities was legal---Judgment passed by High Court was unexceptionable and did not call for any interference---Appeal was dismissed.

Sardar Muhammad Aslam and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Munir Piracha, Advocate Supreme Court and Ejaz Muhammad Advocate-on-Record for Respondent No. 1.

Respondent No.2 in person (absent).

Date of hearing: 18th March. 2002.

2003 S C M R 1183

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MUHAMMAD NAZIR and others---Petitioners

Versus

ALI MUHAMMAD through Legal Heirs and others--Respondents

Civil Petition for Leave to Appeal No. 1303-L of 1999, decided on 19th June, 2002.

(On appeal from order of the Lahore High Court, Lahore dated 26-5-1999 passed in Civil Revision No.580 of 1999).

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

----Art. 64---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Paternity of child ---Presumption--­Concurrent findings of fact by the Courts below---Mutation of inheritance was assailed on the ground that the defendant not being daughter of the deceased was not entitled to inherit the suit-land---Trial Court dismissed the suit and appeal before Appellate Court as well as revision before High Court were also dismissed---Validity---Both the Courts below had concurrently found that the deceased owner did not divorce the mother of the defendant who was born from the wedlock during the subsistence of the marriage, therefore, there was no occasion for disentitling the defendant to inherit the estate of the deceased---Law leans in favour of presumption of paternity rather than illegitimacy unless proved by strong evidence---Courts below including High Court had elaborately discussed the evidence on record and rightly concluded that the plaintiff had failed to substantiate the case pleaded by them---No misreading or non-reading of evidence or misconstruction of law having been found and no substantial question of general public importance having been raised leave to appeal was refused.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 19th June, 2002.

2003 S C M R 1185

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

HAFEEZ AHMAD---Petitioner

Versus

SAIN and others---Respondents

Civil Petition No. 1337-L of 1999, decided on 31st May, 2002.

(On appeal from the judgment/order dated 9-7-1999 passed by Lahore High Court, Lahore in C.R. No.2034 of 1991).

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

----Art. 59---Constitution of Pakistan (1973), Art. 185(3) Opinion of Handwriting Expert---Failure to send thumb-impression for comparison---Prejudice caused to parties---Plaintiff filed application in Trial Court for obtaining opinion of Handwriting Expert on Iqrarnama--­Trial Court without deciding the application dismissed the suit--­Judgment and decree passed by the Trial Court was maintained by Appellate Court as well as by High Court---Contention of the plaintiff was that failure to decide the application had caused injustice to him--­Validity---Non-sending of thumb-impression was not of any legal significance as the document could neither be treated as an agreement to sell nor a will on basis thereof the plaintiff, could not claim any declaration of ownership---Concurrent findings of fact recorded by the Trial Court affirmed by Appellate Court as well as by High Court were neither perverse nor suffering from any legal infirmity---Plaintiff failed to make out a case for interference in exercise of jurisdiction under Art. 185(3) of the Constitution---Leave to appeal was refused.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866 fol.

Mian Ghulam Rasool, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 31st May, 2002.

2003 S C M R 1188

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza, JJ

MUHAMMAD SHARIF---Petitioner

Versus

ABDUL HAKEEM---Respondent

Civil Petition for Leave to Appeal No. 1479-L of 1999, decided on 18th July, 2002.

(On appeal from the judgment dated 16-6-1999 of the Lahore High Court, Lahore in Civil Revision No. 1016 of 1995).

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

----S. 8---Transfer of Property Act (IV of 1882), S.54---Qanun-e-­Shahadat (10 of 1984), Arts. 117 & 120---Suit for possession of immovable property---Initial title, admission of---Plaintiff claimed to be the owner of suit property and sought recovery of possession of the same---Defendant admitted initial title of the plaintiff but denied delivery of possession of suit property on the ground that the plaintiff had sold the property in favour of third person---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit---Judgment and decree passed by the Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---When the initial title of plaintiff was admitted, sale in favour of the third person was not proved and the nature of possession of defendant was not clarified---Two Courts below had rightly granted the decree in favour of the plaintiff---Leave to appeal was refused.

Ch. Inayat Ullah, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 18th June, 2002.

2003 S C M R 1189

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mirza MUSHTAQ AHMAD---Petitioner

Versus

PROVINCE-OF PUNJAB and others---Respondents

Civil Petition No.502-L of 1999, decided on 4th June, 2002.

(On appeal from the judgment dated 5-3-1999 passed by Lahore High Court, Lahore in Writ Petition No.3641 of 1999).

Constitution of Pakistan (1973)-----

----Art. 204---Contempt of Court---Withdrawal of contempt notice- Supreme Court issued contempt notice to the Station House Officer of Police Station for not registration of F.I.R.---Record indicated that the complainant did not cooperate himself with the police for registration of F. I. R. ---Station House Officer of the Police Station had informed the Supreme Court that the F.I.R. had been registered and he also tendered unconditional apology,--Supreme Court declined to, proceed for the contempt of Court against the Station House Officer of Police Station--­Contempt notice was withdrawn.

Petitioner in person.

Muhammad Hanif Khatana, Additional Advocate-General for Respondents.

Date of hearing: 4th June, 2002.

2003 S C M R 1191

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

Malik MUHAMMAD NAWAZ --- Petitioner

Versus

MUNICIPAL COMMITTEE, PATTOKI and others---Respondents

Civil Petition for Leave to Appeal No.1097-L of 1999, decided, on 17th June, 2002.

(On appeal from judgment of Lahore High Court, Lahore dated 28-5-1999 passed in Writ Petition No.4128 of 1998).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court--­Discretionary relief, exercise of---Implementation of illegal and manipulated order---Cancellation of bid---Dummy bidder---Refund of security deposit--- Petitioner was the highest bidder and had deposited certain amount as security but instead of deposit of balance amount as required by the terms of the contract, the petitioner requested for cancellation of his bid and return of his security deposit.---Authorities declined to return the security amount and the amount was forfeited--­High Court in exercise of Constitutional jurisdiction declined to interfere with the orders of forfeiture of security---Plea raised by the petitioner was that he acted at the instance of the Authorities to attract higher bid in favour of the Municipal Committee---Validity---If the plea of the petitioner was accepted, his remedy might lie against the Authorities for reimbursement of the loss---If the petitioner joined the Authorities with unclean hand-the petitioner would not be entitled to the discretionary relief in the exercise of Constitutional' jurisdiction by High Court--­Petitioner having voluntarily deposited the security amount for his eligibility to take part in the .auction, he should thank himself for the consequences flowing from his act of falling back on his solemn commitment---Petitioner was not entitled to discretionary relief of the Court in getting an illegal and manipulated order implemented through writ, as the same would only tend to perpetuate a wrong and acting in aid of injustice---Supreme Court declined to interfere with the order passed by High Court in exercise of Constitutional Jurisdiction---Leave to appeal was refused.

Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Airport Support Services v. Airport Manager 1998 SCMR 2268; Begum Shams-un-Nisa v. Said Akbar Abbasi PLD 1982 SC 413 and Muhammad Baran v. Member (Settlement and Rehabilitation) PLD 1991 SC 691 ref.

Qadeer Ahmad Siddiqui, Advocate Supreme Court and Abul Asim Jafri, Advocate-on-Record for Petitioners

Ch. Khurshid Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 17th June, 2002.

2003 S C M R 1194

[Supreme Court of Pakistan]

Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

SARDAR BAKHSH---Petitioner

Versus

BIBI and others---Respondents

Civil Petition No. 875-L of 2002, decided on 18th April, 2002.

(On appeal from the judgment dated 4-2-2002 passed by the Lahore High Court, Lahore in F.A.O. No.96 of 1995).

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

----Art. 76---Constitution of Pakistan (1973), Art. 185(3)---Document, proof of---Secondary evidence---Original arbitration agreement was claimed to be lost---Without permitting respondent to adduce secondary evidence in proof of arbitration agreement, the Trial Court made the award rule of Court---High Court in earlier round of litigation between the parties, had observed that some positive evidence should have been led by the respondent as to the loss of the original arbitration agreement---Validity---High Court was justified in taking the view that on account of the dismissal of application for permission to lead secondary evidence, the respondent was prevented by the Trial Court from the compliance of earlier judgment of High Court---Trial Court was directed by the High Court to treat the application of the respondent as pending and to record the evidence of the parties thereon---High Court further directed the Trial Court to decide the issues framed on the basis of the existing evidence in case the loss of the original arbitration agreement was proved---Not necessary for the High Court to address the other submissions even if made by the petitioner because of the failure of the Trial Court to comply with the order of remand of the case by High Court---No substantial question of law of public importance was involved in the case so as to call for any interference with judgment passed by High Court---Leave to appeal was refused.

Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 ref.

Syed Muhammad Kaleem Ahmed Khurshid, Advocate Supreme court and Syed Abul Asim Jafri, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents

Date of hearing: 18th April, 2002.

2003 S C M R 1197

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ

ANWAR KAMAL---Petitioner

Versus

MUHAMMAD HUSSAIN through Legal Heirs and others---Respondents

Civil, Petition No. 1367-L of 1999, decided on 28th May, 2002.

(On appeal from the judgment/order dated 11-6-1999 passed by Lahore High Court, Lahore in R. S. A. No. 217 of 1981).

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

----O. XLI, R.19---Constitution of Pakistan (1973), Art. 185(3)--- Readmission of appeal dismissed for default---Appearance of counsel before another Bench---Proof---Non-filing of copies of order sheets from the other Bench---Application for restoration of appeal filed after about 7 months of the order of dismissal---Plea raised by the petitioner was that due to engagement of his counsel before other Benches, the High Court dismissed his appeal---Validity---Neither any details of the cases in which the counsel for the petitioner had appeared nor the certified copies of the order sheets form the Benches before which he appeared were appended in the application submitted under O.XLI, R. 19, C.P.C.--­Appeal was dismissed on 25-11-1998 whereas application for its readmission was filed after ,about 7 months---High Court had rightly dismissed the application for readmission of the appeal---Leave to appeal was refused.

Malik Abdul Wahid, Advocate Supreme Court and Abul Asim Jafri, Advocate-on-Record the Petitioner.

Nemo for Respondents.

Date of hearing: 28th May, 2002.

2003 S C M R 1199

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ALLAH DITTA and others---Petitioners

Versus

Mian MUHAMMDA AKRAM and others---Respondents

Civil Petition for Leave to Appeal No.3994/1 of 2001, decided on 30th April, 2002.

(On appeal from the judgment dated 1-9-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A. No. 15 of 1985).

Civil Procedure Code (V of 1908)---

----O.XXXII, Rr. 1 & 3---Constitution of Pakistan (1973), Art. 185(3)--- Suit against minor---Failure to appoint guardian ad litem---Defending the suit through father---Father of the minor was also one of the defendants who had given general power of attorney on his behalf as well as on behalf of his minor son---Appeal before the Appellate Court was dismissed on the statement of the attorney---Judgment and. decree passed by the Appellate Court were assailed by the minor before High Court in revisional jurisdiction which was dismissed---Contention of the, minor was that in the absence of appointment of guardian-ad-litem, the proceedings against him were ineffective---Validity---High Court had rightly dismissed the revision for the reason that after having owned the filing of appeal through the attorney, the minor could not challenge the authority of the attorney as the real father of the minor was his natural guardian and the memo. of appeal was not even signed by the minor himself---Supreme Court declined to interfere with the judgment and decree passed by the High Court in exercise of revisional jurisdiction--­Leave to appeal was refused.

Ghulam Nabi Bhatti, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Abdul Rasheed Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 30th April, 2002.

2003 S C M R 1202

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

ALLAH DITTA---Appellant

Versus

AHMED ALI SHAH and others---Respondents

Civil Appeal No. 1030 of 1996, decided on 4th April, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 20-7-1994 passed in C.R. No. 1751 of 1992).

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

----Ss. 10 & 11---Constitution of Pakistan (1973), Art. 185(3)--­Contention of the petitioner was that the respondent had nothing to do with the property under his occupation and no serious effort had been made to locate the plot purchased by the respondent from the Settlement Authorities---Petitioner further contended that according to the record maintained by the Municipal Committee for the year 1945-46, the plot was not even evacuee property and did not form part of compensation pool and could not be transferred to the respondent---Validity---Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioner.

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

---Art. 185---Appellate jurisdiction of Supreme Court---Concurrent findings of fact by the Courts below---Reappraisal of evidence-Scope--­Factual controversy had been extensively dealt with by the three Courts below and verdict was given, therefore, it was not possible for the Supreme Court to reopen such factual controversy through appraisal of evidence and upset the concurrent findings of fact given by three Courts below.

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

----O.I, R.10 & O. XXI, R. 58 & S.12(2)---Decree passed without impleading necessary party---Remedies against such decree---Party necessary to the proceedings filed objection petition against the decree at the time of execution---Validity---Necessary party on coming to know about the decree in addition to the filing of objection petition could also avail the appropriate remedy of moving the Trial Court for setting aside the decree and could also avail the remedy of appeal against the judgment and decree passed in the suit---If the decree was found to have been obtained through misrepresentation, such party had another option of filing an application under S.12(2), C.P.C.

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

----S. 47---Dispute of title---Determination---Powers of Executing Court--Scope---Executing Court cannot extend its jurisdiction to go behind the decree and question its correctness except where decree was silent as to which property was subject-matter of execution---Executing Court can look into the judgment in order to find out that property brought for the satisfaction of decree actually belongs to the judgment debtor but cannot entertain objection relating to the dispute of title and its determination which may change and alter the terms of decree.

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

----O. XXI, R.17---Defective execution application---Execution application, rejection of---Scope---Case in which it is not possible to execute the decree, the, Executing. Court is empowered to reject the execution and allow the defect to be remedied.

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

----O.XXI, R. 58---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 11---Execution of decree---Objection petition, dismissal of---Concurrent findings of fact by the Courts below---Objection raised to the execution of the decree was that the objector was in possession of different property and that without proper identification and demarcation of the two properties, the decree would not be executable against the property in his possession as such the objection had been properly scrutinized---All the Courts below had concurrently dismissed the objection petition---Validity---Supreme Court without taking exception to the concurrent finding of fact, upheld the order passed by High Court in revision petition---Appeal was dismissed.

Sardar Roshan Ali Sindu, Advocate Supreme Court and Rana M.A. Qadri, Advocate-on-Record (absent) for Appellant.

Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents No. 1.

Respondent No.2: Ex parte.

Date of hearing: 4th April, 2002.

2003 S C M R 1207

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

Malik LIAQUAT ALI---Petitioner

Versus

ZAFAR ALI and others---Respondents

Civil Petitions for Leave to Appeal Nos.2876-L and 2889-L of 2000, decided on 15th May, 2002.

(On appeal from the judgment dated 3-10-2000 of the Lahore High Court, Lahore, passed in C. R. No. 352 of 1989 and W. P. No. 1118 of 1989).

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

---Art. 75---Civil Procedure Code (V of 1908), S.9---Document--­Authenticity of document---Determination---Forum---Authenticity and genuineness of a document can always be tested by Civil Court who has got plenary jurisdiction in such regard.

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

----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Authenticity of document---Determination---Civil Court, jurisdiction of---Defendant claimed to be owner of the suit property on the basis of Iqrarnama executed in his favour by the occupant of the suit property---Authorities on the basis of Iqrarnama found the defendant owner of the suit property and regularized the unauthorized occupation of the defendant over the suit property---Plaintiff assailed Iqrarnama in declaratory suit before Civil Court, being bogus and forged---Suit was dismissed by the Trial Court but Appellate Court reversed the findings of the Trial Court and the suit was decreed---High Court in exercise of revisional jurisdiction, declined to interfere with the judgment and decree passed by the Appellate Court---Plea raised by the defendant was that the matter of regularization finalized by the Authorities could not be re-opened through declaratory suit---Validity---Before the Civil Court the parties were put at issue and the evidence was recorded---Confidence-inspiring evidence brought on record by the plaintiff had established that he took the disputed plot from the occupant---Son of the occupant entered the witness-box from the side of the plaintiff and admitted selling of the plot to the plaintiff by his father and had received the consideration amount--­Testimony of the son of the occupant was unrebutted---Possession of the plaintiff was proved and the defendant failed to produce any document in support of his claim---Appellate Court after scanning the entire evidence brought on record found that the plaintiff secured the plot from the occupant which entitled the illegal occupants for regularization according to the scheme of the Government---High Court had rightly maintained the judgment and decree passed by the Appellate Court--­Leave to appeal was refused.

S.M. Masud, Advocate Supreme Court for Petitioner.

S.M. Tayab, Senior Advocate Supreme Court for Respondents

Date of hearing: 15th May, 2002.

2003 S C M R 1210

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

PROVINCE OF SINDH---Appellant

Versus

RAHIM and others---Respondents

Civil Appeals Nos. 1719 to 1726 of 1997, decided on 25th September, 2001.

(On appeal from the judgment dated 15-1-1996 and 18-1-1996 passed by the High Court of Sindh in R. As. Nos.261, 262, 258, 264, 260, 263, 259 and 257 of 1994).

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

----O.XXIII, R. 1(2)---Withdrawal of suit with permission to file fresh suit---No-objection was raised by the Authorities---Respondents intended to withdraw their suit with permission to file the fresh one and the petitioner/Authorities had no objection to the same---Validity---Orders operating against the appellants as well as the Authorities were set aside and the plaint was allowed to be withdrawn with permission to file a fresh suit on the same cause of action.

H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and others PLD 1969 SC 65 ref.

Suleman Habibullah, Addl, A.-G., Sindh and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Appellant.

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

Date of hearing: 25th September, 2001.

2003 S C M R 1212

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

NIAZ KHAN and others---Petitioners

Versus

KISHWAR SULTANA---Respondent

Civil Petition No.485-L of 2002, decided on 23rd April, 2002.

(On appeal from the judgment dated 5-12-2001 passed by the Lahore High Court, Lahore in Civil Revision No.781 of 1999).

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

----S. 45---Constitution of Pakistan (1973), Art. 185(3)---Mutation of inheritance, assailing of---Limitation---Entitlement of co-owner to inherit---Relationship of plaintiff with deceased owner, determination of---Concurrent findings of fact by the Courts below---Plaintiff assailed the mutation of inheritance on the ground that she was the real daughter of the deceased owner---Defendants denied the relationship and the suit was dismissed by the Trial Court on the point of limitation---Appellate Court allowed the appeal and the suit was decreed---High Court in exercise of revisional jurisdiction declined to interfere with the judgment and decree passed by Appellate Court---Validity---All the Courts below recorded concurrent findings of fact that the plaintiff was real daughter of the deceased and was entitled to inherit the property of her father--­Appellate Court as well as High Court had rightly recorded the findings of fact that the suit of plaintiff being that of a co-owner of land was within time---Findings of fact recorded by the Courts below did not suffer from any legal infirmity---No substantial question of law of importance was involved in the case---Leave to appeal was refused.

A.G. Tariq Chaudri, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 23rd April, 2002.

2003 S C M R 1214

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Hamid Ali Mirza, JJ

PROVINCE OF PUNJAB through Collector and others---Petitioners

Versus

AHMAD---Respondent

Civil Petition No. 1953-L of 1999, decided on 20th July, 2001.

(On appeal from the judgment dated 7-7-1999 passed by Lahore High Court, Lahore in C.R. No. 237 of 1986).

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

----Ss. 42 & 54---Constitution of Pakistan (1973), Art. 185(3)---Title over suit-land---Concurrent findings of fact by the Courts below--­Failure to demarcate the land- Plaintiff claimed to be the owner of the land over which 75 trees were standing---Trial Court dismissed the suit but the Appellate Court allowed the appeal and decreed the suit---High Court in exercise of revisional jurisdiction, maintained the judgment and decree passed by the Appellate Court---Contention of the defendant was that without demarcation, the suit could not be decreed---Validity---All the three Courts had given concurrent finding of fact that plaintiff was owner of the land over which 75 trees existed---Defendant failed to bring on record any material to show that the suit-land was owned by him--­Mere allegation that the trees were planted by Forest Department would not by itself confer any title over the land in dispute in favour of the defendant, so also in respect of 75 trees over it when the fact that the trees were planted by the defendant was denied by the plaintiff--­Concurrent findings of fact by all the Courts with regard to the ownership of the suit-land were not interfered with by Supreme Court--­Leave to appeal was refused.

Abdul Maajid Sheikh, Advocate Supreme Court for Petitioners.

Malik Noor Muhammad Awan Advocate Supreme Court and Tanvir Ahmed Khan Advocate-on-Record for Respondent.

Date of hearing : 20th July 2001.

2003 S C M R 1216

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MUHAMMAD SIDDIQUE---Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondents

Civil Petition No.780/L and Civil Miscellaneous Application No.231/L of 2002, decided on 13th March, 2002.

(On appeal from judgment, dated 14-1-2002 passed by the Lahore High Court, Lahore in Writ Petition No. 1126 of 1984).

West Pakistan Board of Revenue Act (XI of 1957)-----

----S. 7---West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S.15---Constitution of Pakistan (1973), Arts. 199 & 185(3)--­ Consolidation proceedings---Clerical/typographical mistake, correction of ---Revisional jurisdiction of Board of Revenue---Compromise was arrived between the parties in consolidation proceedings and the same was accepted by the Board of Revenue---Petitioner approached Board of Revenue through revision petition against order of Additional Commissioner (Consolidation) whereby certain clerical mistakes in his earlier order were made on the basis of compromise arrived at between the parties---Board of Revenue- found that the Additional Commissioner (Consolidation) was right in allowing clerical/typographical errors occurring in his order which was passed on the basis of compromise between the parties---Such order of Board of Revenue was assailed before High Court in Constitutional petition---High Court after considering relevant material found that correction was rightly allowed by the revenue hierarchy as the same was a result of compromise arrived at between the parties and the order passed , by the Additional Commissioner (Consolidation) as well as Board of Revenue were within the legal parameters and within their domain---Scope of High Court pertaining to consolidation matter being very limited and with sound and cogent reasons, the High Court refused to interfere in the matter--­Judgment passed by the High Court was not open to exception---Leave to appeal was refused.

Ahsan Bhone, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th March, 2002.

2003 S C M R 1218

[Supreme Court of Pakistan]

Present : Javed Iqbal and Tanvir Ahmed Khan, JJ

MUHAMMAD RAFIQUE and another---Petitioners

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Petition for Leave to Appeal No.3160/L of 2000, decided on 20th May, 2002.

(On appeal from the judgment, dated 8-12-2000 of the Lahore High Court, Lahore, passed in Civil Revision No. 1531-D of 1985).

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

----Ss. 12, 27(b) & 42---Constitution of Pakistan (1973), Art.185(3)-----Bona fide purchaser for value without notice---Proof---Sale receipt whether a proof of agreement---Specific performance of agreement to sell was sought by the plaintiff---Defendants resisted the suit on the principle that they were bona fide purchasers for value without notice of the prior agreement in favour of the plaintiff---Defendants relied upon a sale receipt regarding payment of consideration amount in their favour by the owner of the suit property, allegedly issued before the agreement to sell--- Defendants had not referred to the agreement in their favour which was executed subsequently on the basis of the sale receipt---On the contrary the execution of agreement by the plaintiff's side had been proved through the testimony of scribe and marginal witness---Owner of the suit property, in his written statement had not mentioned execution of the agreement in favour of the defendants and appearing as witness had repudiated the alleged submission of written statement by him---Sale receipt in favour of the defendants was a forged and fabricated document as the same was alleged to be written by special attorney of the owner and the owner had denied execution of any special power of attorney in his favour--- Findings of both the Courts below on the issue had been rightly maintained by the High Court---Defendants failed to point out any legal infirmity in the judgment of High Court warranting interference by Supreme Court---Leave to appeal was refused.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Kh. Tariq Masood, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 20th May, 2002.

2003 S C M R 1221

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHARIF through Legal Heirs and 4 others---Petitioners

Versus

SULTAN HAMAYUN and others---Respondents

Civil Petition No. 1848-L of 1999, decided on 11th March, 2003.

(For leave to appeal from judgment, dated 12-10-1999 of the Lahore High Court, Lahore, passed in L.P. A. No. 256 of 1969).

(a) West Pakistan Border Area Regulation, 1959 [MLR 9]-----

----Para. 10---West Pakistan Rehabilitation and Settlement Scheme 1956. para. 55-A---Constitution of Pakistan (1973), Art.185(3)---Border Area Committee, after appreciating and evaluating the evidence of parties, had come to the conclusion that the petitioner, who was a local, had obtained the allotment of the property fraudulently under a pseudo name by claiming himself to be a displaced person---Findings of fact recorded by the Committee were upheld by High Court both under Constitutional jurisdiction and in letters patent appeal---Petitioner had failed to persuade that the findings of fact recorded by the Border Area Committee and the High Court could not possibly have been recorded on the basis of the evidence of the parties---Supreme Court, in the absence any exceptional circumstances, ordinarily would not substitute findings of fact recorded by the High Court on the basis of material on record--­Petition for leave to appeal as dismissed.

(b) West Pakistan Border Area Regulation, 1959 [MLR 9]-----

----Para. 10---West Pakistan Rehabilitation and Settlement Scheme, 1956, Para, 55-A---Scrutiny of allotment of evacuee land to the petitioner, by the Border Area Committee under para.10 of the Regulation on a complaint that fraud had been played in obtaining the allotment by the petitioner---Scope---Expression "scrutiny"--­Connotation---Border Area Committee, for the first time, on the said complaint, scrutinized the allotment of the evacuee property in dispute to the petitioner as required by para. 10 of the Regulation and had found that the petitioner, who was a local, had obtained the allotment of the land fraudulently under a pseudo name by claiming himself as displaced person----Allotment of the petitioner was cancelled by the Border Area Committee which order was upheld by the High Court up to Letters Patent Appeal---Confirmation of said allotment of the land to the petitioner having been made by the Border Area Committee, as a matter of routine, acting on the administrative side, there was no occasion to conduct any formal scrutiny or inquiry at that time, order of cancellation of allotment of the petitioner by the Committee after scrutiny and inquiry, in circumstances, could not thus be said to have been passed by way of review---Right of a party to claim a review of final judgment or order of a Court, judicial or a quasi-judicial Tribunal, in a substantive matter, was not available in the absence of a provision in the relevant statute---Cases of fraud, mala fides and defect of jurisdiction generally stood on a different footing as fraud vitiated the most solemn proceedings---Jurisdiction of the Committee to scrutinize the allotment of evacuee property within a border area under para. 10 of the Regulation was not affected by any other law---Limitation and inhibition contained in the West Pakistan Rehabilitation Settlement Scheme, 1956 could not control the provisions of the West Pakistan Border Area Regulation. 1959---Committee was empowered to cancel an allotment of evacuee property in a border area which had been made by the Settlement and Rehabilitation Authorities---Border Area Committee was not a Court and the provisions of Qanun-e-Shahadat, 1984 (Evidence Act, 1872) and Civil Procedure Code, 1908 other than those mentioned in para. 14 of the Regulation did not apply to the proceedings before the Committee---No misreading or non-reading, of any material evidence, by the Committee or the High Court had been pointed out---Conclusions of fact arrived at by the Border Area Committee which were concurred by the High Court thus were unexceptionable and Supreme Court declined to interfere in circumstances.

Sardar Muhammad Muqeem Khoso v President of Pakistan PLD 1994 SC 412; Hussain Bakhsh v. Settlement Commissioner. Rawalpindi and others PLD 1970 SC 1; Government of .Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 1472; National Bank of Pakistan v. Islamic Republic of Pakistan 1992 SCMR 1705; S. Sarwat Haider and another v. Central Board of Revenue and others 1982 SCMR 899; S.A. Rizvi v. Pakistan Atomic Energy Commission 1986 SCMR 965; Muzaffar Ali v. Muhammad Shafi PLD Zaitoon Begum v. Ghulam Shabbir, Settlement Commissioner, Multan and another 1968 SCMR 611; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture and others 1993 SCMR 618; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD1975 SC 331; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Muhammad Latif v. Border Area Committee PLD 1978 SC 270 and Province of Punjab and others v. Member (Colonies), Board of Revenue, Punjab and others 1986 SCMR 529 ref.

(c) Review-----

---- Right of a party to claim a review of final judgment or order of a Court, judicial or a quasi-judicial Tribunal, in a substantive matter, was not available in the absence of a y provision in the relevant statute---Cases of fraud, mala fides and defect of jurisdiction generally stood on a different footing as fraud vitiated the most solemn proceedings.

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

----Arts.185(3) & 199---Jurisdiction of Supreme Court and High Court under Arts. 185(3) & 199 of the Constitution respectively---Scope--­Superior Court may decline to intervene, in the exercise of discretionary and equitable jurisdiction under Art. 185(3) or 199 of the Constitution, where grant of relief would amount to retention of ill-gotten gains or would otherwise lead to injustice.

Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Raunaq Ali v. The Chief Settlement Commissioner PLD 1973 SC 236 and Sharif Ahmad Hashmi v. Chairman, Screening Committee 1978 SCMR 367 ref.

Muhammad Zainul Abidian, Advocate Supreme Court for Petitioners.

Ch. Khurshid Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 11th March, 2003.

2003 S C M R 1230

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

HASHMAT ULLAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions for Leave to Appeal Nos.507/L and 564/L, of 2002, decided on 21st April, 2003.

(On appeal from the judgment, dated 15-1-2002 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 11 of 1997 and 454 of 1999 alongwith Murder Reference No.44 of 1997).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)---Appraisal of evidence---Broad daylight occurrence of which F.I.R. was recorded with promptitude describing all the details leading to the murder---Both the accused had absconded after the occurrence and were declared proclaimed offenders---Both the accused, were apprehended after a long period of time after the occurrence; one of them led to the recovery of incriminating gun alongwith live cartridges while the other was arrested with incriminating weapon ---Post-mortem of the deceased showed that he sustained six injuries having different number of wounds---Ocular account had been established in its material particulars---Both the eye­witnesses had successfully established their presence at the place of occurrence, one witness though a brother of the deceased but his testimony could not be discarded simply because of his relationship if it otherwise inspired confidence---Said witness had specifically attributed the injuries caused to the deceased by the accused and had established his presence at the spot---Defence side in spite of lengthy cross-examination had failed to shatter his testimony---Other eye-witness was a shopkeeper of the area of incident and was totally an independent witness and had no animus or malice whatsoever to implicate the accused persons and the defence side had failed to belie the confidence-inspiring statement of the said witness---Ocular version was completely in line with the medical evidence---Expecting from the witnesses that they would depose the ocular version with mathematical precision in such traumatic condition was too much---Accused had come to the spot on a motorcycle duly armed with lethal weapons with the intention to kill the deceased and did not take much time in accomplishing the fatal brutal act in broad daylight in presence of witnesses---Accused who were 39 years and 24 years of age at the time of commission of offence were not that much immature that they would easily succumb to the influence of a person who was not even present there---Accused being grown up persons having independent mind and thinking, caused the fatal act on their own with the intention to do away with the life of the deceased would not be entitled to lesser punishment---Plea that the motive had not been proved would not by itself be of any assistance to the accused---Absence of motive or non ­proof of the same would not bring the case of the convicts for lesser punishment, role of motive was decimal in a cold-blooded murder which had been established through unimpeachable evidence brought on record and which had been corroborated by the medical evidence---Conduct demonstrated by the accused after the occurrence as well as during trial was desperate in nature and they did not deserve any leniency in the award of punishment---Petition for leave to appeal against the conviction and sentence of the accused persons was dismissed by the Supreme Court in circumstances.

Muhammad Ashraf v. The State 2001 SCMR 73; Muhammad Aslam and others v. The State and others 2001 SCMR 223 and Waris Khan v. The State 2001 SCMR 387 ref.

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

----Ss. 302(b) & 34---Appraisal of evidence---Motive---Disbelieved or alleged but not proved---Effect---Plea that the motive had not been proved would not by itself be of any assistance to the accused---Absence of motive or non-proof of the same would not bring the case of the convicts for lesser punishment, role of motive was decimal in a cold­ blooded murder which had been established through unimpeachable evidence brought on record and which had been corroborated by the medical evidence.

Muhammad Ashraf v. The State 2001 SCMR 73; Muhammad Aslam and others v. The State and others 2001 SCMR 223 and Waris Khan v. The State 2001 SCMR 387 ref.

Sh. Naveed Shehryar, Advocate Supreme Court for Petitioner (in Cr.P. No.507/L of 2002).

Raja Muhammad Anwar, Senior Advocate Supreme Court, Raja Muhammad Arif, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner (in Cr.P. No. 564/1, of 2002).

Rab Nawaz Niazi, Advocate Supreme Court for the Complainant.

Date of hearing; 31st January, 2003.

2003 S C M R 1237

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD HANIF---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 195-L of 2002, decided on 2nd January, 2003.

(On appeal from the judgment, dated 17-1-2002 of the Lahore High Court, Lahore passed in Cr.A. No.513 of 1997).

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

----Ss.9, 21 & 22---Criminal. Procedure Code (V of 1898), S.537---When the prosecution had established the factum of recovery beyond shadow of doubt and proved the accusation to the hilt, and no other officer of higher rank than A.S.-I., who was incharge of the Police Station, was available, raid conducted and investigation made by the said police officer in violation of the provisions as contained in Ss.21 & 22 of the Control of Narcotic Substances Ordinance, 1997, would not vitiate the trial and at the most such an irregularity could be cured under S.537, Cr.P.C. as it had caused no prejudice to the accused.

State v. Bashir PLD 1997 SC 408 and Shivbhat v. Emperor AIR 1928 Bom. 162 ref.

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

----Ss.29 & 9---Criminal Procedure Code (V of 1898), S.103---Raid was conducted as a result of tip-off to the Assistant Sub-Inspector of Police (the complainant) when he was patrolling and it was not possible for him to have completed the time consuming formalities at the cost of disappearance of the accused---Contention concerning violation of S.103, Cr.P.C. was fallacious in the light of S.29 of the ordinance --- Provision of S.103, Cr.P.C had been excluded in the light of S.29 of the Control of Narcotic Substances Ordinance, 1997---Reluctance of general public to become witness to such-like cases was a judicially recognized fact and there was no option left but to consider the statement of an official witness as no legal bar had been imposed in that regard---Police official were equally good witnesses and could be relied upon if their testimony ­remained unshattered during cross-examination.

Hayat Bibi v. Muhammad Khan 1976 SCMR 128; Yaqoob Shah v The State PLD 1976 SC 53; Muhammad Naeem v. State 1992 SCMR 1617 and Muhammad v. State PLD 1981 SC 635 ref.

Ch. Hasan-ul-Haq Bhalli, Advocate Supreme Court and Ch Mehdi Khan Mehtab Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing 2nd January 2003.

2003 S C M R 1241

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

SUPERINTENDING ENGINEER, HIGHWAYS CIRCLE, MULTAN and others---Petitioners

Versus

MUHAMMAD KHURHSID and others---Respondents

Civil Petition No.2234-L of 2001, decided on 10th April, 2003.

(On appeal from the judgment, dated 18-4-2001 of the Lahore High Court, Multan Bench, passed in W.P. No.6727 of 2000).

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

----Arts. 212(2) & 199---Service Tribunals Act (LXX of 1973), S.6---Constitutional petition---Grant of a Grade (B-16) to civil servant with retrospective effect does not fall within the jurisdictional domain of High Court and Service Tribunal has the exclusive jurisdiction to dilate upon the controversy and decide the, same and it squarely falls within the ambit of its jurisdiction---Principles.

There is no doubt that grant of a grade, to a civil servant relates to the terms and conditions of service.

The provisions as contained in Article 212(2) of the Constitution and section- 6 of the Service Tribunals Act, 1973 make it abundantly clear that after the constitution of Service Tribunal the jurisdiction of all other Courts regarding service matters has been ousted. Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of Constitutional petition and aggrieved party must approach specific authority, for the redressal of his grievances. Even otherwise where a particular statute provides a self-contained machinery for the determination 4 questions arising under the Act as where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunal.

Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, the petition in the circumstances would not lie.

The question of grant of B-16 with retrospective effect does not fall within the jurisdictional domain of High Court and Service Tribunal has the exclusive jurisdiction to dilate upon the controversy and decide the same and it squarely falls within its jurisdictional domain.

1989 CLC 1938; PLD 1989 Kar. 157; PLD 1990 Quetta 41; 1987 CLC 1229; PLD 1988 Pesh. 9; PLD 1967 Dacca 6 and PLD 1967 Dacca 708 ref.

(b) Jurisdiction, ouster of---

----Principles to be kept in view enumerated:

Following are the principles regarding the ouster of jurisdiction to be kept in view by the Court:

(1) If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to, oust jurisdiction of the Courts is that---

(a) the authority should have been constituted as required by the ,statute;

(b) the person proceeded against should be subject to the jurisdiction of the authority;

(c) the ground on which action is taken should be within the grounds stated by the statute;

(d) the order made should be such as could have been made under the statute.

(2) These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority.

(3) If an Appellate Authority is provided by the statute the omission or irregularity alleged will be a matter for the Authority, and not for a Court of law.

Zafar-ul-Ahsan v. Republic of Pakistan PLD 1960 SC 113 and Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 fol.

Aziz Ahmad Chughtai, Advocate Supreme Court Rao Muhammad Yusuf, Advocate-on-Record (absent) for Petitioners.

M. Anwar Bhaur, Advocate Supreme Court and M. Ozair Chughati, Advocate-on-Record for Respondents.

Date of hearing: 10th April, 2003.

2003 S C M R 1246

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

MUHAMMAD NAZIR and others---Petitioners

Versus

MUHAMMAD YAQUB and others---Respondents

Civil Petitions Nos.542-L, 598-L and 599-L of 2000, decided on 20th February 2003.

(On appeal from the judgment/order, dated 1-11-1999 passed by Lahore High Court, Lahore in C.Rs. Nos.27, 28, 54 of 1998).

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

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Revision--­Limitation---Contention was that the revision petitions were filed beyond the period of limitation but the High Court, without making proper calculation, treated the same within time---Validity---Judgment of the High Court showed that the findings had been recorded after making calculations in respect of the period spent in obtaining certified copies etc. and all the three revisions were treated to be within time---Findings of the High Court were based on appreciation of relevant facts, relating to filing of applications and getting its certified copies, therefore, High Court was right in holding that the revision petitions had been filed within time---Supreme Court declined interference.

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

----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Revision--­Authority to file revision---Scope---Contention was that revisions were filed by the person who was not properly authorized and, therefore, revisions were not maintainable---Validity---Such objection was raised before the High Court and was overruled for the reason that though the power of attorney was executed in the favour of said person at the time when the matter was pending in appeal but the same pertained to the present litigation between the parties which culminated into revisional judgment of the High Court---Opposing party had never objected that the said person was not duly authorized to participate in the proceedings--­Legal presumption, therefore, would be that on the basis of said power­ of-attorney which was executed in his favour, mentioning therein that he was authorized to appear up to the Court of District Judge, could also be considered as a document on the basis of which he was authorized to file revisions arising out of the litigation between the parties---Supreme Court declined interference.

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

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Revision--­Impleading of parties ---Scope---Impleadment of seven persons in one revision, who were already party in both the suits, having not caused prejudice to the petitioners, Supreme Court declined interference on this score.

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

----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Revision Scope---Disturbing the finding of Trial Court on the question of fact by the Court of revision ---Validity---Revisional Court generally could not interfere with finding of fact recorded by the Appellate Court unless same was based on misreading of evidence or omission to consider material evidence or when such finding was contrary to evidence---If the revisional Court exercising powers under S.115, C. P. C., on the basis of available record, formed the opinion that findings of the Trial Court were based on non-reading , of evidence then it had jurisdiction to interfere in the findings recorded by the subordinate Courts.

Muhammad Sain v. Muhammad Din 1996 SCMR 1918 fol.

Muhammad Akram Khawaja, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioners (in all Cases).

Nemo for Respondents.

Date of hearing: 20th February, 2003.

2003 S C M R 1250

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

NAVEED RAUF---Petitioner

Versus

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

Civil Petition No. 1575-L of 1999. decided on 14th April, 2003.

(On appeal from the order, dated 8-9-1999 of the Lahore High Court; Lahore, passed in W. P. No. 16423 of 1999).

Calendar of Board of Intermediate and Secondary Education Lahore-----

----Chap. VI, Regln. 6.8(IV)---Constitution of Pakistan (1973), Art. 185(3)---Educational institution ---Examinee was charge-sheeted on the ground that he managed to increase his marks in two papers and was asked to explain as to why action under Regln. No.6.8(IV) of the Calendar be not taken against him ---Examinee contested the charge-sheet by filing a reply and by personally explaining his case before the Disciplinary Committee---Disciplinary Committee found the allegation to be correct and while annulling the result of the examinee also disqualified him for further two examinations ---Examinee appealed against the decision of the Disciplinary Committee but the. Appeal Committee and High Court in its Constitutional jurisdiction upheld the decision of the Disciplinary Committee---Points raised before the Appeal Committee by the examinee were neither dilated upon nor decided and the Appeal Committee had acted quite arbitrarily inasmuch` as it did not care to go through the record of the case and the Appeal Committee failed to apply its conscious mind to the facts of the case, evidence gathered and instead toed the line ill-founded and unscrupulously drawn by the Disciplinary Committee and had adopted the same reasoning and subscribed thereto mechanically ---Validity---Appeal Committee had ignored the core issue as to how the alleged tampering was facilitated or connived by the examinee having no access to the Secrecy Branch; Appeal Committee failed to examine as to whether sufficient incriminating material was available which could justify the imposition of penalty; Appeal Committee had not adverted to the question as to whether the examinee warms in fact a beneficiary because admittedly the marks got so increased by alleged tampering, were excluded in the mark sheet and final result; Appeal Committee had not seen as to how the provisions of Regln. 6.8(IV) of Chap. VI of the Calendar were made applicable and question of involvement of the examinee had been examined in a casual and cursory manner by the revisional forum which was not desirable---Judicial consensus though was that there should be no interference in such domestic Tribunals/Committees in absence of

exceptional circumstances but that would not mean that such matters should be decided in an arbitrary and whimsical manner---Orders of the Appeal Committee as well as revisional forum being in violation of the principles as laid down in the Supreme Court judgment in University of Dacca v. Zakir Ahmad PLD 1965 SC 90---Supreme Court accepted the petition and converted the same into appeal and set aside the orders passed by the Appeal Committee and Revisional Committee being without lawful authority with the direction that the appeal preferred by the examinee shall be treated as pending and decided by the Appeal Committee afresh affording proper opportunity of hearing to the examinee by means of a speaking order preferably within a period of two months.

University of Dacca v. Zahir Ahmad PLD 1965 SC 90 fol.

Board of Intermediate and Secondary Education v. Saima Azad 1996 SCMR 676; Masood Pervaiz v. The Disciplinary Committee, University of the Punjab, Lahore 1982 SCMR 1084; Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore 1977 SCMR 213; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Abdus Saboor v. Karachi University PLD 1966 SC 536; Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore PLD 1971 SC 838; Federation of Pakistan v. Sardar Ali PLD 1959 SC (Pak.) 25; Muhammad Bashir v. University of Punjab PLD 1967 Lah. 1204; Abdul Majid v. Disciplinary Committee of the University of the Punjab PLD 1970 Lah. 416; University of Ceylon v. Fernando (1960) 1 AER 631; Board of Secondary Education v. Rice 1911 AC 179; Local Board v. Arlidge 1915 AC 120; Errington v. Minister of Health (1935) 1 KB 249; General Council of Medical Education v. Spakman (1943) 2 AER 337; Akhtar Ali v. University of Punjab 1979 SCMR 549; Quadri Brothers v. Sindh Employees and others PLD 1977 Kar. 112; M. Mahadevan v. K. Anandrajan 1974 Law Notes 483 (PC) ref.

Ch. Khurshid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Sh. Maqbool Ahmad, Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record for Respondents.

Date of hearing: 24th February, 2003.

2003 S C M R 1256

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rahman Ramday, JJ

NOOR AHMED through Legal Heirs---Petitioner

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Petition for Leave to Appeal No.244-L of 2000, decided on 17th March, 2003.

(On appeal from the order, dated 18-11-1999 passed by the Lahore High Court, Lahore in R.S.A. No. 11 of 1976).

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

----O. XLII, R.2---Appeal before the High Court against the judgment and decree passed by the First Appellate Court was not accompanied by the certified copy of the judgment of the Court of first instance as required by O.XLII, R.2, C.P.C.---Appellants submitted an application praying that the certified copy would be submitted "as soon as available" and the filing of certified copy of the judgment and decree of the Trial Court be dispensed with "for the time being"---Said application accompanied the memorandum of appeal filed in the High Court and the High Court passed no order on the said application and thus the filing of a certified copy of the judgment of the Court of first instance alongwith the memorandum of appeal was not dispensed with---Appellants, however, took no steps to seek an order on the said application for more than 13 years nor did they take any steps during all these long years to place the requisite copy of the judgment of Trial Court on record--­Respondents after 13 years of filing of the regular second appeal in question raised a preliminary objection regarding the maintainability of the said appeal, on account of non-compliance of the mandatory requirements of O.XLII, R.2, C.P.C.---Appellants, however, complied with the mandatory requirement of law after a period of 14 years of the filing of the appeal and after five months of raising objection by the respondent---High Court had passed no order before or after the prescribed period of limitation allowing the filing of the copy of judgment in question and dismissed the appeal mainly on the ground that the appeal was barred by limitation---Validity---Case of the appellants being one of gross negligence in filing and prosecution of their appeal before the High Court, Supreme Court declined, to grant leave to appeal to the appellants as they were not worthy of any sympathy or. leniency--­High Court had rightly exercised its discretion against the appellants to which no exception could be taken---Petition for leave to appeal was dismissed.

Muhammad Iqbal and others v. Khan Muhammad. and others PLD 1999 SC 35 distinguished.

Jumma and another v. Manzoor 1988 SCMR 1958 applied.

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

----O.XLII, R.2---Filing of a copy of the judgment of the Court of first instance with a regular second appeal was a mandatory requirement of law in terms of O.XLII, R.2, C.P.C.---Dispensing with the compliance of said mandatory requirement was only an exception and should never be treated as a mechanical or an automatic result of the mere filing of an application seeking exemption from satisfaction of such a legal requirement---Courts of law should, therefore, never treat such an application as a routine affair---Such a request must always receive a judicial consideration from the Court on the basis of the reason's offered therefor and the same must be decided, as early as possible, after proper application of mind and after due appreciation of all grounds justifying a deviation from the normal and commanded course of law---Decision on such an application, when it was filed, should not be delayed as such a delay could lead to unnecessary legal complications.

Ch. Khurshid Ahmad, Advocate Supreme Court for Petitioners.

Shehzad Shaukat, Advocate Supreme Court with Mahmood ul Islam, Advocate-on-Record for Respondents.

Date. of hearing: 17th March, 2003.

2003 S C M R 1261

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

AMIR BIBI through Legal Heirs---Petitioner

Versus

MUHAMMAD KHURSHID and others---Respondents

Civil Petition No. 123-L of 2001, decided on 27th March, 2003.

(On appeal from the judgment, dated 2-11-2000 of the Lahore High Court, Multan Bench, passed in R.F.A. No.28 of 1998).

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

----O. VIII, R.4 & O.XII, R.6---Decreeing the suit by the Court on the basis of admission irrespective of the fact whether such admission was categoric, specific or otherwise---Scope---Court, in view of O.XII, R.6, C.P.C. was competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power was not unfettered and the admission on the basis whereof a decree was sought must be specific, clear, unambiguous, categoric and definite---Court was bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the Court to accept or reject such application---Entire suit, in the present case, could not have been decreed as the claim of plaintiffs had been controverted on various legal and factual grounds which could only be decided on the basis of evidence and not on mere admission.

East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 and Naseer Ahmad v. Asghar Ali 1992 SCMR 2300 ref.

Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Ms. Salma Malik, A.A.G., Punjab. Ihsan-ul-Haq Chaudhry, Advocate Supreme Court, Malik Noor Muhammad Awan, Advocate Supreme Court, Rao Muhammad Yusuf, Advocate-on-Record and Ch. Talib Hussain, Advocate-on-Record for Respondents.

Date of hearing: 27th March, 2003.

2003 S C M R 1264

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

EJAZ AHMED WARRAICH---Petitioner

Versus

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

Civil Petition No.2019-L of 2000, decided on 28th March, 2003.

(On appeal from the judgment, dated 5-6-2000 of the Federal Service Tribunal, Lahore, passed in Appeal No.952(L) of 1999).

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

----S.2-A---Constitution of Pakistan (1973), Art.212(3)---Interpretation, scope and applicability of S.2-A, Service Tribunals Act, 1973--­Contention of the petitioner was that cashier of a Nationalised Bank was a "civil servant" under S.2-A and dismissal of his appeal by the Service Tribunal for want of jurisdiction was not legal---Validity---All such employees were amenable to the jurisdiction of Service Tribunal being civil servants which status had been conferred upon them by virtue of S.2-A, Service Tribunals Act, 1973 for the limited purpose i.e. approaching the Service Tribunal for the redressal of their grievance concerning terms and conditions of their service irrespective of Service Rules and Regulations applicable in their cases and it hardly mattered whether being a cashier of the Bank, his services were regulated by the Wage Commission Award or otherwise---Principles---Supreme Court converted the petition for leave to appeal into appeal and remanded the case to the Service Tribunal for decision of the same afresh after affording opportunity of hearing to all concerned.

Contention of the petitioner civil servant in the present case was that section 2-A of the Service Tribunals Act, 1973 had been misconstrued and misinterpreted which resulted in miscarriage of justice as the exceptions contained in the definition of "civil servant" in the Civil Servants Act, 1973 and the Service Tribunals Act, 1973 could be made applicable to such categories of persons who shall be deemed to be civil servants' under section 2-A for the purposes of the Service Tribunals Act, 1973. It was also urged that the petitioner being Cashier performing his duties in the Nationalized Bank wascivil servant' and could have invoked the jurisdiction of the Federal Service Tribunal for redressal of his grievance.

The provisions as contained in section 2-A of the Service Tribunals Act, 1973 have been misconstrued and misinterpreted by the Service Tribunal in the present case. All such employees are amenable to the jurisdiction of Service Tribunal being "civil servant" which status has been conferred upon them by virtue of section 2-A for the limited purpose i.e. approaching the Service Tribunal for the redressal of their grievance concerning terms and conditions of their service irrespective of the Service Rules and Regulations applicable in their cases. It hardly matters as to whether being a cashier his services were regulated by the Wage Commission Award or otherwise.

The service under any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest has been declared to be service of Pakistan. Every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil. Service for the purpose of this Act i.e. the Service Tribunals Act, 1973. It is not necessary for an employee working in any of the organizations covered by section 2-A that he should also come within the ambit of definition of the "civil servant" given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporations etc. mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved.

As regards the employees, employed on contract basis or if they were workmen excluded by the definition of "civil servants" given in section 2(1)(b) of the Act of 1973, it has been since held that the latter definition is not applicable to the employees covered by the newly enacted section 2-A. As a corollary, it must follow that the exceptions mentioned in clause (b) of subsection (1) of section 2 of the Act of 1973 will not be attracted to such cases.

Section 2-A which was inserted in the Service Tribunals Act, 1973, by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the Service Tribunal. Section 2-A while providing that the service under any Authority, Corporation, Body or Organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such Corporation or Organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. Such were covered by the provisions of section 2-A for the purposes of availing remedy before the Service Tribunal, The fact that they were employed in the organization/Corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A in the Service Tribunals Act, 1973.

The petition was converted into appeal and accepted and Service Tribunal was directed by the Supreme Court to decide the appeal afresh after affording proper opportunity of hearing to all concerned as the controversy squarely fell within its jurisdictional domain.

Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Aftab Ahmed v. Karachi Electric Supply Corporation 1999 SCMR 197 and Zahir Ullah v. Chairman, WAPDA 2000 SCMR 826 fol.

Jehangir A. Jhoja, Advocate Supreme Court and Ozair Chughati, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th March, 2003.

2003 S C M R 1269

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

NAZAR HUSSAIN and others---Petitioners

Versus

DEPUTY DISTRICT EDUCATION OFFICER and others---Respondents

Civil Petitions Nos.3537 and 3764-L of 2001, decided on 25th April, 2003.

(On appeal from the judgment, dated 22-9-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2256 of 1998 and 587 of 1999).

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974-----

----R. 22---Punjab Civil Servants Act (VIII of 1974), Ss.10 & 11--­Constitution of Pakistan- (1973), Art.212(3)---Ad hoc appointment--­Service subsequently regularized---Termination of service of such appointees on the ground that their services were regularized in an illegal manner and contrary to Rules---Validity---Regularization made in contravention of prescribed procedure could not be equated with that of "legal regularization" and in absence whereof the status of ad hoc or temporary appointees could not be changed unless regularized legally by adopting the prescribed procedure---Where the said procedure had not been followed, no legal right whatsoever had been created in favour of the ad hoc appointees which could refrain the Competent Authority from retracting their steps taken by them and accordingly the Competent Authority could remove the ad hoc appointees from service without assigning any reason and even without a show-cause notice and mere by afflux of time no ad hoc/temporary appointment could be converted to regular appointment till the prescribed procedure was followed--­Principles.

The petitioners in the present case were appointed on ad hoc basis and subsequently regularized in an illegal manner and contrary to rules and thereafter their services were terminated being regularized in violation of the relevant law and procedure prescribed thereunder.

The petitioners were appointed on ad hoc basis having no legal footings till regularization of their service which was to be made in accordance with the provisions as contained in sections 10 and 11 of the Punjab Civil Servants Act, 1974 read with rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974, which appears to be quite exhaustive in nature, comprehensive and capable enough to meet all sorts of eventualities concerning ad hoc appointments. On the touchstone of the criterion as stipulated in' the above mentioned Act and Rules made thereunder the case of petitioners had been examined whose appointment letter made it abundantly clear that they were appointed in a purely temporary capacity for a period of six months liable to be terminated at any time on one week notice with specific condition that these appointments will not confer any right of regular appointment. The petitioners were never regularized by following the prescribed procedure, the posts were never advertised, no examination whatsoever was held, no Selection Committee was constituted and in such circumstances the question of recognition of merits to be determined by the objective criteria would not arise which, if allowed to continue, would certainly lead to disastrous consequences. The regularization made in contravention of prescribed procedure could not be equated with that of a "legal regularization" in absence whereof the status of ad hoc or temporary appointees could not be changed unless regularized legally by adopting the prescribed procedure which was never followed. No legal right whatsoever had been created in favour of the petitioners which could refrain the Competent Authority from retracing their steps taken by them and accordingly the Competent Authority was competent to remove the petitioners from service. Service of ad hoc/temporary appointees could be terminated by the Departmental Authority without assigning any reason for the same and even without a show-cause notice and mere by afflux of time no ad hoc/temporary appointment could be converted to regular appointment till the prescribed procedure was followed.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Dr. Muhammad Yunis v. Province of Sindh 1989 PLC (C.S.) 8; Fayaz Hussain Shah v. Province of Sindh 1991 PLC (C.S.) 447 and Province of Punjab v. Azhar Abbas 2002 SCMR 1 ref.

Muhammad Riaz Lone, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner (in C.P. No.3537-L of 2001).

Kanwar Iqbal Ahmed Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.P. No.3764-L of 2001).

Nemo for Respondents.

Date of hearing: 25th April, 2003.

2003 S C M R 1274

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

Messrs BURJOR ARDSHIR INDUSTRIES LIMITED---Petitioner

Versus

PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION---Respondent

Civil Petitions Nos.857-K and 858-K of 2002, decided on 7th April, 2003.

(On appeal from the judgment of High Court of Sindh dated 10-5-2002 passed in H.C.As. 215 and 216 of 1990).

Foreign Currency Loan (Rate of Exchange) Order [P.O. No.3 of 1982]----

----Arts. 3 & 4(2)---Scope and application of Arts. 3 & 4(2) of the Order---Right of recovery if remained alive (even if subject to certain conditions), it could not be assumed that the transaction had become past and closed and the party would be liable to repay the loan under the Foreign Currency Loan (Rate of Exchange) Order, 1982 on the basis of rate of exchange on the foreign currency loan enforced on the date of actual payment.

It was provided in Article 3 of Foreign Currency Loan (Rate of Exchange) Order, 1982 that notwithstanding anything contained in any other law for the time being in force, the judgment of any Court or any agreement, contract or other instrument, the rate of exchange for repayment in respect of an outstanding foreign currency loan would be at the rate of exchange in force under section 23 of the State Bank of Pakistan Act, 1956 on the date of actual repayment to the financial institutions. Sub-Article (2) of Article 4 of the said Order, provided that any writ issued, judgment or decision given before or after commencement of the Order, inconsistent to the provisions of the Order, would be null and void and would have no consequence. However, this Order was not made applicable to the cases in which liability in respect of foreign currency loans towards financial institutions stood already discharged and loan was no more outstanding.

In the present case under the agreement, the petitioners were required to deposit an amount of rupees fifteen lacs inclusive of interest, penal interest, premium and charges payable by them within the time specified therein and this deposit was without prejudice to the right of respondents for claim of the balance .amount which would ultimately become due and recoverable. The parties had agreed that in case of failure of the petitioners to deposit the amount of rupees fifteen lacs within the prescribed period, the winding up petition would be deemed to be allowed and if the payment would be made within the time fixed, the winding up petition would stand dismissed as withdrawn. The parties with a view to make amicable settlement of the dispute and to avoid the consequence of litigation and winding up of the Company willingly made the above arrangement before the Company Judge. The plain reading of the terms of agreement in the entirety incorporated in the joint statement of the parties would show that respondents reserved the right of claim of balance amount and neither expressly nor impliedly, abandoned any portion of their claim or made an offer for acceptance of the proposal of final settlement, rather the agreement would evidently suggest that the respondents agreed for the settlement to the extent of disposal of winding up petition subject to the deposit of amount in question as partial payment towards the discharge of financial liability and the balance was to be calculated on the basis of the decision of the High Court Appeal and thus it was provided in the agreement in an unequivocal terms that the final settlement would be made on a future date can the determination of the date of chargeability. The controversy between the parties was confined only to the extent of rate of foreign exchange chargeable either prevailing on the date when repayment was due or on the date of actual payment. The plea of the petitioners was that their total liability stood discharged on the confirmation of the verdict given by the High Court in appeal and there was nothing outstanding against them whereas the case of the respondents on the other hand, was that on the commencement of Presidential Order No. 3 of 1982, the judgment' was nullified and in consequence thereto, the petitioners would be liable to repay the loan in terms of Article 3 of the Presidential Order on the basis of rate of exchange enforced on the date of actual payment.

The joint statement is divided into two parts. The first part contains the admission of petitioners qua their financial liability and in the second part, the right of the respondents for the claim of the balance amount was recognized. The first part relating to the payment of rupees fifteen lacs and the disposal of winding up petition was immediately acted upon and the implementation of the second part was kept pending till the disposal of the appeal by the High Court, therefore, the agreement would manifestly reveal that the claim of respondents, subject to decision of rate of foreign exchange, chargeable from the petitioners would be deemed to be outstanding and in absence of any apparent discrepancy appearing in the two parts of the agreement, no exception would be taken to the view expressed by the High Court to the effect that as long as respondent's right to seek recovery (even if subject to certain conditions) remained alive, it could not be assumed that the transaction had become past and closed. In the light of rule of adhering to the plain meanings of the words used in the statute being capable of depicting the intention of the Legislature, it could safely be held that the express provisions of Presidential Order No.3 of 1982 could not be construed subordinate to the consideration based on the agreement in question or any other instrument and thus the Presidential Order having overriding effect would remove all doubts in respect of rate of foreign exchange chargeable on foreign currency loans.

The agreement between the parties was conditional and final settlement in respect of the claim of the respondents would be subject to the determination of rate of exchange payment on the loan and therefore, the foreign currency loan obtained by the petitioners was still outstanding which would squarely fall within the ambit of Article 3 of Presidential Order No. 3 of 1982. The judicial verdict of the Courts in the matter was undoubtedly overruled by the Presidential Order No.3 of 1982 and in consequence thereto notwithstanding the agreement between the parties and the judgment of the High Court on the subject, the rate of exchange on foreign currency loans enforced under section 23 of the State Bank of Pakistan, 1956, on the date of actual payment would be charged. It is provided in the Presidential Order itself that it will only apply to outstanding foreign currency loans on the date of its commencement and having .no retrospective effect would not be applicable to the loan already paid before its commencement but in the present case, the financial liability of the petitioners subject to certain conditions, was still determinable which was not finally settled, therefore, it was not a case of past and closed transaction and consequently, on the annulment of the judgment, the financial liability of the petitioners would necessarily be determined under Presidential Order No. 3 of 1982. The judgment to the extent of being contrary and inconsistent with the provisions of Presidential Order, would be null and void and in consequence thereto, the petitioners would be liable to repay the loan under the above Order on the basis of rate of exchange on the foreign currency loan enforced on the date of actual payment.

G.H. Malik, Advocate Supreme Court and Sher Muhammad Khan, Advocate-on-Record (absent) for Petitioners.

K.A. Wahab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 13th January, 2003.

2003 S C M R 1284

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Kokhar, JJ

PUNJAB BOARD OF REVENUE, EMPLOYEES COOPERATIVE HOUSING SOCIETY LIMITED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No. 1094-L of 2000, decided on 16th April, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 25-2-2000 passed in W.P. No.2725 of 2000).

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

----O. VII, R.11---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185(3)---Rejection of plaint declined ---Condonation of delay---Advice of counsel---Proof---Failure to produce affidavit of the counsel---Petition for leave to appeal was barred by 15 days--­Application under O. VII, R. 11, C.P.C. filed by defendant was dismissed by the Trial Court---Judgment of the Trial Court was maintained by the Appellate Court as well as High Court---Reason for the delay advanced by the petitioner was that the counsel had advised him not to file the petition as the interest of the petitioner had been safeguarded by High Court---Validity---Petitioner failed to append the affidavit of the counsel who allegedly intimated the petitioner that there was no need to file petition---Even otherwise the reason advanced by the petitioner was no ground for condonation of delay---Judgments passed by the Courts below were perfectly in accordance with law---Leave to appeal was refused.

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

----O. VII, R. 11 & S.11---Rejection of plaint---Principle of res judicata---Applicability---Rejection of plaint was sought on the ground that the matter was barred by res judicata as such the same could be decided after framing regular issue and leading evidence---Trial Court had rightly declined to reject the plaint.

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

Syed Abul Asim Jafri, Advocate-on-Record for Respondents Nos.3 to 13.

Date of hearing: 15th April, 2002.

2003 S C M R 1286

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MUHAMMAD AFZAL and others---Petitioners

Versus

JAN MUHAMMAD and others---Respondents

Civil Petition No. 1868-L of 2001, decided on 20th June, 2002.

(On appeal from the order dated 13-4-2001 passed by the Lahore High Court, Lahore in Civil Revision No.785 of 2001).

Islamic Law---

----Gift---Proof---Mutation of gift, assailing of---Concurrent findings of fact by the Courts below ---Declaratory suit assailing the gift mutation was decreed by the Trial Court and the judgment and decree was maintained by Appellate Court as well as High Court---All the Courts below recorded concurrent findings of fact on the basis of evidence on record that none of the essential requirements of a valid gift was satisfied---Courts came to the conclusion that no offer of gift or its acceptance or delivery of possession of the suit land had taken place--­Marginal witness of gift mutation did not support the case of the plaintiffs---Alleged donor was illiterate person and his presence was not shown at the time of attestation of mutation by the Revenue Authorities---Judgment and decree did not suffer from any infirmity so as to call for interference by Supreme Court---Leave to appeal was refused---West Pakistan Land Revenue Act (XVII of 1967), S.45--­Constitution of Pakistan (1973), Art. 185(3).

S.M. Masud, Advocate Supreme Court with Mahmudul Islam Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th June, 2002.

2003 S C M R 1288

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

Mst. GUL NISA and others---Appellants

Versus

MUHAMMAD ASIF and others---Respondents

Civil Appeals Nos. 1149 and 1150 of 1995, decided on 2nd April, 2002.

(On appeal from the judgment of High Court of Balochistan, Quetta dated 14-9-1995 passed in C.Rs. Nos.29 of 1992 and 22 of 1995 respectively).

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

----Ss. 42 & 54---Constitution of Pakistan (1973), Art. 185(3)--­Contention of the petitioner was that the deed by which the petitioner's predecessor-in-title purchased the suit land from the owner and the latter's testimony as the petitioner's witness were not taken into consideration by the High Court---Leave to appeal was granted by Supreme Court to consider the contention.

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

----S. 54---Constitution of Pakistan (1973), Art. 185(3)---interference in possession of petitioners---Supreme Court in earlier petition had granted leave to appeal against the judgment of High Court whereby the petitioner's earlier suit was dismissed---Petitioners instituted the present suit against the threat of interference with their possession by the Revenue Officers---Leave to appeal was granted by Supreme Court in the fresh case also.

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

----Ss. 42 & 52---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--­Title over suit land---Entries in Revenue Record---Plea of lack of knowledge of such entries---Proof---Suit land was originally being a barren land was under the control of Tribal Chief under tribal system---Predecessor-in-interest of the plaintiffs allegedly purchased the same from the Tribal Chief in year 1953, made it cultivatable and were in possession as owners---Plaintiffs, in proof thereof produced compromise deed executed by Tribal Chief in favour of the plaintiffs in year 1971, and the same was incorporated in the Revenue Record---During the settlement operation from year 1968 to 1970, the suit land was mutated in the name of predecessor-in-interest of defendants and the plaintiffs also became owner in the village in the Revenue Record in consequence to the settlement operation---Trial Court dismissed the suit and the findings were maintained by High Court in exercise of revisional jurisdiction---Plea raised by the plaintiffs was that they were owners in possession of suit land and did not have the knowledge of entries in the Revenue Record in the name of defendants---Validity---Since such plea was not available to the plaintiffs the same was rightly rejected by the High Court---Claim of possession of suit land as owner of the predecessor-in-interest of the plaintiffs prior to the settlement in year 1968, was not proved through any evidence-- -Plaintiffs failed to prove how the Tribal Chief acquired the title of ownership of land and in what manner he transferred his title to the predecessor-in-interest of the plaintiffs in the year 1953---Suit land which was a barren land and was not a private property of any person and was not made part of Revenue Record through settlement was deemed to be the State land---Entire land being of same character was not as such a private property before the year 1968, in the Revenue Record, therefore, the same would be deemed to be the State owned land, the ownership of which by a private person on the basis of possession could not be recognized in the law unless it was specifically established that such person by afflux of time became the owner---High Court had rightly dismissed and no exception could be taken to the judgment and decree passed by the High Court---Supreme Court declined to interfere with the finding on question of fact relating, to the ownership acid possession of land arrived at by High Court and refused to reopen the question before Supreme Court through appraisal of evidence---Appeal was dismissed.

Tahir Muhammad Khan, Advocate Supreme Court for Appellants (in both Cases).

M.N. Kolhi, Advocate-on-Record for Respondents (in both Cases).

Date of hearing: 2nd April, 2002.

2003 S C M R 1295

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD RAFIQUE and others---Petitioners

Versus

MUHAMMAD SADIQ---Respondent

Civil Petition No.1262-L of 1999, decided 30th May, 2002.

(On appeal from the judgment/order dated 9th July, 1999 passed by Lahore High Court, Lahore in R.S.A. No. 67 of 1999).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--­Constitution of Pakistan (1973), Art,. 185(3)---Right in suit property--­Concurrent findings- of fact by the Courts below---Vendor governed lay custom (Rewaj)---Onus to prove---Claim of the plaintiff was that the suit land was owned by her father and after his death her mother. had become only limited owner, therefore, the sale of the land was sought to be set aside---Onus was on the plaintiff to prove that her mother was governed by custom (Rewaj) but she failed to even cross-examine the defendant who entered in witness-box and stated that the mother of the plaintiff was full owner of the suit land---Such statement of the defendant was not challenged---Plaintiff failed to bring any evidence on record that the suit land was transferred to her mother in lieu of her alleged limited estate--­Trial Court dismissed the suit and the judgment and decree was maintained by Appellate Court as well as by High Court ---Validity---­Concurrent findings of fact existed and no evidence was available on record to support the contentions of the plaintiff---Supreme Court declined to interfere with the concurrent findings of facts by the Courts below---Leave to appeal was refused.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866 ref.

Ch. Sardar Ali, Advocate Supreme Curt and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 30th May, 2002.

2003 S C M R 1298

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

IKRAMULLAH KHAN and 3 others---Appellants

Versus

MADAR GUL and 6 others---Respondents

Civil Appeal No. 1069 of 1996, decided on 3rd April, 2002.

(On appeal from the judgment of Peshawar High Court, dated 21-9-1994 passed in Review Petition No.22 of 1993).

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

----S. 9---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether the Civil Court had the jurisdiction to decide the matter pertaining to execution, discharge and satisfaction of the decree of the Revenue Court.

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

----S.114 & O.XLVII, R.1---Specific Relief Act (I of 1877), S.42--­Decree passed by Revenue Courts, assailing of---Review of judgment passed by High Court---Validity--Review of the judgment of High Court was sought by the appellants only to the limited extent of correction in the decretal amount for the purpose of execution of decree---Question raised by the appellant at the time of granting of leave to appeal had no nexus with the round on which review was sought---Supreme Court recalled the leave granting order---Appeal was dismissed.

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

Abdul Qadir Khatak, Advocate Supreme Court for Respondents.

Date of hearing: 3rd April, 2002.

2003 S C M R 1300

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

MONAZAH PARVEEN---Appellant

Versus

BASHIR AHMAD and 6 others---Respondents

Civil Petition for Leave to Appeal No. 1270-L of 2000, decided on 13th May. 2002.

(On appeal from the order dated 20-3-2000 passed by the Lahore High Court, Lahore in Civil Revision No.473 of 2000).

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

----S. 2(9)---Judgment---Declaring judgment void ab initio---Court of competent jurisdiction---Effect---Judgment and decree passed by Civil Court could not be declared as ab initio void because it was passed by a Court of competent jurisdiction.

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

----Ss. 5 & 14---Condonation of delay---Scope---No plausible justification having been furnished on the basis whereof delay could have been condoned, the application submitted under S.14 of Limitation Act, 1908, was rightly rejected.

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

----S. 12(2) & O. IX, R.13---Setting aside of decree---Proceedings under S.12(2) & O.IX, R.13, C.P.C.---Scope---Provisions under S.12(2), C.P.C. are not intended to be a duplication of proceedings provided for in O. IX, R.13, C. P. C. ---When application under O. IX, R.13, C. P. C. was dismissed then there was no lawful justification for filing the application under S.12(2), C.P.C.

Ghulam Sarwar v. Muhammad Sarwar 1987 SCMR 1440 ref.

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

----Ss. 5 & 14---Constitution of Pakistan (1973), Art. 185(3)--­Condonation of delay---Wrong advice of counsel---Filing of application under S.12(2), C.P.C. instead of filing of appeal---Application under O. IX, R.13, C.P.C. against ex parte decree was dismissed by the Trial Court---Defendant invoked provisions of S.12(2), C.P.C. for setting aside the ex parte judgment and decree---Such application was dismissed by the Trial Court but Appellate Court in exercise of revisional jurisdiction allowed the application---High Court in Constitutional jurisdiction set aside the order passed by the Appellate Court and observed that the proper course for the defendant was to assail the ex parte judgment and decree by filing an appeal---Defendant filed appeal in Appellate Court afterwards but the same was dismissed being time­ barred---Plea raised by the defendant was that it was the wrong advice of the-counsel whereby the defendant prosecuted the case in wrong forum--­Validity---Delay could not be condoned on the basis of wrong advice tendered by advocate as it was essential for the defendant to show that he followed the remedy before wrong forum acting with due care and caution on the basis whereof delay could be condoned but the defendant had failed to establish such fact---Conduct of the defendant depicted a careless and callous approach on the basis whereof condonation of delay had rightly been refused by the Appellate Court---Conclusion drawn by the Appellate Court and High Court being well based did not call for any interference---Leave to appeal was refused.

Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 ref.

Muhammad Akram Khokhar, Advocate Supreme Court and Asim Jafir, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 13th May, 2002.

2003 S C M R 1304

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ

C.P.L.A. No.721-L OF 2002

MUHAMMAD DIN---Appellant

Versus

MEMBER (CONSOLIDATION), BOARD OF REVNEUE, PUNJAB and another---Respondents

(On appeal from judgment of the Lahore High Court, Lahore dated 22-1-2002 passed in Writ Petition No.22743 of 1999).

C.P.L.A. No.722-L OF 2002

AMANULLAH---Petitioner

versus

MEMBER (CONSOLIDATION), BOARD OF

REVENUE, PUNJAB and another---Respondents

(On appeal from the judgment of the Lahore High Court, Lahore dated 22-1-2002 passed in Writ Petition No1.22744 of 1999).

C. P. L. A. No. 723-L OF 2002

SAIFULLAH---Petitioner

versus

MEMBER (CONSOLIDATION), BOARD OF

REVENUE, PUNJAB and another---Respondents

(On appeal from the judgment of the Lahore High Court, Lahore dated 22-1-2002 passed in Writ Petition Nol.22745 of 1999).

Civil Petitions for Leave to Appeals Nos.721-L to 723-L of 2002, decided 25th June, 2002.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Consolidation Scheme---Raising of no objection to the scheme---Allotment of land in excess of entitlement on account of Beshi---Revenue Authorities having not found the petitioners entitled on account of Beshi, withdrew the excess allotment and the land so withdrawn was allotted to the respondent---Order of Revenue Authorities was maintained by High Court in exercise of Constitutional jurisdiction---Contention of the petitioners was that the respondent failed to raise any objection at the time of sanction of Consolidation Scheme, therefore, no objection could be raised afterwards---Validity---Petitioners had not been able to satisfy the Court that the petitioners were entitled to any land in excess of their entitlement on account of Beshi---Finding of fact recorded by all the Courts below did not suffer form any illegality---Leave to appeal was refused.

Masood Akhtar Advocate-on-Record, Advocate Supreme Court for Petitioners (in all Petitions).

Ch. Muhammad Hassan, Advocate Supreme Court and C.M. Latif, Advocate Supreme Court for Respondent No.5 (in all Petitions).

Nemo for Respondents Nos. 1 to 4 and 6 to 42.

Date of hearing: 25th June, 2002.

2003 S C M R 1307

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mst. NAIMAT BI through Fatima Bibi and another---Petitioner

Versus

Mian MUHAMMAD ASHRAF---Respondent

Civil Petition for Leave to Appeal No. 1680/L of 1999, decided on 18th June, 2002.

(On appeal from the order dated 14-6-1999 of the Lahore High Court, Lahore, passed in Civil Revision No.943-D of 1986).

Contract Act (IX of 1872)----

----Ss. 19 & 11---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan (1973), Art. 185(3)---Registered sale-deed, assailing of--­Concurrent findings of fact by the Courts below---Plaintiff alleged that the sale-deed was based on fraud without consideration and having been executed by insane person---All the Courts below concurrently dismissed tae suit---Validity---Plaintiff failed to point out any irregularity or illegality in the order of High Court maintaining the concurrent findings of the Courts below---Plea of insanity was taken simply to deprive the defendants of their valuable rights---Supreme Court declined to interfere with the judgment passed by the High Court---Leave to appeal was refused.

Muhammad Aslam Ch., Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 18th June, 2002.

2003 S C M R 1309

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUMTAZ AHMAD KHAN and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition for Leave to Appeal No.2824/L of 2001, decided on 21st June, 2002.

(On appeal from the order dated 12-6-2001 of the Lahore High Court, Lahore, passed in Civil Revision No.786 of 2001).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Constitution of Pakistan (1973), Art. 185(3)—Tube-well Scheme---Cancellation of allotment---Withdrawal of advance money deposited by allottees---Allotment of land under Tubewell Scheme was cancelled by the Authorities---All the Courts below concurrently dismissed the suit, appeal and revision filed by the allottees---Contention of the allottees was that the Courts below had wrongly non-suited then on the point of lack of jurisdiction of the Civil Courts ---Validity---Sui filed by the allottees was dismissed by Trial Court on merits and the appeal as well as revision also met the same fate---None of the forum below had non-suited the allottees on the question. of jurisdiction-­Allottees after the resumption of land withdrew the advance money deposited by them with the Authorities and had not paid any instalment---High Court had given cogent reasons for maintaining the concurrent findings of the Courts below---No illegality or infirmity in the order passed by the Authorities was found warranting interference by Supreme Court---Leave to appeal was refused.

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 21st June, 2002.

2003 S C M R 1311

[Supreme Court of Pakistan]

Present:---Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

LAHORE DEVELOPMENT AUTHORITY---Petitioner

Versus

MUHAMMAD QASIM---Respondent

Civil Petition No. 1510-L of 2002, decided on 5th June, 2002.

On appeal front the judgment/order dated 26-3-2002 passed by Lahore High Court, Lahore in Civil Revision No.611 of 2001).

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

----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact by the Courts below---Interference---Trial Court and Appellate Courts after taking into consideration material available on record granted relief to the respondent---High Court had also examined the case in depth and formed opinion that the findings of fact recorded by the Trial and Appellate Court did not suffer from any illegality or irregularity---No piece of evidence was misread by the subordinate Courts or any principle of law had been violated by them, revision petition was rightly dismissed by High Court being not competent---Supreme Court concurred with the observations of High Court---Leave to appeal was refused.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866 ref.

Muhammad Rasheed Ahmad, Advocate Supreme Court and Syed Abul Asim Jafri, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 5th June, 2002.

2003 S C M R 1313

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

LIAQUAT ALI and another ---Petitioners

Versus

ELECTION TRIBUNAL, SIALKOT and others---Respondents

Civil Petition for Leave to Appeal No. 1051/L of 2002, decided on 16th April, 2002.

On appeal from the judgment dated 26-2-2002 of the Lahore High Court, Lahore, passed in Writ Petition No.3237 of 2002).

Punjab Local Government Elections Rules, 2000-----

----R. 70---Constitution of Pakistan (1973), Art. 185(3)---Election dispute---Recounting of ballot papers---Principles---Parties contested elections for, the seat of Nazim and Naib Nazim---Respondents were declared as returned candidates and the petitioners assailed the election before Election Tribunal in election petition---Petitioners gave up all other grounds raised in the election petition except for recounting of ballot papers---Election Tribunal ordered for recounting of ballot papers but High Court in exercise of Constitutional jurisdiction directed the Election Tribunal to first find out if any ground for recounting of ballot papers had been made out---After recording of evidence, Election Tribunal rejected the election petition which order was maintained by High Court in exercise of Constitutional jurisdiction ---Validity--­Evidence brought on record did riot make out a case for recounting of ballot papers---Election Tribunal after thrashing the entire evidence had rightly come to the conclusion that it was a plea taken afterwards and no case for recounting of ballot papers had been made out by the petitioners---Determination of Election Tribunal was upheld by Single Judge of High Court by advancing cogent and plausible reasons--­Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

M. Mohyuddin Qazi, Advocate Supreme. Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th April, 2002.

2003 S C M R 1316

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

HAMEEDULLAH KHAN---Petitioner

Versus

GHULAM RASOOL and 41 others---Respondents

Civil Petition No.2469 of 2001, decided on 3rd July, 2002.

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 29-6-2001 passed in C.R. No.84 of 1998).

Land Reforms Regulation, 1972 (M.L.R. 115)---

---Paras. 13(2), 18(a)(ii) & 18(a)(iii)---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan (1973). Art. 185(3)---Mortgage charge, shifting of---Surrender of land to Government---Charge over surrendered land---Government after resumption of excess land allotted the same to the plaintiff---Land surrendered by the declarant had already been mortgaged in favour of the defendants---Plaintiff sought declaration to the effect that the land allotted to him was fret from all encumbrances and charge over the land should have been shifted to the other land of the declarant---Trial Court dismissed the suit but Appellate Court allowed the appeal and judgment and decree passed by Trial Court were set aside---High Court in exercise of revisional jurisdiction maintained the judgment and decree passed by Appellate Court---Defendants contended that Deputy Land Commissioner failed to give effect to para. 13(2) of Land Reforms Regulation, 1972 and the charge should have been shifted to the other land owned by the declarant and further contended that even if it was not pleaded in the suit, still it was the duty of Court to take notice of the provisions of law to protect the rights in the mortgage--­Validity---Only a declaration was sought in the suit to the effect that the. land was free of mortgage charge and the matter relating to the shifting of mortgage charge to the remaining property of the declarant as provided under para. 13(2) of Regulation was not in issue in the suit---No such question was raised or adjudicated at any stage of the proceedings--­Que'stion relating to consequences of para. 13(2) of the Regulation, on the surrender of mortgage land being in the exclusive jurisdiction of Land Commission, was essentially to be raised and decided by the Deputy Land Commissioner and further defendants could also seek a declaration in the suit relating to the rights of mortgage in the mortgaged land but no such effort was made by the defendants at any stage before any forum---Nothing was available on record to suggest that an adverse finding qua such right of the defendants was recorded by any forum--­Supreme Court declined to interfere with the judgment of High Court on such ground---Leave to appeal was refused.

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

Nemo for Respondents.

Date of hearing: 3rd July, 2002.

2003 S C M R 1319

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No. 897-L of 2002, decided on 6th June, 2002.

(On appeal from the judgment/order dated 12-3-2002 passed by Lahore High Court, Lahore in Writ Petition No.2364 of 2002).

Civil Procedure Code (V of 1908)---

----O.XXI, R.58---Constitution of Pakistan (1973), Art. 185(3)--­Execution of decree---Objection---Concurrent findings of fact by the Courts below---Matter between the parties went up to Supreme Court and decree passed by Trial Court in favour of respondent was maintained--­During execution proceedings the petitioner filed objection petition which was dismissed by all the Courts below---Validity---Judgment operating against the petitioner had been maintained by Supreme Court, moreover, controversy between the parties had been considered by the High Court as well as by all the Courts below in detail, therefore, the order was just and proper in view of the facts and circumstances of the case---Supreme Court declined to interfere with the orders passed by the Courts below---Leave to appeal was refused.

Muhammad Rashid Ahmad, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record for Petitioners.

S. M. Masood, Advocate Supreme Court and Mahmood-ul-Islam Advocate-on-Record for Respondents.

Date of hearing: 6th June, 2002.

2003 S C M R 1321

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ

AFSAR KHAN and 11 others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Deputy Commissioner, Lahore and others---Respondents

Civil Petition No.741-L of 1999, decided on 29th May, 2002.

(On appeal from the judgment/order dated 21-4-1999 passed by Lahore High Court, Lahore in I. C. A. No. 1071 of 1998).

Limitation Act (IX of 1908)---

----S. 14---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art. 185(3)---Intra-Court Appeal, filing of---Benefit of S.14 of Limitation Act, 1908---Petitioners, instead of filing Intra-Court Appeal, had filed the petition for leave to appeal---Contention of the petitioners was that they be allowed to file Intra-Court Appeal and benefit of S.14 of Limitation Act, 1908, be given to them ---Validity--­Supreme Court declined to dilate upon the maintainability or otherwise of Intra-Court Appeal if filed before High Court and it would be for the High Court to examine such aspect of the case according to law--­Supreme Court without making any observation and causing prejudice to any of the parties allowed the petitioners to seek remedy from the appropriate forum strictly in accordance with law---If the proceedings 'were initiated, the Supreme Court allowed the other side to contest the same on all legal and factual planes---Petition was dismissed as withdrawn.

Dr. A. Basit, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Maqbool Illahi Malik, A.-G., -Punjab, Muhammad Rashid Advocate Supreme Court for LDA and S. Abul Asim Jafri, Advocate-on-Record for Respondents.

Date of hearing: 29th May, 2002.

2003 S C M R 1323

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mst. NAJAM-UN-NISA---Petitioner

Versus

JUDGE, SPECIAL COURT CONSTITUTED UNDER ANTI-TERRORISM ACT, 1997---Respondent

Civil Petition No. 1185-L of 2002, decided on 29th April, 2002.

(On appeal from the judgment dated 1-4-2002 passed by the Lahore High Court, Lahore in Writ Petition. No. 5189 of 2002).

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

----Ss. 6, 12 & 23---Constitution of Pakistan (1973), Art. 185(3)--­ Terrorist act---Jurisdiction of Special Court under S.12 of Anti­ Terrorism Act, 1997---Determination---Principles---Accused persons were involved in murder of seven persons in a house at night time--­ Application for transfer of the case to the Court of ordinary jurisdiction was declined by Special Court as well as High Court---Validity---Venue of commission of a crime; the tinge of occurrence the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed public at large are not the only factors determining the issue whether a case did or did not fall within the parameters of Anti-Terrorism Act of 1997---Crucial question for determination is whether the crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people---Crime committed even in a remote corner does not remain unnoticed in the area in which it is committed or even in the country on account of the print and electronic media---Seven persons being butchered in a house at night was not the kind of occurrence which would not create terror and horror in the people or any section of the people---No factual or legal infirmity existed in the orders passed by the Special Judge or the order passed by the High Court whereby the case was declined to be transferred to the Court of ordinary jurisdiction--­Leave to appeal was refused.

Syed Mazhar Ali Akbar Naqvi, Advocate Supreme Court and C. M. Latif, Advocate-on-Record for Petitioner.

Nemo for Respondent

Date of hearing: 29th April, 2002.

2003 S C M R 1325

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ASHIQ HUSSAIN SAEED---Petitioner

Versus

Mst. FARZANA CHAUDHRY and others---Respondents

Civil Petition for Leave to Appeal No.2450/L of 2001, decided on 19th June, 2002.

(On appeal from the judgment dated 9-5-2001 of the Lahore High Court, Lahore, passed in Writ Petition No.7615 of 2001).

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

----S. 5---West Pakistan Family Courts Rules, 1965, R.13---Constitution of Pakistan (1973), Art. 185(3)---Dissolution of marriage---Ex parte decree, setting aside of---Marriage after decree---Marriage was dissolved on the basis of ex parte decree in favour of lady who after passing period of Iddat, contracted second marriage---As service was duly effected on the defendant/ex-husband, Family Court dismissed the application for setting aside the ex parte decree and the order was maintained by Appellate Court as well as by High Court ---Validity--­Lady, after obtaining ex parte decree for dissolution of marriage, contracted second marriage after passing the period of Iddat and from that wedlock a daughter was born---Defendant/ex-husband had the knowledge of pendency of the proceedings for dissolution of marriage and he deliberately avoided his appearance---When the lady had already contracted a second marriage and was living with her second husband, and the defendant/ex-husband had failed to, substantiate his non-service in the suit for dissolution of marriage, Supreme Court did not find it a fit case for interference---Leave to appeal was refused.

Syed Zamir Hussain, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 19th June, 2002.

2003 S C M R 1327

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

KARIM BAKHSH and others---Petitioners

Versus

Mst. MEHRAN BIBI through Legal Heirs---Respondent

Civil Petition No.2962-L of 2001, decided on 8th May, 2002.

(On appeal from the judgment dated 3-7-2001 passed by Lahore High Court, Bahawalpur Bench in C.R. No. 137-D of 1986).

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--­Constitution of Pakistan (1973), Art. 185(3)---Title over suit property--- Proof---Plaintiffs ,claimed to be owners of the suit-land on the basis of consent decree passed in favour of their father regarding the suit property in an earlier suit filed for specific performance of agreement to sell---Defendant according to the plaintiffs was owner of the suit-land and she had filed an application in the Trial Court agreeing to the passing of a decree in terms prayed by the father of the plaintiffs--­Plaintiffs in the suit were aggrieved of transfer of the suit-land in favour of her daughter by the defendant---Assertion of the defendant was that the. father of the plaintiffs was tenant under her and she had never given any consent to the passing of any decree in his favour---Plaintiff failed to bring on record as to when their father had filed the earlier suit against the defendant nor any copy of the plaint in that suit was brought on record---Neither in the earlier suit which resulted in the alleged decree nor in the present suit alleged agreement to sell executed in favour of father of the plaintiffs was brought on record---No effort was made in the present suit to prove the application which had been allegedly filed by the defendant in the earlier suit admitting the claim of farther of the plaintiffs---Alleged application was drafted by a petition writer who was not produced in the Trial Court to prove the application---Judgment and decree passed by the Trial Court in favour of the plaintiffs was set aside by Appellate Court and High Court approved the same ---Validity--­Having secured a decree in the earlier suit neither father of the plaintiffs nor his successors ever got any sale-deed registered or any mutation entered reflecting the decree in question---Supreme Court declined to interfere with the judgments and decrees passed by the Appellate Court and High Court---Leave to appeal was refused.

Mian Allah Nawaz, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Date of hearing: 8th May, 2002.

2003 S C M R 1330

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABDUL RASHID---Petitioner

Versus

Mst. ANWAR BIBI and others---Respondents

Civil Review Petition No.39-L of 2001, decided on 24th May, 2002.

(On review from the judgment/order dated 21-6-2001 passed by Supreme Court of Pakistan in C.P No.2050-L of 2001).

Supreme Court Rules, 1980-----

----O. XXVI, R.1---Constitution of Pakistan (1973), Art. 188---Review of judgment---Principles---All the arguments were heard at the time of disposal of petition for leave to appeal and it was concluded that no case was made out for interference by Supreme Court in its Constitutional jurisdiction under Art.185(3) of the Constitution---Same arguments were repeated, therefore, in view of limited scope of review, no case was made out under Art. 188 of the Constitution---Petition was dismissed.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Syed Abul Asim laffri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th May, 2002.

2003 S C M R 1331

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

PROVINCE OF PUNJAB through Secretary, Education Department, Civil Secretariat, Lahore---Petitioner

Versus

Mst. UMAT UL BASIT---Respondent

Civil Petition for Leave to Appeal No.978-L of 2002, decided on 6th May, 2002.

(On appeal from the judgment dated 4-2-2002 of the Lahore High Court, Lahore passed in Writ Petition No.2545 of 2000).

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

----S. 13---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant---Non-appearance of tenant---Notice issued to District Attorney---Government was running a school in the rented premises ---Ejectment was sought on the ground of default and damage to property---Rent Controller dismissed the ejectment petition but Appellate Court allowed the appeal and passed eviction order---Authorities filed application under S.12(2) C.P.C. for setting aside of the eviction order on the plea that they had not been served with the process---Appellate Court dismissed the application under S.12(2). C.P.C. as the notice was twice delivered at the office of the authorities as well as to the District Attorney---Ex parte order passed by Appellate Court was maintained by the High Court---Validity---Not only the Secretary Education was duly served but the Government Pleader in any) Court was agent of the Government for the purpose of receiving processes against the Government issued by such Court---Service of notice on the District Attorney therefore, was also due service on the Government---Supreme Court declined to interfere with the eviction order passed by Appellate Court---Leave to appeal was refused.

Muhammad Riaz Lone, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

Date of hearing: 6th May, 2002.

2003 S C M R 1334

[Supreme Court of Pakistan]

Present : Muhammad Bashir Jehangiri and Khalil-ur-Rehman Khan, JJ

MUHAMMAD ZABIR---Petitioner

Versus

Haji MUHAMMAD TUFAIL and another---Respondents

Civil Petition No.906-L of 1999, decided on 22nd November, 1999.

(On appeal from the judgment dated 7-4-1999 of the Lahore High Court, Lahore passed in C.M. No. 1 of 1998 and R.F.A. No. 173 of 1998).

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

­

-----Art. 185(3)—Petition for leave to appeal ---Condonation of delay---Principle---Delay in filing petition for leave to appeal beyond period of limitation, has to be explained.

Ahmad Din v. Mst. Rasul Bibi PLD 1968 SC 213; Zahoor Elahi v. S. Fazal-ur-Rehman 1969 SCMR 274; Mst. Allah Rakhi v. Irshad Bibi 1994 SCMR 2244; Muhammad Nawaz v. Abdus Salam PLD 1997 SC 563 and Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 ref.

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

----S.96---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185(3)---Appeal---Condonation of delay---Non-filing of application for condonation of delay---Appeal against judgment and decree passed by the Trial Court was dismissed by High Court being barred by 26 days---Petition for leave to appeal against such dismissal was also barred by two days and no application for condonation of delay was filed---Effect---Petitioner failed to establish that High Court was not justified in declining to condone the delay of 26 days in filing the appeal---Petition for leave to appeal was barred by two days for which no application for condonation of delay had been filed---Leave to appeal was refused.

Rasheed Murtaza Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 1999.

2003 S C M R 1337

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD MUKHTAR and others---Petitioners

Versus

Mst. BIVI---Respondent

Civil Petition for Leave to Appeal No.846-L of 2001, decided on 30th April, 2002.

(On appeal from the judgment dated 14-2-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in C.R. No.592 of 1994).

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art. 185(3)---Title of property---Mutation of oral sale, based on fraud---Concurrent findings of facts recorded by the Courts below---Predecessor-in-interest of defendants was a lessee of disputed land and he in a claudestine manner secured the disputed mutation fraudulently in his favour---Plaintiff filed a declaratory suit challenging such mutation---Suit was decreed by Trial Court and the findings were upheld by Appellate Court and High Court---Validity---Predecessor-in-interest of the defendants was a lessee of the land and got the alleged oral sale in connivance with the Revenue Staff---Two Courts below had determined question of fact after scanning the entire evidence which was maintained by the High Court--­Defendants failed to point out any irregularity or illegality in the judgment of High Court warranting interference by Supreme Court--­Leave to appeal was refused.

Dr. Sohail Akhtar, Advocate Supreme Court with Mahmood A Qureshi, Advocate-on-Record for Petitioner.

Abdur Rasheed Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent.

Date of hearing: 30th April, 20002.

2003 S C M R 1339

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Tanvir Ahmad Khan, JJ

MUHAMMAD BASHIR---Appellant

Versus

MUHAMMAD USMAN and others---Respondents

Civil Petition for Leave to Appeal No.997-L of 2001, decided on 24th July, 2001.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 14-2-2001, passed in I. C. A. No. 1 of 2001).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-----

----Ss.10 & 11---Constitution of Pakistan (1973), Art.1.85(3) --- Accused was charged under Ss.10 & 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Quashing of- F.I.R.---Plea of Nikah--­Alleged abductee was sui juris girl who appeared before High Court and admitted contracting, marriage with the accused of her own free will--­Police during investigation had found the accused innocent-Effect--­High Court had rightly quashed the F.I.R.---Order passed by High Court was well-reasoned and based on settled principles of law---Leave to appeal was refused.

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

Nemo for Respondents.

Date of hearing: 24th July, 2001.

2003 S C M R 1341

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUNICIPAL COMMITTEE, TOBA TEK SINGH through Tehsil Nazim and others---Petitioners

Versus

Mirza GHULAM SARWAR and others---Respondents

Civil Petition for Leave to Appeal No. 1054/L of 2002, decided on 2nd May, 2002.

(On appeal from the judgment dated 19-2-2002 of the Lahore High Court, Lahore passed in Civil Revision No. 1525 of 1982).

Municipal Administration Ordinance (X of 1960)-----

----S.83---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---User of frontage of property, right of---Removal of encroachments from the frontage---Defendants had created Khokhas (Kiosks) in front of building owned by the plaintiffs---Municipal Committee had granted licences to raise Khokhas (Kiosks)---Grievance of the plaintiffs was that they had a right to use the frontage of their building and raising of Khokhas was illegal---Suit was decreed by the Trial Court in favour of plaintiffs but the Appellate Court reversed the findings of Trial Court and the suit was dismissed on the ground that under S.83 of Municipal Administration Ordinance, 1960. the Municipal, Committee had rightly granted licences to raise Kiosks---High Court in exercise of revisional jurisdiction, restored the judgment and decree passed by the Trial Court---Validity---Where it was established that the property abutted on public road, then the right of frontage was vested in the owner of the property which entitled him to seek relief from Court to protect his right---Plaintiffs had proved that their ventilators, door and approach to the roof through the stairs were blocked because of setting up of the Kisoks right adjacent to the outer walls of property---Supreme Court depreciated the act of Municipal Committee protecting the illegal encroachments and associating itself with encroachers---Leave to appeal was refused.

Ch. Atta Ullah, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Muhammad Amin Javed, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Respondents Nos. 1 to 6.

Date of hearing: 2nd May, 2002.

JUDGMENT

TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment, dated 19-2-2002 of a learned Single Judge of the Lahore High Court, Lahore, whereby Civil Revision No. 1525 of 1982 filed by the respondents was accepted and the judgment, dated 16-6-1982 of the learned District Judge, Faisalabad, was set aside and the earlier judgment rendered by the trial Court on 19-12-1981 was restored.

The facts briefly stated are that on 26-5-1973 the respondents/plaintiffs filed a declaratory suit against the Municipal Committee and others taking exception to the construction of Khokhas in Chota Rail Bazar, Toba Tek Singh, towards the backside of their Shop No.P-201/1 which was allotted by the Settlement Authorities to Muhammad Shafi, predecessor-in-interest of the respondents, in the year 1962. A perpetual injunction restraining petitioner No. 1 to issue Tehbazari tickets was also claimed. The suit was contested by the petitioners/defendants. Issues were framed. The parties led their evidence and the learned trial Court through its judgment/decree, dated 19-12-1981 decreed the suit. The petitioners filed an appeal against the aforesaid judgment which was accepted by the learned District Judge, Faisalabad, vide his judgment, dated 16-6-1982 and the declaratory suit filed by the plaintiffs/respondents was dismissed.

Civil Revision No. 1525 of 1982 was preferred by the respondents which has been allowed by a learned Single Judge of the Lahore High Court, Lahore, through the judgment, dated 19-2-2002, impugned herein, and the earlier judgment/decree passed by the trial Court has been restored. Hence this petition for leave to appeal.

We have considered the contentions raised by the learned counsel for the parties and have gone through the documents placed on record with their assistance. It is admitted by the learned counsel for the petitioners that the respondents' predecessor-in-interest was duly allotted Shop No.P-201/1 by the Settlement Authority. It is reflected from the perusal of the documents annexed with this petition that certain Khokhas were allowed to be set up in Chota Rail Bazar, Toba Tek Singh, by the Municipal Committee. It is also apparent that placing of these Khokhas alongwith the shop of the respondents/plaintiffs had diminished the value and importance thereof. By this act of the petitioners, the view of the allotted shop of the respondents abutting at Chota Rail Bazar had completely been marred. It is also borne out from the record that the said encroachers are not only affecting the business of the plaintiffs/respondents by placing Khokhas in front of their shop but had also caused inconvenience to the general public in the use of public way. The learned trial Court gave cogent reasons for decreeing the suit of the plaintiffs/respondents but the learned District Judge on wrong premises held it a private thoroughfare. The learned District Judge erroneously held that it was not a public road and even if that was so, under section 83 of the Municipal Administration Ordinance, 1960, the Municipal Committee was empowered to grant licences to raise Khokhas on its land.

We are sorry to hold that the learned Single Judge of the Lahore High Court has rightly pointed out that the learned District Judge, Faisalabad, while setting aside the judgment of the trial Court, had totally bye-passed the rights of the people whose property abuts on public road have got right to approach to the property from all points tree from all hinderances In this regard it would be appropriate to reproduce the observation of the learned Single Judge of Lahore High Court in the following terms:--

"However, I find that the learned District Judge has opted to observe that it is not a pubic thoroughfare. Proceeding on the said assumption the learned District Judge has validated the encroachment of the said road by the private respondents with the licence of the respondent No. 1 and consequently has completely overlooked the effect of the same on the right of frontage vesting in the petitioners. The right of a person owning property on a public road to approach the road from all points of the property abutting thereon has been recognized by .the Courts in the sub-continent and jealously guarded since ancient times. In case of Pakistan National Oils Ltd. and another v. Sattar Muhammad (1980 SCMR 686), after reference to several judgments from various High Courts of the sub-Continent their Lordships deduced that the principle of law, no doubt, is that an owner of land/property adjacent to the public highway has a right of frontage at all points in boundaries between his property and the road. In the instant case, the learned District Judge while holding that the property of the respondents has an opening towards the Main Bazaar failed to note that the said fact is whole irrelevant. Whereas it is established that the property abuts on the public road then the said right of frontage comes to be vested in the owner of the property and by itself entitles him to seek relief from the Court to protect the said right. In the present case, additionally the petitioners have proved that their ventilators, door and approach to the roof through the stairs is towards the said Rail Bazaar which admittedly stands blocked because of the setting up of the Kiosks right adjacent to the outer walls of the property. "

Before parting with this judgment we are astonished to note that the Municipal Committee, which is petitioner No. 1 in this petition, has associated itself with petitioners Nos.2 to 14 who are admittedly encroachers. Through this petition Municipal Committee is out to protect their illegal encroachment which cannot be appreciated on any score. We have also noticed that the respondents in this case have been meted out discriminatory treatment by the Municipal Committee as illegal Khokhas in similar circumstances were removed in two different cases as noted by the trial Court in Issue No. 5. Learned counsel appearing for the respondent has stated at the Bar that by the construction of these Khokhas the public road, which was earlier 50-60 feet wide, has been reduced to 20 feet. Through the removal of these illegal encroachments, according to him, general public would be benefited and the respondents would not have any objection for the use of this land for public thoroughfare.

Resultantly, in view of the foregoing discussion, the instant petition being without any force is hereby dismissed and leave declined.

M.H./M-534/S???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.

2003 S C M R 1344

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

MUHAMMAD TAHIR---Petitioner

Versus

Mst. RAEESA FATIMAH and others---Respondents

Civil Petition No.3491-L of 2001, decided on 19th April, 2002.

(On appeal from the judgment dated 16-10-2001 passed by the Lahore High Court, Lahore in W. P. No. 13800 of 1999).

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

----S.25---Constitution of Pakistan (1973), Art. 185(3)---Custody of minors---Principle of welfare of minors---Applicability---Mother of three minor children sought their custody---Family Court dismissed the suit but the Appellate Court accepted the appeal and allowed the custody to the mother---Judgment and decree passed by the Appellate Court were maintained by High Court in Constitutional petition---Father of the minors contended that welfare of minors was with him as the mother had developed illicit relations with another person, she was illiterate and did not have any known sources of income---Validity---High Court had found the mother of minors to be educated who could provide better education to the minors and it was further found that even if the income of the mother was lesser than that of the father of the minors, the same was enough for the proper education and maintenance of the minors‑‑­Father of the minors failed to substantiate the allegations against the mother‑‑‑Mother of the minors did not contract second marriage after getting divorce‑‑‑Judgment of High Court did not call for any interference by Supreme Court‑‑‑No question of law of public importance being involved‑‑‑Leave to appeal was refused.

Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

A.G. Tariq, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record for Respondents.

Date of hearing: 19th April, 2002.

2003 S C M R 1346

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SHARIF and 8 others---Petitioners

Versus

REHMAT KHAN through Muhammad Amir and 16 others---Respondents

Civil Petition No. 2516 of 2001, decided on 27th June, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 28-5-2001 passed in C.R. No.56 of 1987).

(a) Supreme Court Rules, 1980---

----O. XII, R.1 & O.XXXIII, R.6---Constitution of Pakistan (1973), Art. 185(3)---Constitutional petition---Petition for leave to appeal was time-barred---Delay, condonation of---Illness of mother of petitioner---Closing of Supreme Court on account of summer vacation---Delay of 18 days---Judgment was passed by High Court on 28-5-2001 and petition for leave to appeal was filed on 10-9-2001---Plea raised by the petitioner was that on 18-6-2001, his mother was admitted in hospital and she expired on 1-7-2001, after the death of the mother he himself fell ill and was advised bed rest by doctor from 8-8-2001 to 28-8-2001 and that during the intervening period, the Court was closed on account of summar vacations---Effect---Even if the period during which petitioner remained under treatment i.e. from 8-8-2001 to 28-8-2001, was excluded and he was also given concession for the period of illness of his mother, still the petition was barred by time as there was no explanation for the delay relating to the period from 28-8-2001 to 10-9-2001---Office was not closed during the vacation and petitioner could file the petition--­Closure of Supreme Court thus would not provide a valid ground for condonation of delay---Petition for leave to appeal was dismissed being time-barred in circumstances.

Fazal Karim v. Ghulam Jilani 1975 SCMR 452 distinguished.

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

----S. 54---Constitution of Pakistan (1973), Art. 185(3)---Restraining encroachment of land reserved for graveyard---Concurrent findings of fact by the Courts below---Trial Court decreed the suit and restrained the defendant from encroaching over the land reserved for graveyard--­Judgment and decree passed by the Trial Court were maintained by Appellate Court and High Court---Validity---No infirmity of misreading or non-reading of evidence was found---Leave to appeal was refused.

Ch. Muhammad Tariq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Ch. Muhammad Akram, Advocate-on-Record for Respondents.

Date of hearing: 27th June 2002.

2003 S C M R 1349

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB and others---Petitioners

Versus

TAJ MUHAMMAD ---Respondent

Civil Petition for Leave to Appeal No.1421/L of 2002, decided on 6th June, 2002.

(On appeal from the judgment dated 4-4-2000 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petition No.2619 of 1996).

Colonization of Government Lands (Punjab) Act (V of 1912)-----

----S. 10---Constitution of Pakistan (1973), Art. 185(3)---Temporary Cultivation Scheme---Grant of proprietary rights---Eligibility---Grant of two lots to one family---Grant of proprietary rights was refused by the Authorities on the ground that as one lot had already been granted to the father of the respondent, he could not be allotted the second lot---High Court in exercise of Constitutional jurisdiction set aside the orders passed by the Authorities---Validity---Respondent was in possession of the land right from the year 1978 which he had been cultivating independently since then---Respondent got allotted the land in dispute in his own right in year 1978 and he, being a grown up person at the time, was not dependent on his father---High Court had rightly issued the writ in favour of the respondent---Leave to appeal was refused.

Abdul Maajid Sheikh, Advocate Supreme Court for Petitioners.

Ch. Attaullah, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Respondent.

Date of hearing: 6th June, 2002.

2003 S C M R 1351

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

JALAL KHAN and 10 others---Petitioners

Versus

KHANDOO MALIK and 24 others---Respondents

Civil Petition No.3053 of 2001, decided on 3rd June, 2002.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 25-6-2001 passed in C.R. No.34 of 2000).

Civil Procedure Code (V of 1908)---

----O. XXVI, R.9---Constitution of Pakistan (1973), Art. 185(3)---Local Commission, appointment of---Principles---Grievance of the petitioner was that Appellate Court and High Court had not appointed Local Commission to ascertain the correct factual position which had caused prejudice to their case---Validity---Both the Courts below had refused to appoint Local Commission as sufficient evidence was available on record to decide the case---Petitioners could not seek appointment of Local Commission for their own convenience as they had not been able to substantiate their plea through any cogent evidence---No misreading or non-reading of evidence by Appellate Court was pointed out High Court had rightly declined to interfere in the concurrent findings of fact by the Courts below---Leave to appeal was refused.

Nazir Ahmed Lughmani, Advocate Supreme Court, Mahmood Ahmed Advocate Supreme Court and Muhammad Akram, Advocate-on­-Record for Petitioners.

Nemo for Respondents.

Date of hearing 3rd June, 2002.

2003 S C M R 1353

[Supreme Court of Pakistan]

Present Tanvir Ahmad Khan, Khalil-ur-Rehman Ramday and Faqir Muhamamd Khokhar, JJ

NAZIR AHMAD---Petitioner

versus

Mst. BHAGAN BIBI and others---Respondents

Civil Petition No. 1211-L of 2002, decided on 25th April, 2002.

(On appeal from the judgment dated 23-1-2002 passed by the Lahore High Court, Lahore in Writ Petition No.4193 of 1992).

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

----S. 13---Constitution of Pakistan (1973), Art. 185(3) --- Ejectment of tenant---Relationship of landlord and tenant---Determination---Petitioner claimed to be owner of the premises on the basis of Transfer Order issued by Settlement Authorities and the respondent was allegedly inducted by him who defaulted in payment of rent---Respondent denied to be the tenant in the premises and asserted to be the owner of the premises ---Jamabandi for the years 1945-46 showed that grandfather of the respondents was in occupation of the premises---Record of the Excise and Taxation Department also showed that the property was in the self­-occupation of the predecessor-in-interest of the respondents---While claim of the petitioner was that the predecessor-in-interest of respondents was inducted as tenant of the premises in year 1986---On failure of respondents to deposit the tentative rent, Rent Controller struck off the defence and eviction order was passed against the respondents---Appellate Court allowed the appeal and. eviction order was set aside---Judgment passed by the Appellate Court was maintained by High Court in exercise of Constitutional jurisdiction ---Validity--­Question of ownership of title of the petitioner qua the suit property had lost its significance for the purpose of determining the relationship of landlord and tenant between the parties---No substantial question of law of public importance being involved in the case, Supreme Court declined to interfere with the judgments passed by Courts below---Leave to appeal was refused.

Asif Mahmood Chughtai, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th April, 2002.

2003 SCMR 1355

[Supreme Court of Pakistani]

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

KHYZER HAYAT and 96 others---Petitioners

versus

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

Civil Petition for Leave to Appeal No. 1296-L of 2002, decided on 13th May, 2002.

(On appeal from the judgment dated 8-4-2002 passed by the Lahore High Court, Lahore, in Writ Petition No. 6917 of 1993).

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 10---Constitution of Pakistan (1973); Art. 185(3)---Consolidation scheme---Classification of land, non-assailing of---Consolidation scheme confirmed by Revenue Authorities---Such order 'was assailed by the petitioners before High Court in Constitutional petition, wherein High Court declined to interfere with the scheme---Plea raised by the petitioners for re-consolidation of village was that the classification of land was incorrect---Validity---Alleged incorrect classification was never challenged by any of the right holders before the appropriate forum at opportune moment---If any of the right holders was aggrieved of the classification, he would have challenged the same---Since no right holder had come forward for the redressal of his grievance, only inference would be that the consolidation was neither prejudicial nor had adversely affected the rights of right holders---Process of consolidation was not only exhaustive but also time consuming which could neither be undertaken time and again without sufficient justification nor annulled on the basis of few minor lapses---Any omission or error could be rectified by approaching the quarter concerned available in the revenue hierarchy---Re-consolidation depended upon the wishes of majority subject to all legal exceptions for which the proper forum could be approached---Supreme Court declined to interfere with the Consolidation Scheme confirmed by the Authorities---Leave to appeal was refused.

Ali Akbar Qureshi, Advocate Supreme Court and Mehmood-ul­Islam, Advocate-on-Record for Petitioners.

Ras Tariq Ch., Advocate Supreme Court for Respondents.

Date of hearing: lard May, 2002.

2003 SCMR 1359

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ZAITOON and others---Petitioners

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Petition No.2471-L of 2001, decided on 21st June, 2002.

(On appeal from the judgment dated 7-5-2001 passed by the Lahore High Court, Lahore in Civil Revision No. 127 of 1987).

Specific Relief Act (I of 1877)---

----Ss. 12, 22 & 42---Constitution of Pakistan (1973), Art. 185(3)--­Agreement to sell, execution of---Proof---Plaintiff, her two brothers and a sister allegedly executed the agreement to sell in favour of the defendants---Plaintiff denied execution of the agreement but her brothers and sister did not appear before the Trial Court in respect of execution of the agreement---Trial Court decreed the suit but High Court modified the judgment and decreed the suit to the extent of the share of the plaintiff only---Validity---.High Court in exercise of revisional jurisdiction was justified in holding that the agreement in question could not be declared to be invalid vis-a-vis the other three alleged executants thereof i.e. the two brothers of plaintiff and her sister because none of them, despite having been arrayed as defendants in the suit, had come forward to deny the execution of the agreement by them---Conclusions reached and the judgment passed by the High Court were unexceptionable---Leave to appeal was refused.

Hakim Ali's case 1981 SCMR 993 and Sher Muhammad's case 1994 SCMR 470 ref

Malik Noor Muhammad Awan, Advocate Supreme Court Syed Abul Asim Jafri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th June, 2002.

2003 SCMR 1361

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

FATEH KHAN---Petitioner

versus

MUHAMMAD SAQLAIN and 2 others---Respondents

Civil Petitions Nos.2774 to 2776 of 2001, decided on 11th June, 2002.

(On appeal, from the judgment of Lahore High Court, Rawalpindi Bench, dated 18-7-2001 passed in C.Rs. Nos. 102-D, 103-D and 104-D of 1998).

Constitution of Pakistan (1973)---

--Art. 185(3)---Factual controversy---Reappraisal of evidence--­Jurisdiction of Supreme Court under Art.185(3) of the Constitution Concurrent findings of fact by the Courts below---Factual controversy involved relating to flow of water in street and in consequence thereof the damage if any, caused to parties had been elaborately dealt with by High Court in the light of evidence brought by them on the record ---No misreading and non-reading of evidence by the Courts below and High Court was pointed out nor the petitioner had contended that his suit was dismissed without proper appreciation of evidence available on record-­Concurrent findings of fact by the Courts below could not be interfere with through reappraisal of evidence---Findings of fact even if erroneous could not be challenged before Supreme Court unless it was shown that the same was the result of misreading or non-reading of evidence or was based on no evidence---Judgment passed by High Court not suffering from any legal or factual infirmity could not be interfered---Leave to appeal was refused.

Manzoor Ahmed Rana, Advocate Supreme Court and Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th June, 2002.

2003 S C M R 1364

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Abdul Hameed Dugar and Muhammad Nawaz Abbasi. JJ

MAQSOOD AHMED through Legal Heirs and others---Petitioners

versus

Shiramati BHAGWANI BAI and 3 others---Respondents

Civil Petition No.729 of 2002, decided on 6th June, 2002

(On appeal from the judgment of High Court of Sindh, dated 8-4-2002 passed in C.R. No.9 of 1992).

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

----S. 8---Sindh Rented Premises Ordinance (XVII of 1979), Ss.10 & 15---Constitution of Pakistan (1973), Art. 185(3)---Recovery of possession---Relationship of landlord and tenant, denial of---Deposit of rent through Rent Controller---Recovery of possession under S.8 of Specific Relief Act, 1877---Shop in question was owned by plaintiff and although the defendant refused to accept the plaintiff as owner of the shop, yet he claimed to be a tenant and had been depositing the rent in Court through Rent Controller---Suit was decreed in favour of the plaintiff and judgment and decree passed by the Trial Court were maintained by Appellate Court as well as by High Court---Contention of the defendant was that he was tenant in the shop and proper course for recovery of possession was by way of ejectment proceedings ---Validity--­Defendant instead of accepting the plaintiff as his landlady, and tendering rent to her, deposited the same in treasury with the permission of Rent Controller---Plaintiff also did not acknowledge the defendant as her tenant in the shop---Suit for possession was the proper remedy as the status of defendant was not that of a tenant rather he would be deemed to be unauthorized occupant---Plaintiff was being consistently deprived of the legitimate right of possession and fruits of her property and the defendant while occupying the shop without payment of rent/mesne profit to the plaintiff was prolonging his possession through delaying tactics---Supreme Court declined to take any exception to the judgment of High Court---Leave to appeal was refused.

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

----Ss. 10 & 15---Deposit of rent through Rent Controller---Relationship of landlord and tenant---Scope---Such deposit of rent on his own accord would not inpso facto make the occupant a tenant---Possession on the property without the consent of the owner could not be a source of his tenancy in the property.

Abdul Rahim Kazi, Advocate Supreme Court and Raja Abdul Ghatuor; Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th June, 2002.

2003 S C M R 1367

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

HUMAYUN AKHTAR --- Petitioner

versus

PAKISTAN through Secretary, Ministry of Population Welfare, Government of Pakistan, Islamabad----Respondent

Civil Petition No. 1585-L of 2002, decided on 26th June, 2002.

(On appeal from the judgment dated 26-4-2002 of the Lahore High Court, Lahore passed in W.P. No.6143 of 1996).

Constitution of Pakistan (1973)---

----Art. 199---Service Tribunals Act (LXX of 1973), S. 4---Question of implementation of judgment of Service Tribunal, which had been set aside by Supreme Court, would not arise.

Federation of Pakistan and another v. Riaz Ahmad Baig and another 1984 SCMR 759 ref.

Petitioner in person.

M. Nawaz Bhatti, Dy. A.-G. for Respondent.

Date of hearing: 26th June, 2002.

2003 S C M R 1368

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Ahbasi, JJ

MEHFOOZ ILAHI PIRACHA---Petitioner

versus

SME BANK LIMITED and 3 others---Respondents

Civil Petition No.595 of 2002, decided on 8th May, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 24-4-2002 passed in Miscellaneous Petition No.128 of 2002 (Appeal No.417-RICE) of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Termination from service---Interim relief sought to suspended operation, of impugned order was refused by Service Tribunal---Validity---Petition for leave to appeal against interim order would not be maintainable---Interim. relief sought by civil servant, if allowed, would amount to disposal of appeal before Tribunal---Supreme Court dismissed petition and refused leave with direction to Tribunal to decide appeal of civil servant as early as possible.

Ch. Mushtaq Ahmed, Senior Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record (absent) for Petitioner.

K.M.A. Samdani, Advocate Supreme Court and Mehr Khan Majik, Advocate-on-Record for Respondents.

Date hearing: 8th May, 2002.

2003 S C M R 1370

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ

Messrs HABIB RAFIQUE---Petitioner

versus

COLLECTOR OF CUSTOMS AND CENTRAL EXCISE, MULTAN---Respondent

Civil Petition for Leave to Appeal No. 1185-L of 2000, decided on 2nd July, 2002.

(On appeal from the judgment of Lahore High Court, Lahore dated 10-4-2000 passed in Custom Appeal No.48 of 1998).

Customs Act (IV of 1969)---

----Ss. 19, 26, 156(1)(12), 196 & 196-A---S.R.O. 279(1)/94, dated 2-4-1994---Supreme Court granted leave to appeal to consider, whether petitioner was deprived of an opportunity of hearing and was condemned unheard by High Court, whether petitioner could be proceeded against for violation of provisions of S.R.O. 279(1)/94 after submission of certificate of installation from Assistant Collector, Central Excise; and whether penalty imposed on petitioner was disproportionate to offence allegedly committed by him.

Sayed Najmul Hassan Kazmi, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Izhar-ul-Haq, Advocate Supreme Court for Respondent.

Date of hearing: 2nd July, 2002.

2003 S C M R1372

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Raja MUHAMMAD AJAIB (R) DIRECTOR ACCOUNTS, WAPDA BONDS CELL---Petitioner

Versus

CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE and 2 others---Respondents

(On appeal from the judgment of Federal Service Tribunal, dated 24-10-2000 passed in Appeal No.241(P) of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Promotion--­Grievance of civil servant was that though he was recommended by Competent Authority for promotion - through circulation, but he was deprived of promotion on the pretext that he already stood retired, whereas his colleagues were given promotion from back dates after their retirement---Leave to appeal was granted by Supreme Court to consider matter in detail as contention raised with regard to discrimination and unfair treatment was floating on record.

Aslarim Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Walayat Ali Mir v. Pakistan International airlines 1995 SCMR 650; Ghulam Rasool v. Government of Balochistan PLD 2002 SC 381 and Baber Gul v. Sohail Ahmed Sheikh 2000 SCMR 581 ref.

Hafiz S.A. Rehman, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Zamir Hussain, .Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 7th June, 2002.

2003 S C M R 1374

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ail Mirza and Sardar Muhammad Raza, JJ

MUKHTAR AHMAD---Appellant.

versus

THE STATE---Respondent

Criminal Appeal No.376 of 1999, decided on 21st April, 2003.

(On appeal from the judgment, dated 20-11-1997 of the Lahore High Court, Lahore in Criminal Appeal No.341 of 1995 and Murder Reference No. 174 of 1995).

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

----S.302---Reappraisal of evidence---Two versions---Duty of Court--­Onerous duty was cast upon the Court to decide as to which of the versions was correct and plausible, supported by the evidence and circumstances on record, as to ascertain the truth or otherwise of the two versions before the Court, one had to refer to numerous circumstances on record.

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

---Ss.302 & 325---Reappraisal of evidence---Two versions---Complainant party had alleged that the accused tried to commit suicide but he survived and got injured---Validity---Once the accused was acquitted of the charge under S.325, P.P.C. that would tantamount to disbelieving the version of the complainant side that at the end the accused fired at his ownself in order to commit suicide---When it was not proved to be suicidal, the unavoidable conclusion would be that it was caused by the complainant during the process---When it was established that the injury was caused by some body else which totally negated the prosecution version, the prosecution story was bound to be thrown out altogether on this score alone.

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

----Arts.140 & 132---Penal Code (XLV of 1860), S.302---Reappraisal of evidence---Cross-examination---Examination-in-chief---Value---Cross­examination is a continuing part of the whole statement, rather, more important than the examination-in-chief.

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

----Art.150---Witness having been won over, the prosecution ought to have got him declared hostile.

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

----S.302---Reappraisal of evidence---Medical evidence---Nature of injuries---" Contact shot" or a "close shot" ---Description of injuries.

Dr. K.S. Narayan Reddy's Medical Jurisprudence and Toxicology 1st Edn., pp. 205 to 208 ref.

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

---S.302---Reappraisal of evidence---Two versions---Accused had no motive to kill the deceased who was his wife; complainant was highly inimical towards the accused; doctor who did post-mortem of the deceased was relative of the complainant; prosecution story was completely demolished; and most important witness in the case had been wrongly discarded---Prosecution, in circumstances, had failed to bring home the. charge of murder against the accused who was ordered to be acquitted by the Supreme Court.

Sardar M. Latif Khosa, Advocate Supreme Court and Salah-ud­Din, Advocate-on-Record for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

7th March, 2003

2003 S C M R 1385

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

RASAB KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.374 of 2002, decided on 4th June, 2003.

(On appeal from the judgment, dated 26-12-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.201-T of 1999).

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Constitution of Pakistan (1973), Art. 185(3)---Retracted extra-judicial confession---Accused was convicted for committing murder of two minors and sodomy with them and the only evidence against the accused was his retracted extra-judicial confession---Leave to appeal was granted by the Supreme Court to consider as to whether in the facts and circumstances of the case as established on the record, conviction could be based on extra-judicial confession.

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

----Ss. 302(b) & 377----Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Reappraisal of evidence---Accused was convicted for committing, murder of two minors and sodomy with them-.--Incident was unwitnessed one---No one had seen the minors in the company of accused prior to the incident---Only evidence against the accused was his retracted extra-judicial `confession said to have been made before two ,prosecution witnesses---Said prosecution witnesses were neither respectable of the locality nor enjoyed such a commanding position so as to have an access to or influence on the police or on the relatives of the deceased to get pardon for the Accused and in such a situation, as to what prompted the accused to confess his guilt voluntarily without any duress, coercion or inducement left room for consideration---Old enmity existed between the accused, and the prosecution witnesses-.--Unnatural and inhuman conduct was shown by the said witnesses---Evidence of said two prosecution witnesses, in circumstances, required strict scrutiny and was not worth reliance---Prosecution had failed to prove the case against the accused, as such, his appeal was allowed by the Supreme Court and conviction and sentence passed against him by the Courts below were set aside and he was acquitted from the charges.

Ziaul Rehman v: The State 2000 SCMR 528 and Sarfraz Khan v. The State 1996 SCMR 188 ref.

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

----Ss. 302 & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII- of 1979), S. 12---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7--­Qanun-e-Shahadat (10 of 1984), Art. 40---Reappraisal of evidence--­Accused was convicted for committing murder of two minors and sodomy with them---Only evidence against the accused was his retracted judicial confession---Validity---Extra-judicial confession was a very weak type of evidence and conviction could not be awarded on the basis of such evidence unless the same was corroborated by a strong piece of evidence---Neither the dead bodies of the two deceased minors nor any other incriminating piece of evidence was recovered by the police during the investigation at the behest of the accused---Dead bodies were in fact found and recovered prior to the arrest of the accused---Evidence of recovery of sleepers from the house of the accused would be of no help to the ease of the prosecution, as the same being the articles of common pattern of easy availability possibility of foisting them on accused could not be ruled out---Such type of discovery at the behest of the accused or by pointing out the place of occurrence to police during custody could not be said to be of discovery of fact for attracting the provision of S.40, Qanun-e-Shahadat, 1984---Reliance on such recoveries or extra-judicial confession was not sustainable and the accused was entitled to acquittal in circumstances.

Ziaul Rehman v. The State 2000 SCMR 528 and Sarfraz Khan v The State 1996 SCMR 188 ref.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant

Afshan Ghazanfer, Advocate Supreme Court for the state.

Date of hearing: 4th June, 2003.

2003 S C M R 1391

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Hamid Ali Mirza, JJ

GUL MUHAMMAD ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 146 of 1996, decided on 22nd May, 2003.

(On appeal from the judgment, dated 5-4-1995 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.373 of 1991).

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

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Leave to appeal was granted by the Supreme Court to consider as to whether on facts and circumstances of the case the accused was rightly acquitted by the High Court.

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

----S.302---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal---Acquitted accused was absconding---Accused was convicted by the Trial Court on the basis of ocular evidence furnished by three close relatives of the deceased; his arrest, recovery of a Kalashnikov from his possession, a motive and medical evidence---Appeal against acquittal could be decided on merits notwithstanding the absence of the accused who had lost his right of hearing on account of his abscondence.

Hayat Bakhsh and others v. Muhammad Ali and others PLD 1981 SC 265 ref.

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

----S.302---Constitution of Pakistan (1973), Art.185---Appeal against acquittal---Appraisal of evidence---Eye-witnesses were closely related to the deceased and in the background of enmity established on record--­They were interested witnesses whose presence at the scene of occurrence was neither natural nor probable and explanation given by them for their presence lacked plausibility---No tangible proof was available on record that the accused and co-accused had fired at a particular place and prosecution story in that respect clearly smacked of fabrication on account of non-recovery of any empty from the said place---Conflict between the ocular and the medical evidence also excluded the presence of the eye-witnesses at the place of occurrence--­Ocular evidence was too weak and unreliable to sustain conviction and its defects could not be cured by corroborative evidence and in any case it was not supported by the medical evidence---Motive set up in the F.I.R. was not directed against the deceased---Circumstances and incriminating recoveries could not serve as corroborative piece of evidence when the ocular evidence was not believable---Stereotyped reasons recorded by the Trial Court stood repelled in the face of the reasons leading to the acquittal of the accused which were not perverse, fanciful or speculative---Prosecution, in circumstances, had failed to prove its case against the accused persons beyond any reasonable doubt and the grounds of acquittal by the High Court could not be termed as perverse, fanciful and speculative which was a precondition for the reversal of judgment of acquittal---Supreme Court dismissed the appeal against acquittal.

Hayat Bakhsh and others v. Muhammad Ali and others PLD 1981 SC 265 and Asghar Ali v. State 1992 SCMR 2088 ref.

S.M. Tayyab, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court with Rao Muhammad Yousuf Khan, Advocate-on-Record for the State.

Date of hearing: 22nd May, 2003.

2003 S C M R 1398

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza and Faqir Muhammad Khokhar, JJ

ZARINA AYAZ---Appellant

Versus

KHADIM ALI SHAH-----Respondent

Civil Appeal No.287 of 2001, decided on 24th April, 2003.

(On appeal from the judgment, dated 11-11-1999 of the High Court of Sindh, Karachi in R.F.A. No.582 of 1991).

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

----S. 15(2)(vii)---Bona fide personal need of landlady---Plea of tenant was that landlady did not occupy her husband's house after its vacation at an earlier occasion---Validity---House vacated and not occupied by landlady did not belong to her---If landlady in her own discretion intended to take up residence in her own house,, then her intention could not be doubted for not having occupied her husband's house on its vacation---Such two ownerships, in law, were altogether different and independent from each other---Wife could independently hold property and had a right to live in her own house.

Muhammad Abdul Rauf v. Mst. Mahmooda Begum 1985 SCMR 1960 fol.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlord having many premises in the vicinity---Effect---Landlord's own subjective approach, choice and decision as to which of them in particular he wanted to occupy---No one else had a right to interpret circumstances from his own point of view by making allusions to different attending circumstances of case.

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

Samad Muhammad, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 24th April, 2003.

2003 S C M R 1401

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza, JJ

BAQAR --- Appellant

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Appeals Nos.602 and 603 of 1998, decided on 9th June, 2003.

(On appeal from the judgments, dated 13-6-1996 of. the Lahore High Court, Lahore in R.S.A. No. 37 of 1985 and C.R. No. 1006 of 1986).

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

----S. 152---Correction of decree---Powers of Court---Scope---Court could not rectify decree even if same was wrong or unfair or parties could not realize their. rights from it---Power of Court to rectify decree was limited to arithmetic mistakes or errors, arising from accidental slips or omissions---No resort could be made to provisions of S.152, C.P.C. when question involved was of contentious nature---Omission. made by Court by positive application of mind could never, be dubbed as accidental or a mistake apparent op the face of record---Error apparent on the face of record or accidental slip or omission should be an error apparent on the first sight and its discovery should not depend on elaborate arguments on questions of facts or law.

Koka Adinarayana Rao Naidu's case AIR 1940 , Mad.538; Ramasan Rai's case AIR 1946 Pat. 190 and Master Construction Co. (P.) Ltd.'s case AIR 1966 SC 1047 fol.

(b) Words and phrases-------

----Error apparent on the face of record---Concept.

Master Construction Co. (P.) Ltd.'s case AIR 1966 SC 1047 fol.

Malik Muhammad Nawaz, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Appellant.

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

Date of hearing: 17th April, 2003.

2003 S C M R 1406

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

MUHAMMAD PUNHAL---Petitioner

Versus

ABDUL WAHID ABBASI and another---Respondents

Criminal Petition for Leave to Appeal No,7-K of 2003, decided on 20th May 2003.

(On appeal from the judgment of the High Court of Sindh, Bench at Sukkur, dated 11-12-2002, passed in Criminal Revision No.52 of 2001).

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

----Ss.200 & 202- Examination of complainant---Issuance of process----Holding of preliminary enquiry after examination of complainant was not precondition for the, issuance of the process.

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

----Ss.200, 202 & 439---Revision---Scope---Complaint under S.200, Cr.P.C.---Non-recording of reasons for dismissing the complaint, postponing the issuance of process and holding of preliminary ,enquiry by the Trial Court being merely an irregularity and not illegality, High Court, in revision, could not interfere in the matter.

Dharmadas Lilaram v. F.H. Pilcher AIR 1931 Sind 113 and Ajay Krishna Sarkar v. S. G. Bose AIR 1929 Cal. 176 ref.

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

----Ss.202, 200 & 439---Complaint under S.200, Cr.P.C.---Enquiry--­High Court would not interfere in exercising its revisional jurisdiction with regard. to inadequacy of enquiry proceedings under S.202, Cr.P.C.

Parmanand Brahmachari v. Emperor AIR 1930 Pat. 30 ref.

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

----Ss.202, 200 & 439---Complaint under S.200, Cr.P.C.--­Postponement of issuance of process-When issuance of process was postponed the same would not be a ground for exercise of revisional jurisdiction by the High Court---Provisions of 5.202, Cr.P.C. were enabling provisions and not obligatory and non-compliance of same would not amount to illegality.

Parmanand Brahmachari v. Emperor AIR 1930 Pat. 30 ref.

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

----Ss.202 & 200---Scope of S.202, Cr.P.C.---Enquiry---Scope--­Issuance of process---Jurisdiction of the Court---Scope---Non-recording of reasons for postponement of. issuance of process by the Trial Court could not always be said to be mala fide or act of omission with ulterior motive considering that the purpose of postponement of issue of process under law was prima facie, to find out the truth and falsehood of the complaint.

An inquiry or investigation under section 202 is designed to afford the Magistrate an opportunity of either confirming or removing such hesitation as he may feel in respect of issuing process against the accused. The nature of the inquiry varies with the circumstances of each case, and it is certainly not contemplated that it should always be exhaustive. Frequently all that is required is the elucidation of some minor point or the summary determination of the sufficiency of the available evidence, but mostly the inquiry, is a preliminary trial of the accused where he is entitled to adduce his evidence before process be issued upon hire. The degree of formality of the proceedings and the width and depth of the inquiry is entirely in the discretion of the Magistrate so long as he confines himself to the. simple question of issue of process or dismissal of the complaint. The provision is enabling and not obligatory. As soon as Magistrate has satisfied himself that process should issue, its object is fulfilled and it is certainly not incumbent upon him or ordinarily expedient that he should practically enter upon a trial of the case.

The purpose of enquiry under section 202, Cr.P.C. is to ascertain the truth or falsehood of the complaint considering also the fact that the statements so recorded during the enquiry before issuance of the process could not be termed to be substantive evidence as none of the witness examined is cross-examined by the opposite--party. The Magistrate or the Judge holding enquiry has to decide as to whether to issue process after the complainant has recorded his statement under section 200, Cr.P.C. or to hold an enquiry and if enquiry is ordered to be held, wherein no further material is brought on record but if the trial Court, after hearing the arguments, is satisfied that prima facie case is made out for issuance of process, he would be legally competent to issue process or decline the issuance of process by dismissing the complaint. Issuance of process in respect of the persons complained against or refusal to issue process in respect of some of them; would amount to application of mind and the order passed in such circumstances could not be considered to be a mechanical one. The scope of said enquiry before the issuance of process is to find out whether prima facie a case has been made out, the Magistrate or Judge holding an enquiry under section 202, Cr.P.C. has no jurisdiction to weigh the evidence/material in order to find out if the prosecution has been able to prove its , case beyond reasonable doubt and the proceedings of case would not vitiate if the reasons are not recorded unless prejudice is shown to have been caused by failure to record reasons.

Non-recording of reasons by the trial Court cannot always be said to be mala fide or having been passed with ulterior motive considering that the purpose of postponement under law is prima facie to find out the truth and falsehood of the complaint.

Parmanand Brahmachari v. Emperor AIR 1930 Pat. 30 ref.

(f) Expunction of remarks from the judgment-----

---- Non-calling for the comments of the judicial officer against whom the adverse remarks were recorded and order for initiating action was passed against him by the High Court---Said judicial officer was not heard in person and he was condemned unheard---Appellate. or Revisional Court should be very careful in passing remarks in respect of the conduct of the officer specifically when he was not given opportunity of hearing---Not a single instance had been quoted by the High Court to show that the said judicial officer had taken cognizance of the offence against the accused with ulterior motive or had committed any illegality in the course of trial---Validity---Remarks passed against the judicial officer, in circumstances, were uncalled for and untenable in the eye of law and were ordered to be expunged by the Supreme Court.

In the matter of Expunging Remarks from Judgment PLD 1950 Lah.34; Malik Feroz Khan Noon v. The State PLD 1958 SC (Pak.).333; Chief Commissioner, Karachi v. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45 and Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51 ref.

Gul Bahar Kori, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Respondent No. 1 in person, Suleman Habibuallah, Addl. A.G. for the State.

Date of hearing: 20th May, 2003.

2003 S C M R 1416

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

WAJID ALI KHAN---Petitioner

Versus

Sheikh MURTAZA ALI and 2 others---Respondents

Civil Petition No.777 of 2003, decided on 26th May, 2003.

(On appeal from the judgment, dated 2-4-2003 of the Lahore High Court, Lahore, passed in Writ Petition No.2838 of 2002).

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

----S. 17---Specific Relief Act (I of 1877), S.12---Transfer of Property Act (IV of 1882), S. 53-A---Qanun-e-Shahadat (10 of 1984), Art. 117-­Constitution of Pakistan (1973), Art. 185(3)---Execution of ejectment order---Objection petition---Plea of petitioner/objector was that tenant delivered him possession of disputed property at the direction of landlord in pursuance of agreement to sell and that his suit for specific performance of agreement to sell was, still pending---Forums below including High Court non-suited petitioner---Validity---Petitioner had filed objection petition and suit after rejection of objection petitions filed by two persons having encroached upon upper portion of property in connivance with tenant---Landlord had strongly denied execution of agreement .to sell---Burden to prove validity and authenticity of agreement rested with petitioner, which was still sub judice---Mere agreement to sell would not confer any right of ownership on any person---Petitioner, thus, could not claim protection under S.53-A of Transfer of Property Act, 1882---Concurrent findings of fact had beer recorded against petitioner---Supreme Court dismissed petition and refused leave to appeal.

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

----S. 12---Agreement to sell would not confer any right of ownership on any person.

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

----S. 17---Specific Relief Act (I of 1877), S. 8---Execution of ejectment order ---Scope---Ejectment order could be executed against person having come into possession of subject property through tenant---Landlord after obtaining ejectment order would not be required to file suit against such person to seek relief of possession afresh.

Muhammad Sarwar v. Muhammad Shafi 1986 SCMR 1638 fol.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th May, 2003.

2003 S C M R 1419

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

KHALID JAVED and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.344 of 2001, decided on 2nd June, 2003.

(On appeal from the order/judgment, dated 4-7-2001 passed by Lahore High Court, Lahore in Criminal Appeal No. 100 of 1996).

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

----S.302(b)---Reappraisal of evidence---Prosecution itself vide F.I.R. and supplementary statement had introduced two versions of the incident whereas the accused during cross-examination on the statements of prosecution witnesses and in their statements under S.342, Cr.P.C. had supported the prosecution version mentioned in the F.I.R.--­Principles to be applied in dealing with such a case by the Court recorded.

The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them and then examine the statement of the accused under section 342, Cr.P.C. statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but Will review the entire evidence including the circumstances appearing in the case before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept -his plea and acquit or convict him accordingly.

Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 applied.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S.154--­Reappraisal of evidence---First Information Report under S.154, Cr.P.C. is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go escort free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false, report i.e. F.I.R. or supplementary statement with ulterior motive.

Muhammad Rafique Kamboh and another v. The State 1993 PCr.LJ 1403 ref.

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

----S.161---Supplementary statement by the complainant---Value---Supplementary statement of the complainant is not more than a statement under S.161, Cr:P.C.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 ref.

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

----Ss.154, 156 & 161---First Information Report and supplementary statement by the complainant---Evidentiary value---First Information Report is a document, which is entered at the complaint of the informant into a book, maintained at the police station under S.154, Cr.P.C.---First Information Report is signed/thumb-marked by the informant while the supplementary statement is recorded under S.161, Cr.P.C. and is not signed ---F.I.R. brings law into motion---Police under S.156, Cr.P.C. starts investigation of the case---Any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with F.I.R. nor read as part of the same and the value of the supplementary statement therefore will be determined keeping in. view the principles enunciated by the superior Courts in this behalf.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 and Anees-ur-Rehman and another v. The State PLD 2002 Lah. 110 ref.

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

----S. 302 (b)---Criminal Procedure Code (V of 1898), Ss.154 & 161--­Reappraisal of evidence---Delay in recording supplementary statement of the informant giving different version after lodging the F.I.R. would be an important factor which is likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and if it is so the same will adversely affect the prosecution case.

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

-----S.302(b)---Criminal Procedure Code (V of 1898), Ss.154 & 161--­Reappraisal of evidence---Supplementary statement by the informant with different version after recording of F.I.R.---Informant had claimed allowance on account of his disturbed mental condition but without proving medically through expert evidence---Effect---Held, it would be dangerous and against the interest 6f justice to accept the explanation of the informant without legal proof.

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

----S.174---Police Rules, 1934, R.25.35(1)---Inquest report is prepared when the investigation has been completed.

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

------Ss.154 & 161---Recording of supplementary statement with a different version by the informant after the registration of F.I.R.---No request was made subsequently by the informant for cancellation of the F.I.R. and substituting the same, with the supplementary statement--­Circumstances proved that supplementary statement was recorded by the informant with deliberation much after recording of F.I.R.

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

----Ss.154, 161 & 162---Penal Code (XLV of 1860), S.302(b)--­Reappraisal of evidence---Recording of supplementary statement by the informant with different version after lodging the F.I.R.---Value of such supplementary statement was not more than a statement of a witness under S.161, Cr.P.C. and object of recording of such statement was nothing but to use the same for the purpose of proving contradictions between the statement of the witness given by him in the Court and the previous statement as per the provisions of S.162, Cr.P.C.---Contents of F.I.R., in the present case, being a previous statement, could be compared with the statement recorded by the first informant on oath in the Court---Both the statements in the present case had disclosed two different versions particularly on the points of nomination of the accused persons; the names of the witnesses as well as injuries sustained by the deceased on her body during the commission of the offence ---Effect--­Legally no reliance- could be placed on supplementary statement---F. I. R. and the said statement had admittedly introduced two versions and in ­such a situation the question would be as to which version of the prosecution was to be accepted---Witness who had made glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the F.I.R. if he was complainant or if he was a witness and his statement was recorded under S.161, Cr.P.C., such witness was to be considered to be wholly unreliable witness and it was not advisable to place explicit reliance upon his evidence.

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

----S.302(b)---Reappraisal of evidence---Prosecution had to build up its case on the strength of the complainant/prosecution witness who was also the first informant and husband of the deceased lady---Where evidence of said witness itself was not trustworthy, confidence-inspiring and consistent to establish accusation against the accused and was totally rejected then the prosecution could not secure conviction on the basis of other evidence because the remaining prosecution witnesses were supposed to provide support to the statement of the complainant.

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

----S.302(b)---Reappraisal of evidence---Statement of a witness whose name was not mentioned in the F.I.R. is to be taken into consideration carefully and efforts be made by the Court to seek corroboration to such statement from independent sources---Every witness whose name did not find mention in the F.I.R. was not a false witness and could not be discredited for that reason alone nevertheless when F.I.R. was lodged by a complainant, who himself was not an eye-witness there was every possibility of omission of the name of eye-witness therein.

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

----S.302(b)---Reappraisal of evidence---Chance witness ---Credibility--­Conditions---Evidence of chance witness would be acceptable subject to establishing his presence at the place of incident---When no corroborative evidence was available to support the version of a chance witness the same had to be excluded from consideration.

Javed Ahmad alias Jaida v. The State 1978 SCMR 114; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Zafar Hayat v. The State 1995 SCMR 896 ref.

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

----S.302(b)---Reappraisal of evidence---Tainted piece of evidence cannot furnish corroboration to another piece of tainted evidence.

Ali Akhtar Hussain v. The State 1972 SCMR 40 and Muhammad Ilyas and another v. The State 1993 SCMR 1602 ref.

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

----S.302(b)---Reappraisal of evidence ---Wajtakkar type of witness was always treated to be a chance witness and his presence could be accepted if he/she could establish his/her presence at the place of incident but in the absence of such explanation the prosecution was bound to place on record some strong evidence to corroborate his/her statements--­Evidence of Wajtakkar type of witness could be doubted on number of reasons including his own residence and acquaintance of the witnesses with the accused.

Sikandar v. The State PLD 1963 SC 17 and Javed Ahmad alias Jaida v. The State 1978 SCMR 114 ref.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S.103--­Reappraisal of evidence---Accused, in the present case, had not been nominated in the F.I.R. but subsequently by means of supplementary statement they had been involved in the commission of offence--­Prosecution. witnesses were highly interested witnesses and one of them was a stock witness---Recovery of incriminating articles from the possession of accused---Prosecution, in circumstances, in order to exclude the false recovery, had to comply with the provisions of S.103, Cr.P.C. keeping in view the peculiar circumstances of the case---Object behind S.103, Cr.P.C. was to ensure that independent witnesses were associated with investigation of a case and possibility of concocted evidence was ruled out---Principles.

Zakir Khan and others v. The State 1995 SCMR 1793 ref.

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

---S.302(b)---Qanun-e-Shahadat (10 of 1884), Art.40---Reappraisal of evidence---When any fact was deposed as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer so much of such information (whether the same amounted to a confession or not), as related distinctly to the fact thereby discovered, be proved---Statement of accused before police is admissible if an accused person stated that a weapon of offence was lying at a particular place and he produced the same, that portion would be admissible but if he stated that the weapon with which he killed the deceased would be produced by him, such statement was inadmissible--­Principles.

The State through The Advocate-General, Province of Balochistan, Quetta ,v. Jamil Iqbal PLD 1974 Quetta 28 ref.

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

----S.302(b)---Reappraisal of evidence---Medical evidence ---Post­mortem---Supreme Court desired that, in all criminal cases, at the time of post-mortem the concerned doctor should get the blood group of the deceased determined from the Chemical Analyser for future use during investigation and trial of the case.

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

----S.302(b)---Reappraisal of evidence---Recovery of blood-stained clothes of accused---Held, in the absence of the evidence that the blood stains on clothes matched with the blood group of the deceased it would not be in the interest of justice to connect the accused with the commission of the offence.

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

----S.164---Qanun-e-S.hahadat (10 of 1984), Art.39--Confession--- Voluntariness---Confessional statement of accused must be recorded as early as possible---Statement recorded after a considerable delay from the date of arrest without offering any explanation for not producing the accused before the Magistrate as early as could be possible would create a doubt on its voluntariness.

Shaukat Saeed v. The State PLD 1978 Quetta 1 and Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363 ref.

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

----S.164---Qanun-e-Shahadat (10 of 1984), Art.39---Confession--­Voluntariness/retraction---Test---Principles---Court has to satisfy itself that the accused got recorded a true confessional statement---If the confession was retracted and was alleged to have been obtained under coercion, before believing the same it was imperative to examine as to whether same was corroborated by other evidence on material points--­Where such corroboration was not available, confessional statement would be inadmissible.

Bahadur Khan v. The State PLD 1996 SC 336 ref.

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

----Art.43---Confession---Confessional statement under Art.43, Qanun-e­-Shahadat 1984 can furnish proof against the person making the same and the Court may take into consideration such confession as circumstantial evidence against such other person---Where, however, the confessional statement cannot be used against its maker, the same cannot be equally used as circumstantial evidence against the co-accused.

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

----S.302(b)---Criminal Procedure Code (V of 1898, S.342--­Reappraisal of evidence---When the prosecution. possesses no incriminating evidence against an accused then his statement/version under S.342, Cr.P.C. has to be believed in toto.

State v. Muhammad Hanif 1992 SCMR 2047; Muhammad Yaqub v. State 2000 SCMR 1827; Waseem-ud-Din v. The State 2001 SCMR 290 and Muhammad Amin v. Muhammad Khan 2002 SCMR 1473 ref.

Nazir Ahmad Ghazi, Advocate and Mian Ataur Rehmania, Advocate-on-Record for Appellant.

Ch. Arshad Ali, Advocate Supreme Court for A.-G., Punjab for the State.

Muhammad Naveed Anwar Naveed for the Complainant.

Dates of hearing: 8th, 9th and 10th April, 2003.

2003 S C M R 1456

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

RASHIDA BEGUM and others---Petitioners

Versus

SADI BAIG and others---Respondents

Civil Petition No.38-L of 2001, decided on 22nd January, 2003.

(On appeal from the judgment, dated 29-5-2000 passed by the Lahore High Court, Lahore, in R.S.A. No.684 of 1976).

Pakistan (Administration of Evacuee Property) Act (XII of 1957)------

----Ss.7, 8, 22, 25 & 41---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.25---Property mortgaged with non-Muslim evacuees by the local mortgagors had not been redeemed---Evidence on record showed that mortgage was a simple mortgage of the property and was not held in usufruct---Evacuees had not got the physical possession of the property which continued with the mortgagors throughout---Such property vested in the Custodian of Evacuee Property only to the extent of the "mortgage rights" of the evacuees whereas the title of the property continued to vest with the local mortgagors---Non-evacuee mortgagor's right to redeem the. mortgage were never extinguished and even if the property was transferred, the same would be subject to mortgagor's right of redemption---Neither the mortgagor nor the mortgagee, in such a case, was obliged to seek a declaration of the status of the property by making a reference to the Custodian of the Evacuee Property in terms of S.22 read with S.25 of Pakistan Administration of Evacuee Property Act, 1957---Settlement Authorities had no power to transfer the ownership rights of the property in circumstances.

Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and another PLD 1962 SC 284; Rehmat Ali v. Member, Board of Revenue and another 1974 SCMR 171 and M.A. Hafeez Khan and 9 others v. Riaz Ahmad Mehra and 3 others 1983 SCMR 803 ref.

Rana Liaquat Ali Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd January, 2003.

2003 S C M R 1460

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

BIJAR KHAN---Petitioner

Versus

GHOUS MUHAMMAD through Legal Heirs and 7 others---Respondents

Civil Petition for Leave to Appeal No.822-K of 2002, decided on 14th May, 2003.

(On appeal from the judgment, dated 31-5-2002 of the High Court of Sindh, Hyderabad Circuit, Hyderabad, passed in R.A. No.2 of 1987).

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

----S. 12---Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell land---Contention of the petitioner (defendant in the suit) was that he had never entered into an agreement to sell with the plaintiff since one of the conditions of grant of land was that the same could neither be transferred by the grantee or his legal heirs, executors and assignees nor they could lease, mortgage, gift or sell the land without permission in writing of the Deputy Commissioner--­Petitioner further contended that Courts below had not dealt with the said aspect of the matter as such the question of transfer of land by way of agreement to sell, did not arise---Counsel of the plaintiff also admitted that the Courts below had not adverted to the said condition of the grant of land---Leave to appeal was granted by the Supreme Court to consider, inter alia, the impact of violation of the said condition on the subject ­matter.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioner.

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

Date of hearing: 14th May, 2003.

2003 S C M R 1462

[Supreme Court of Pakistan]

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

Syed MUHAMMAD ZAHIR SHAH---Petitioner

Versus

MUHAMMAD ANWAR and 4 others---Respondents

Civil Petition No.320-P of 2002, decided on 11th March, 2003.

(On appeal from the judgment of the N.-W.F.P, Service Tribunal, Peshawar, dated 27-5-2001 passed in Appeal No.1315 of 2000).

Constitution of Pakistan (1973)---

----Art.212(3)---Appointment---Petitioner was appointed as junior clerk as a special case without codal formalities---Respondent, who possessed better academic qualification and had sufficient long experience to his credit, was a better candidate than the petitioner in all respects for the post of junior clerk but his services were terminated-- -Service Tribunal had ordered that the respondent be reinstated as junior clerk with full back benefits---Petitioner had failed to point out any legal infirmity in the impugned judgment of the Service Tribunal and could not make out a case of involving substantial question of law of public importance warranting interference by Supreme Court under Art.212(3) of the Constitution---Petition for leave to appeal was dismissed in circumstances.

Khushdii Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th March, 2003.

2003 S C M R 1466

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Hamid Ali Mirza, Abdul Hameed Dogar, Allama Khalid Mehmood and Dr. Rashid-Ahmed Jullundhari, JJ

Mst. SHAMIM and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 11 (S) of 2001, decided on 17th April, 2003.

(On appeal from the judgment, dated 21-10-1998, passed by the Federal Shariat Court, in Criminal Appeal No. 41/L of 1996).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)------

----Ss.16 & 10(3)---Constitution of Pakistan (1973), Art.203-F---Conviction of the accused rested on the statement of the complainant, eye-witness account, testimony of doctor who examined the victim and positive report of the Chemical Examiner---Leave to appeal was granted by the Supreme Court to consider as to whether the evidence on record was sufficient for conviction.

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

----Ss.16 & 10(3)---Reappraisal of evidence---Allegation of Zina-bil-Jabr with a married woman---Prosecution story, being foundation on which edifice of the prosecution case was raised, occupied a pivotal position in a case, it should, therefore, stand to reason and trust be natural, convincing and free from any inherent improbability and it was neither safe to believe a prosecution story which did not meet said requirements nor a prosecution case based on improbable story could sustain conviction ---Prosecution story, in the present case, was, improbable and irrational as the same did not appeal to reason---First Information Report lodged by the complainant (victim) was cancelled having been found false by successive Investigating Officers and she had filed a private complaint after about seven months---Question of delay in making the F.I.R. thus had lost significance on account of its cancellation, however, unexplained delay in setting the machinery of law in motion prima facie pointed to fabrication of the prosecution story---If the complainant had hibernated after cancellation of the F.I.R. and made a delayed private complaint the prosecution evidence must be sifted and weighed with great care and caution---Testimony of the complainant had been rendered unreliable by the unrealistic and improbable nature of the prosecution story besides her testimony was inconsistent with the ocular evidence of prosecution witnesses---Ocular evidence was also not confidence­ inspiring because both the prosecution witnesses were not natural and probable witnesses and their presence at the spot was highly doubtful as they had not explained their presence at the place of occurrence satisfactorily---One of the prosecution witnesses did not figure in the F.I.R. and was added in the complaint,. he was undoubtedly a trumped­ up witness---Both the prosecution witnesses were closely related to the complainant and their ,testimony had not been corroborated by any independent evidence coming from an unimpeachable source---Medical evidence failed to support the testimony of the complainant--­Complainant (victim) being a married woman positive report of the Chemical Examiner was no better than the Medico-legal Report of the complainant---Prosecution, in circumstances, had singularly failed to prove its case against the accused persons beyond any reasonable doubt, therefore, they were entitled to the benefit of doubt.

(c) Criminal trial---

---- Prosecution story being foundation on which edifice of the prosecution case was raised occupied a pivotal position in a case, it should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability and it was neither safe to believe a prosecution story which did not meet said requirements nor a prosecution case based on improbable prosecution story could sustain conviction.

Muhammad Ikram Chaudhry, Advocate Supreme Court and M.A. Zaidi Advocate-on-Record for Appellants.

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

Date of hearing: 17th April, 2003.

2003 S C M R 1471

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza, JJ

ZAFAR IQBAL KHAN---Petitioner

Versus

PAKISTAN AGRICULTURAL RESEARCH COUNCIL, ISLAMABAD and others---Respondents

Civil Petition for Leave to Appeal No.3073 of 2001, decided on 7th April, 2003.

(On appeal from the judgment, dated 15-8-2001 of the Federal Service Tribunal, Islamabad in Appeal No. 1400 (R) of 1999).

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

----Ss. 6 & 2-A---Abatement of proceedings pending in other forums--­Scope---Insertion of S.2-A in the Service Tribunals Act, 1973 while the matter of the employee was pending before the High Court in its Constitutional jurisdiction---Effect---Provision of S.6, Service Tribunals Act, 1973 operated to abate all suits, appeals or applications pending in any Court while the proviso to the said section laid down in clear words that any party to such a suit, appeal or application, within ninety days of the establishment of appropriate Tribunal would prefer an appeal to such Tribunal---Words "establishment of the appropriate Tribunal" in said S.6 clearly meant that whenever any Tribunal was established for any person or class of persons, they had to resort to such Tribunal within the period prescribed in the section itself---Abatement provided by the law itself was automatic and it had to take effect from the very date (10-6-1997) when through insertion of S.2-A in the Service Tribunals Act, 1973 the change of forum took place---Whenever the abatement was automatic. no party to litigation before any forum other than the newly created one, was supposed to wait for the final, decision or any instruction by the forum where the cause was already pending---Employee; in the present case, who had filed a Constitutional petition before the High Court, without waiting for the decision of the High Court or any instruction therefrom ought to have resorted to the Service Tribunal---By insertion of S.2-A in the Service Tribunals Act, 1973, the Service Tribunal got established for the employee, in the present case, with effect from 10-6-1997 and it was incumbent upon the employee to have had resorted to the Service Tribunal on or before 10-9-1997 whereas, he filed appeal before the Service Tribunal on 24-6-1999 which .was, of course time barred.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 and The Chairman, P.I.A.C. v. Nasim Malik PLD 1990 SC 951 ref.

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

----Ss.2-A & 4---Time-barred appeal to Service Tribunal---Condonation of delay---Employee had contended that Service Tribunal had acted without jurisdiction in not condoning the delay involved as, the same was caused due to bona fide litigation in another forum---Employee, who had filed a Constitutional petition before the High Court, even after the insertion of S.2-A in the Service Tribunals Act, 1973 continued with the said petition and failed to resort to Service Tribunal after 10-6-1997--­Such act of the employee was an act of negligence and lacked care--­Lack of exercise of due diligence and caution before moving a wrong forum or staying in a wrong forum, was uncondonable---Litigation before a wrong forum could not be considered to be bona fide act in law and the delay caused thereby could not be condoned.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249; The Chairman, P.I.A.C. v. Nasim Malik PLD 1990 SC 951; Ch. Muhammad. Sharif v. Muhammad Ali Khan 1975 SCMR 259; Mirza Muhammad Saeed v. Shahab-ud-Din PLD 1983 SC 385 and Muhammad Tufail Danish v. Deputy Director, F.I.A. 1991 SCMR 1841 ref.

(c) Pakistan Agricultural Research Employees (Service) Regulations, 1984---

----Regln.12(5)---Seniority---Assessment Committee, formation of--­Recommendations of Assessment Committee qua seniority in specific cadre or post to be followed---If an employee of the Department was prompted and if a new incumbent was appointed in the higher grade, in the same calendar year, the promotee would rank senior to the new entrant regardless of their dates of promotion.

Petitioner in person.

Abdul Karim Kundi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.6.

Date of hearing: 7th April, 2003.

2003 S C M R 1476

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmad Khan and Sardar Muhammad Raza, JJ

RABNAWAZ---Petitioner

Versus

Haji MUHAMMAD IQBAL and 2 others---Respondents

Civil Petition for Leave to Appeal No. 1937P of 2003, decided on 5th June, 2003.

(On appeal from the order, dated 7-2-2003 of the Peshawar High Court, Circuit Bench, D.I. Khan, passed in Writ Petition No.186 of 2001).

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

----S.13 [as applicable to Province of N.-W.F.P.]---Relationship of landlord and tenant, existence of---Proof---All the facts on record, statement of witness and plaint in a civil suit indicated that relationship of landlord and tenant existed between the parties---Application for ejectment by the landlord having been based on default, and the required relationship of landlord and tenant having been denied by the tenant the tenant was liable to be ejected straightaway when the required relationship was proved in affirmative.

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

----S.13(6) [as applicable to Province of N.-W.F.P.]---Rent Controller was authorised to .finally determine the amount due from the tenant and direct that the same may be paid, to the landlord.

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

----Ss.17, 15 & 13 [as applicable to Province of N.-W.F.P.] --- Order passed under S.13, West Pakistan Urban Rent Restriction Ordinance, 1959 or an order passed on appeal under S.15 of the said Ordinance (in N.-W. F. P.) was directly executable by a Civil Court as if the same were a decree of that Court---Rent Controller (in N.-W.F.P.) could finally determine the amount of rent due and could direct the same to be paid to the landlord with the only condition that for practical execution it shall be placed before the Civil Court which shall treat the same as a decree passed by itself.

Abdul Aziz Khan, Advocate Supreme Court for Petitioner.

Abdul Karim Kundi, Advocate Supreme Court for Respondents.

Date of hearing: 5th June, 2003.

2003 S C M R 1479

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MUKHTIAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 115-P of 2002, decided on 10th June, 2003.

(On appeal from the judgment, dated 18-9-2002 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No. 126 of 2001).

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

----S.302(b)---Reappraisal of evidence---Contentions of the accused were that the ocular account rested on highly interested and inimical evidence---Prosecution in order to, substantiate its case had produced the evidence of complainant, only who was real brother of the deceased, whereas the other prosecution witness, his cousin, did not support the case of prosecution and was declared hostile; that there was glaring inconsistency between the ocular and medical evidence and that the alleged weapon of offence, said to have been used by the accused in the commission of offence, had not been recovered from the possession of the accused as such he deserved acquittal---Validity---Mere relationship of the witnesses with the deceased was not enough to discard his testimony particularly when no animosity was attributed to him--Ocular account furnished by the complainant was found to be convincing, believable, truthful and inspiring confidence by both the Courts below--­Ocular account had been corroborated in material particular by the medical evidence, recovery from the spot and abscondence of the accused---Incident being a broad daylight, the question of mistaken identity was eliminated altogether---Motive stood proved on record--­Alleged hostile witness, in his cross-examination, had candidly admitted in unequivocal terms that there was dispute between the accused, deceased and the complainant over the landed property and during. the trial of the accused in absentia, he had also fully implicated the accused with the commission of the offence and also admitted the contents of the F.I.R. to be true---Prosecution, in circumstances, had fully established its case beyond and shadow of doubt and the accused was rightly convicted and sentenced by the Trial Court---No infirmity whatsoever in the impugned judgment of the High Court having been found by the Supreme Court the same was held to be unexceptionable.

Abdul Ghafoor v. State 2000 SCMR 919 ref.

Muhammad Anwar Sipra, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 10th June, 2003.

2003 S C M R 1483

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MASNOOR-UL-HAQUE SOLANGI---Petitioner

Versus

PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION, KARACHI and 2 others---Respondents

Civil Petition for Leave to Appeal No.944-K of 2002, decided 14th May, 2003.

(On appeal from the judgment, dated 23-9-2002 of the High Court of Sindh, Karachi, passed in Constitution Petition No.518 of 2002).

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

----Ss.13 & 3(1)---Allotment of Accommodation to Officers of Karachi Rules, R.13(iii)---Employee of a statutory Corporation was allotted a residential accommodation by the said Corporation---Services of the employee were transferred to another statutory Corporation and as per agreement, occupancy charges were being deducted from the salary of the employee and sent to the Corporation who owned and had allotted the accommodation---Services of the employee were terminated by the transferee Corporation which was privatized---Default in payment of occupancy Charges by the employee after the termination of his service--­Held, default in payment of occupancy charges, in circumstances, would be. only, technical in nature---Owner of the premises being an autonomous body, provision of Sindh Rented Premises Ordinance, 1979 would be applicable and the Corporation which owned the property could maintain a petition for ejectment under the said Ordinance and was not hit by S.3(1) of Sindh Rented Premises Ordinance, 1979---Case- of the employee, however, fell within the ambit of R.13(iii) of the Allotment of Accommodation to Officers of Karachi Rules which provided that if an officer who was dismissed, discharged or removed from service preferred an appeal or petition against the order of his dismissal, discharge or removal, he may be allowed to retain his accommodation pending decision on his appeal or petition---Employee having been agitating his removal from the very beginning and having been ultimately reinstated in service with all back benefits by the Service Tribunal, which order was . still sub judice before the Supreme Court, wherein leave had been, granted---Judgment of the High Court against the employee suffered from legal infirmity and thus was not sustainable in law and was accordingly set aside.

S. Shahanshah Hussain, Advocate Supreme Court instructed by Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Khalilur Rehman; Advocate-on-Record for Respondent No.1.

Date of hearing: 14th May, 2003.

2003 S C M R 1487

[Supreme Court of Pakistan]

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

MUHAMMAD HUSNAIN BUTT---Petitioner

Versus

S.S.P., FAISALABAD and another---Respondents

Civil Petition for Leave to Appeal No. 89 of 2003, decided on 30th May, 2003.

(On appeal from the judgment, dated 22-10-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1931 of 2002).

Punjab Police (Efficiency and Discipline) Rules, 1975---------

----R.6---Constitution of Pakistan (1973), Art.212(3)---Police Officer was dismissed from service on the charges that his living standard was beyond his earnings and that his service record revealed that he had stinking reputation for having bad record of service and he was a black spot for the Police Department---Service record- of the officer further demonstrated that a case, was registered against him under S.10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S,109, P.P.C. but on account of proceedings under S.265-K, Cr.P.C. he was acquitted by Sessions Judge on technical ground in.spite of the fact that he was admittedly found naked with a lady in the quarters adjacent to the police station by Assistant Superintendent of Police who paid a surprise visit alongwith other police officials---Officer was reinstated in service by simply :holding that since his application under S.265-K, Cr.P.C. had been accepted and he had been acquitted from the charges, he was to be reinstated---Authority while reinstating him totally brushed: aside the enquiry report prepared by the D.S.P. who reported therein that employee had been found guilty during the course of investigation--­Competent Authority, after examining the record, issued a show-cause notice to the. officer and after confronting him with the same dismissed him from service and his appeal was also dismissed by the Appellate Authority and the Service Tribunal---Contention of the Officer was that proper enquiry was not conducted in his case---Validity---Superior Officer of the Police Force had conducted the raid in company of other police officials and things appearing before them themselves established that there was laxity in observing the discipline on the part of officer--­Where a superior who had even otherwise authority to control, and supervise the functioning of his subordinate conducted such a raid and the accused officer had admitted the same, resort to the show-cause notice procedure without appointing any Inquiry Officer could not on any principle, be objected to as abuse of the discretion or unjustified in law---Accused officer belonged to a disciplined force and being the custodian of law was required to; protect the moral fibre, honour and dignity of the people at large but the officer instead of protecting such values, himself had indulged in immoral and nefarious activities ----Competent Authority after perusing the entire record of the accused official rightly thought it fit not to retain him in service and there was no illegality or legal infirmity in the impugned judgment, of the Service Tribunal warranting interference by the Supreme Court.

Deputy Inspector-General of Police-, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 fol.

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

Nemo for Respondents.

Date of hearing: 30th May, 2003

2003 S C M R 1493

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

Syed MATCH COMPANY LTD. through Managing Director---Petitioner

Versus

AUTHORITY UNDER PAYMENT OF WAGES ACT and others---Respondents

Civil Petitions Nos.455 to 463 of 2002, decided on 7th April, 2003.

(On appeal from the judgment, dated 13-2-2002 Peshawar High Court, Peshawar passed in W.Ps. Nos.43 to 51 of 2001).

(a) Payment of Wages Act (IV of 1936)-----

----Ss. 15 & 17---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Delay in payment of wages---Authority determined amount payable by petitioner (employer)---Petitioner filed Constitutional petition against such order instead of appeal---High Court dismissed Constitutional petition---Validity---.Such was not the case of complete lack of jurisdiction nor could be termed as mala fide---Lack of jurisdiction could not be attributed to Authority even after assuming claim of respondents (employees) to be on higher side---Party had no discretion to ignore provisions of appeal and file Constitutional petition instead---Nothing material was -available on record for ignoring remedy provided under S.17 of the Payment of Wages Act, 1936---Constitutional jurisdiction of High Court had been invoked in order to nullify effect of S.17(1)(a) of Payment of Wages Act, 1936, which was mala fide---Supreme Court dismissed petition and refused leave to appeal.

(b) Appeal (civil)-----

---- First appeal is a continuation of suit---Factual controversy could only be resolved by sifting evidence on record.

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

----Art. 199---Party had no discretion to ignore provisions of appeal and file Constitutional petition instead.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---By passing remedy provided under relevant statute and press Constitutional petition---Supreme Court disapproved such tendency with exception of certain cases.

(e) Payment of Wages Act (IV of 1936)---

----Preamble---Object of Payment of Wages of Act, 1936---Act primarily is a beneficial legislation enacted to provide relief to workers--­Construction of the Act which may tend to nullify object of its legislation cannot be placed upon its provisions.

(f) Interpretation of statutes---

---- Remedial statutes shall always be construed in a manner to advance the remedy as provided in the statute and not in a manner as to defeat legislative intendment.

(g) Payment of Wages Act (IV of 1936)-----

----Ss. 15 & 17---Constitution of Pakistan (1973), Art. 199---Delay in payment of wages---Authority determined amount---Petitioner instead of appeal filed Constitutional petition before the High Court against such order---High Court dismissed Constitutional petition with observations that petitioner would be at liberty to file appeal in appropriate forum, which would exclude time spent in the High. Court from computing period of limitation prescribed in law---Validity---Petitioner had not deposited amount determined by Authority---High Court had no jurisdiction to pre-empt decision of First Appellate Court on point of limitation---Supreme Court set aside such observations of High Court leaving matter to Appellate Authority to decide issue of limitation on merits after taking into consideration all circumstances of. case.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A Zaidi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 7th April, 2003.

2003 S C M R 1498

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza, JJ

NAWAB KHAN---Appellant

Versus

RAISA BEGUM and others---Respondents

Civil Appeals Nos.710 and 711 of 1998, heard on 18th April, 2003.

(On appeal from the judgment, dated 4-5-1997 of the Peshawar High Court, Peshawar in Civil Revisions Nos. 153 and 619 of 1994).

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

----Ss. 41 & 53-A---Benefit of Ss. 41 & 53-A of Transfer of Property Act, 1882---Entitlement---Such benefit could not be extended to a party, whose entire claim was based on fraud, intrigue and misrepresentation.

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

----S. 53-A, proviso---Contest between two persons claiming to be purchasers of same property---Benefit of S.53-A of Transfer of Property Act, 1882---Entitlement---Such benefit would be available to person having entered into agreement to sell prior in time as well as being un­aware of any rights of other person which were concealed from him at relevant time.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

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

Date of hearing: 18th April, 2003.

2003 S C M R 1501

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza, JJ

ABDUL HAKEEM and others---Petitioners

Versus

KHALID WAZIR---Respondent

Civil Petitions for Leave to Appeal Nos.472-P and 473-P of 2002, decided on 26th May, 2003.

(On appeal from the judgments, dated 9-9-2002 and 14-12-2001 of the Peshawar High Court, Peshawar in Review Petition No. 1 of 2002 in C.R. No.704 of 2000 and Civil Revision No.704 of 2000).

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

----Art. 185(3)---Supreme Court Rules, 1980, O. XIII, R.1---Petition time-barred by 267 days---High Court dismissed revision on 14-12-2001 and review on 9-9-2002---Petition for leave to appeal filed against original order passed in revision was time-barred by 267 days--­Application for condonation of delay did not contain any plausible or sufficient grounds warranting condonation ---Application for obtaining copy of judgment in revision was filed after dismissal of review petition---Supreme Court dismissed petition as time-barred.

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

----S. 20---Civil Procedure Code (V of 1908), O. XLVII, R.1---Plea of vendee of having equal right of pre-emption with pre-emptor ---Non raising of such plea in written statement or absence of written statement ---Effect---Vendee not bound to take specific plea under S.20 of North-West Frontier Province Pre-emption Act, 1987 same being purely a legal question---Court bound to grant decree in equal shares, if f6und on basis of evidence that both parties belonged to same class of pre­emptors-Principles.

Section 20 of N.-W.F.P. Pre-emption Act raises purely a legal question to the effect that if, on the basis of evidence, it is found by Court that both the pre-emptor and vendee fall within the same class of pre-emptors and have equal right of pre-emption, the Court will grant a decree in equal shares. In pre-emption suits, the vendee, even if having a right superior to that of pre-emptor may take a plea simply to the effect that pre-emptor does not have a superior right of pre-emption. It remains for the Court to determine as to where do the parties stand and what decision is ultimately to be given in the light of what has come before it in the shape of evidence.

The vendee is not bound to take a specific plea under section 20 of North-West Frontier Province Pre-emption Act, 1987, because even. if a vendee is proceeded ex parte and even if there is no written statement on record, the Court still is bound to grant decree in equal shares, if ultimately it is found in evidence that both the parties belonged to same class of pre-emptors. Whether a person possessed superior right, equal right or no right is a question of fact, but the consequence thereof is question of law and hence a Court can grant or refuse a decree in the light of section 20 provided the conditions thereof are duly fulfilled through the evidence on record. Since implication of section 20 of the Act was the only point involved, the review was justified in law as well as in the interest of justice.

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

----S.114 & O. XLVII, R.1---Review---Scope---Review proceedings could not partake of re-hearing of a decided case---Review could not be allowed on the ground of discovery of some new material, if same was available at the time of hearing of trial, appeal or revision, as the case might be---Ground not taken or raised at such earlier stages could not be allowed to be raised in review proceedings.

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

----S.20---Civil Procedure Code (V of 1908), S. 115 & O. XLVII, R.1--­Constitution of Pakistan (1973), Art. 185(3)---Plea was that vendee had equal right of pre-emption with pre-emptor ---Such plea not raised at any stage though available to vendee right from Trial Court up to to High Court ---Vendee raised such plea in review petition filed before High Court against judgment passed in revision---Validity---Such plea having not been taken before any of such forums, particularly in revision petition being last in the series, same could not be made a ground for review---Supreme Court dismissed petition and refused to grant leave to

Abdul Samad Khan, Advocate-on-Record for Petitioners

Haji M. Zahir Shah, Advocate-on-Record for Respondent.

Date of hearing: 26th May, 2003.

2003 S C M R 1505

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Sardar Muhammad Raza Khan, JJ

KHALID SAEED---Petitioner

Versus

SHAMIM RIZVAN and others---Respondents

Civil Petition for Leave to Appeal No.2159/L of 2002, decided on 13th June, 2003.

(On appeal from the judgment, dated 22-1-2002 of the Lahore High Court, Lahore, passed in I.C.A. No.453 of 1997).

(a) Lahore Development Authority Act (XXX of 1975)---

----Preamble---Object of Lahore Development Authority Act, 1975--­Duty of officers of the said Authority---Removal of encroachment--­Measures for removal discussed.

Lahore Development Authority Act, 1975 was promulgated on 3-4-1975 with a laudable object to improve quality of life in metropolitan area of Lahore City by providing planned development through evolving such policies, which would improve environmental conditions in all facets of life.

Preamble of the said Act has also mandated to achieve the goals of modern city planning. They can only be achieved, if the public functionaries entrusted with the job implemented the Rules and Regulations' in letter and spirit in an even-handed manner. The menace of encroachment, which has plagued the whole society, can also be easily tackled, if the problem is attended to in a bona fide manner without any discrimination irrespective of the status or influence .of the encroacher.

It is the responsibility and duty of the functionaries of L.D.A. to ensure that the Rules and Regulations made by it are implemented by the people in letter and spirit. If they are violated, it is the duty of the officers concerned to take strict action against guilty person under the law.

(b) Lahore Development Authority Building Regulations, 1984-----

----Reglns. 17 & 51---Use of residential property as gymnasium, squash courts and swimming pool for general public---Validity---Property in residential area could not be utilized for a purpose other than residential as same would be inconsistent with approved scheme or master plan--­Benefit/concession provided to doctors, lawyers and technical consultants under Regln. 51 of Lahore Development Authority Building Regulations, 1984 could be extended to some other persons only on fulfillment of three conditions enumerated therein---Resident of a residential area could utilize his property as an office of his vocation after securing permission from Authority on fulfilment of such three conditions, but gymnasium, squash courts and swimming pool for general use could not be allowed in a residential property.

(c) Lahore Development Authority Building Regulations, 1984-----

----Reglns. 17, 51 & 96---Lahore Development Authority Act (XXX of 1975), Ss. 2(aa), 4 & 17---Constitution of Pakistan (1973), Arts. 185(3) & 199---Use of residential property as gymnasium, squash courts and swimming pool on commercial basis---Authority granted such permission to petitioner on basis of successive directives issued by Chief Minister--­Respondent (owner of adjacent house) took exception to such permission in Constitutional petition, which was allowed by High Court and Intra ­Court Appeal filed by petitioner was dismissed---Validity---Qualification of petitioner was B.A., 3rd Division alongwith certificates of short courses on sports, medicine and nutrition, duration of which was from one day to a week---Petitioner could not be termed as a "professional" so as to take benefit of Regln. 51 of Lahore Development Authority Building Regulations, 1984 and allow him. to convert his residential place into a gymnasium, squash courts and swimming pool inviting customers to take benefit of such utilities arid run same on commercial basis---Such type of activities, if allowed, would seriously impair use of adjoining property of respondent and of those residing in area as same would spoil its peaceful atmosphere and disturb privacy of its residents---Petitioner `had not followed procedure required for getting permission from Authority, but he by simply using his influence had secured directive from Chief Minister, on the basis of which Authority had allowed him such illegal venture---Chief Minister under Lahore Development Authority Act, 1975 had no power to issue any such directive, which had caused multifarious difficulties for residents of area---Exercise of powers by Chief Minister not vesting in him was not a matter of pride in any democratic set-up---Director General of Authority had no absolute powers to play with Rules and Regulations, rather his function was to ensure implementation of Regulations and not to frustrate same--­Petitioner could not justify his illegal venture by contending that similar other illegal activities were going on as result of accepting such plea would be disastrous---Areas specified in Regln. 96 of Lahore Development Authority Building Regulations, 1984 were subject to special control and properties abutting on specified roads could not be changed from residential to commercial by Authority without "No­ Objection Certificate" from owners of adjoining properties, which was a sine qua non for this purpose---Subject residential area was specified area and petitioner had not obtained N.O.C. from owners of adjoining properties---Supreme Court dismissed petition and refused leave to appeal.

Encyclopaedia Britannica, 1963 Edn.; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; M.M. Ispahani Ltd. v. Haji Muhammad Sultan PLD 1955 Sind 78; Federation of Pakistan and others v. Messrs Charsadda Sugar Mills Ltd. 1978 SCMR 428; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Sui Southern Gas Company Ltd. v. Engr. Naraindas and others PLD 2001 SC 555; Mrs. Mehar Sultan Jung v. Qurban Hussain 1972 SCMR 73 and Yusuf Ali Khan v. State PLD 1977 SC 482 rel.

(d) Lahore Development Authority Building Regulations, 1984-----

----Regln. 51---Use of residential property as professional office--­Discretion of Competent Authority to give permission for such use, such discretion must be exercised in a legal manner and not arbitrarily.

(e) Practice and procedure---

---- If a method is prescribed to do a thing in particular manner, same must be followed in letter and spirit.

(f) Specific Relied Act (I of 1877)-----

----Ss. 54 & 55---Lahore Development Authority Building Regulations 1984, Reglns. 17, 51 & 96---Constitution of Pakistan (1973) Arts. 185(3) & 199---Unauthorised use of property---Suit for permanent and mandatory injunction to restrain illegal construction by defendant--­Permission granted to defendant by Authority on directive of Chief Minister was later on withdrawn, over which he filed two successive Constitutional petitions---Defendant withdrew both Constitutional petitions after becoming successful in securing another directive from Chief Minister---Plaintiff then filed Constitutional petition taking exception to such successive directives of Chief Minister, which were not subject-matter of suit ---Reliefs claimed both in suit and Constitutional petition filed by, plaintiff were totally different --­Contention of defendant that plaintiff herself had already gone to Civil Court, thus, her Constitutional petition was not maintainable, was, devoid of any force.

(g) Lahore Development Authority Building Regulations, 1984---

----Reglns. 17 & 96---Constitution of Pakistan (1973), Art. 185(3)--­Unauthorised use of property---Plea of petitioner was that similar other illegal activities were going on in the same area---Validity---Petitioner could not justify his illegal venture by raising such plea---If such plea was accepted, its result would be disastrous and dacoits/thieves would justify their actions simply by saying that other dacoits/thieves having committed similar acts had not been punished---Such plea thus was, without any substance.

Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 distinguished.

(h) Lahore Development Authority Building Regulations, 1984---

----Regln. 96---Commercial use of a residential. property in areas specified in Regln. 96 of Lahore Development Authority Building Regulations, 1984---Scope---'Such specified areas were subject to special control---Use of properties abutting on specified roads from residential to commercial could not be approved by Authority, unless No-Objection Certificate from owners of adjoining properties was provided, which was a sine qua non for such use.

(i) Words and phrases---

----------“Profession “ and professional"---Meaning elaborately discusses.

Muhammad Munir Peracha, Advocate Supreme Court fo0r Petitioner.

Munir Ahmad Bhatti, Advocate Supreme Court for Respondent No. 1.

Ch. Muhammad Rashid, Advocate Supreme Court for Respondent No. 3.

Date of hearing: 3rd June, 2003.

2003 S C M R 1522

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MAQSOOD AHMED SIDDIQUI --- Petitioner

Versus

NISAR AHMED and others---Respondents

Civil Petition No.446-K of 2002, decided on 16th May, 2003.

(On appeal from the judgment, dated 12-4-2002 of the High Court of Sindh, Karachi, passed in Appeal No.57 of 2002).

Law Reforms Ordinance (XII of 1972)---

----S.3(1)---Civil Procedure Code (V of 1908), S.96---High Court appeal---Maintainability---High Court appeal shall lie to the Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in exercise of its original civil jurisdiction---High Court appeal filed against the judgment of Single Judge while exercising its appellate civil jurisdiction under S.96, C.P.C was not maintainable.

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

Nemo for Respondents.

Date of hearing: 16th May, 2003.

2003 S C M R 1524

[Supreme Court of Pakistan]

Present: Tanvir Ahmad Khan and Khalil-ur-Rahman Rmnday, JJ

JAMEELA PIR BUKHSH and others---Petitioners

Versus

APPELLATE AUTHORITY and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1957, 1958, 1959, 1960 and 1961-L of 2001, decided on 27th February, 2003.

(On appeal from the consolidated judgment, dated 9-2-2001 passed by the Lahore High Court Lahore in Writ Petitions No.981 of 1990, 983 of 1990, 2586, 2588 of 1984 and 2589 of 1984).

Administration of justice-----

----Delay in justice---Perplexity of technicalities, a major cause---Courts must not shatter the trust reposed in them by general public by involving themselves in procedural technicalities---Prime duty of the Courts is to administer substantial justice which should not only be done but also seen to have been done at the earliest---Principles.

The General Manager of the Raj Durbhunga under tie Court of Wards v. Maharajah Coomar Ramaput Singh 14 MIA 605 = 17 WR 459 = 10 BLRPC 294 = 2 Suth. PCJ 575 = 3 Sar. PCJ 117 ref.

Dr. A. Basit, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Kh. Saeed-uz-Zafar, Advocate Supreme Court with M. A. Qureshi, Advocate-on-Record for Respondent No.3 (in C.Ps. Nos. 1957 and 1960-L of 2001).

Nasim Ahmad Khan, Advocate Supreme Court for Respondent No. 3 (in C. P. No. 1959-L of 2001).

Malik Sher Bahadar, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Respondent No.3 (in C.P. No.1961-L of 2001).

Date of hearing: 27th February, 2003.

2003 S C M R 1530

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmad Khan, JJ

JAWAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.342 of 2002, decided on 7th May, 2003.

(On appeal from the judgment, dated 19-2-2002 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.320 of 1999 alongwith M.R. No.4 of 2000).

Penal Code (XLV of 1860)---

----S. 302/34---Reappraisal of evidence---Dying declaration--­Voluntariness, authenticity of---Factors---Injured was initially admitted in the hospital where his statement was taken down by the police official who, after noting his condition declared him to be in full senses--­Medical Officer on duty who attested the statement of the injured and made initial medical examination, had also categorically mentioned that he was conscious and well oriented---Courts below, therefore, had rightly found that the F.I.R. recorded by the police official was dying declaration by the deceased---Accused had not been- able to shatter the evidence of Medical Officer and author of the report namely the police official on said aspect of the case as such, its authenticity being voluntary in nature and spontaneous in character could not be doubted-­Said dying declaration had been fully corroborated by the eye-witness account furnished by the prosecution witnesses at trial---Evidence of one of the e, e witnesses could not be brushed aside on the ground that he was cousin of the deceased particularly when he was a natural eye­witness of the incident---Motive as narrated in the F. I. R. was that a few days prior to the occurrence there had occurred an altercation between the parties regarding some theft matter which resulted in the incident--­Recovery memo. showed that weapon used was recovered at the pointation of the accused and only ten empties were recovered from the place of occurrence which were sealed and sent to the Forensic Science Laboratory for comparison with the weapon used and report therefrom was positive---Contention of the accused that as per site plan 30 empties were recovered but only 10 were sent for comparison was devoid of force mainly for the reason that firstly it was not noted in the site plan that police recovered 30 empties, secondly that the site plan was not a substantive piece of evidence---Motive, recovery of empties, blood­stained earth from the spot, recovery of weapon from the accused, its positive report by the Fire-arms Expert and absence of any motive for false implication of the accused were strong circumstantial pieces of evidence to further corroborate the ocular version and the dying declaration---Prosecution having fully established its case beyond any shadow of doubt, no exception could be taken to the judgment of the High Court which who accordingly maintained in appeal by the Supreme Court.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant.

Sardar Shaukat Hayat, Additional Advocate-General for the State.

Date of hearing: 7th May, 2003.

2003 S C M R 1535

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Sardar Muhammad Raza, JJ

MUHAMMAD YOUSUF

through Legal Heirs and 2 others‑‑‑petitioners

Versus

Mst. KARAM KHATOON

through Legal Heirs and 2 others‑‑‑Respondents

Civil Petition No.2736 of 2001, decided on 14th June, 2003.

(On appeal from the order, dated 27‑6‑2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A. No.42 of 1975).

(a) Punjab Laws Act (IV of 1872)‑‑‑--

‑‑‑‑S.5‑‑‑Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951‑‑‑Provisions of S.5, Punjab Laws Act, 1872 did not exclude the application of Muslim Personal Law where tile parties were Muslim unless it could be proved that some particular custom had been prevalent in the area and among the family or tribe involved‑‑‑If any one even prior to the coming into force of Bahawalpur Shariat Application Act, 1951 relied upon any particular custom to be the rule of law, negating the Muslim Law, justice and good conscience, the burden lay heavily on that party to prove the custom‑‑‑Question of fact, in the present case, regarding prevalence of custom negating the Muslim Law had not been proved to the satisfaction of the Curt‑‑‑Mere entry in Wajab‑ul‑Arz could not be benefited if the same had not referred to any prevalent custom.

Daya Ram v. Sohel Singh 1906 Punj. Rip. 390; Mst. Qaisar Khatoon v. Maulvi Abdul Khaliq PLD 1971 SC 334 and Umer Din v. Mst. Sharifan PLD 1995 SC 686 ref.

(b) West Pakistan Muslim Personal Law (Shariat) Application of 1962)‑‑‑--

‑‑‑‑S.2‑A‑‑‑Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951‑‑‑Succession‑‑‑Principles of Muslim Law were applicable in the State of Bahawalpur even prior to the enforcement of Bahawalpur Shariat Application Act, 1951 and after 1951 the matter of inheritance in Bahawalpur State was governed by Bahawalpur Shariat at Application Act, 1951 and thereafter by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 which meant that in matters of inheritance etc. the rule of law shall always be Muslim Personal Law with retrospective effect.

Daya Ram v. Sohel Singh 1906 Punj. Rep. 390; Mst. Qaisar Khatoon v. Maulvi Abdul Khaliq PLD 1971 SC 334; Umer Din v. Mst. Sharifan PLD 1995 SC 686; Hakim Ali v. Barkat Bibi 1988 SCMR 293 and Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 ref.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑--

‑‑‑‑Ss.2‑A, 3, 4 & 5‑‑‑Succession‑‑‑Male heir who had acquired agricultural land under custom from a Muslim prior to 15th March, 1948 would be deemed to have inherited the same under Muslim Law and his heirs would be discovered in accordance with the Muslim Law‑‑‑Such heirs could be male or female‑‑‑If a female derived limited interest from any such male heir (having become absolute owner under S.2A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, she would not be able to keep land in excess of her Sharai share under Muslim Law and she will act as a conduit to pass the remaining land to the other such heirs of such a male heir‑‑‑Combined reading of SO, 4 & 5 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 read with S.2‑A of the said Act clearly showed that omission in S.2‑A of the Act of a "female" was not of much significance‑‑‑Widow, in the present case, even if deemed to be a limited owner, had inherited her Sharai share from her husband, the residue would go to her daughter (she having no son) and the collaterals‑‑‑Said daughter would be entitled even to inherit directly from her father and subsequently from her mother (the widow)‑‑‑Share of the said daughter from father would be ½ and that from mother 1/8th total amounting to 9/ 16 share in legacy of her father.

Daya Ram v. Sohel Singh 1906 Punj. Rep. 390; Mst. Qaisar Khatoon v. Maulvi Abdul Khaliq PLD 1971 SC 334; Umer Din v. Mst. Sharifan PLD 1995 SC 686; Hakim Ali v. Barkat Bibi 1988 SCMR 293 and Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 ref.

Muhammad Jaffar Hashmi, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Mian Allah Nawaz, Advocate Supreme Court for Respondents.

F.K. Butt, Advocate Supreme Court for the State.

Date of hearing: 23rd May, 2003.

2003 S C M R 1541

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

DIRECTOR INTELLIGENCE and others---Petitioners

Versus

Messrs APEX INTERNATIONAL BUSINESS, FAISALABAD and others--Respondents

Civil Petitions for Special Leave to Appeal Nos. 1046-K, 1047-K, 1048-K, 1049-K and 2044 of 2002, decided on 23rd January, 2003.

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 32, 156(1)(8)(77), 157(2), 171 & 179---Customs General Order No. 15 of 1989 and Customs General Order No. L of 1994--­Constitution of Pakistan (1973), Art. 185(3)---Goods in transshipment--­Unauthorized desealing and unloading of goods---Goods imported in Pakistan were in trans-shipment to dry port when on spy information raids were conducted and the goods were recovered from unauthorized places and the same were taken into custody by Customs Authorities---Leave to appeal was granted by Supreme Court to examine the question of jurisdiction of Customs Authorities at the port of entry to detain the goods imported for trans-shipment.

Famous Corporation v. Collector of Customs 1989 MLD 2322; M. Hameedullah Khan v. Director of Customs Intelligence 1992 CLC 57; C.P. No.1016 of 1999 and Messrs Baba Khan v. Collector of Customs, Quetta 2000 SCMR 678 ref.

Akhtar Hussain, Advocate Supreme Court for Petitioner (in C. Ps. Nos. 1046 to 1049 of 2002).

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.2014 of 2002).

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in C.Ps. Nos.1046 to 1048 of 2002):

Muhammad Shamim, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in C.P. No.1049 of 2002).

Akhtar Hussain, Advocate Supreme Court for Respondents (in C.P. No.2044 of 2002).

Date of hearing: 23rd January, 2003.

2003 S C M R 1547

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and another---Petitioners

Versus

ABID AKHTAR and others---Respondents

Civil Petition for Leave to Appeal No.382-K of 2001, decided on 2nd December, 2002.

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

----S.9---Agricultural Development Bank of Pakistan Ordinance (IV of 1961), S.25---West Pakistan Land Revenue Act (XVII of 1967), Ss. 79 & 80---Bank dues disputed by borrower---Recovery as arrears of land revenue---Scope---Bank could not be equated with a proper judicial forum for determination of amount due against borrower, though under law having summary power of recovery of amount due---In event of substantial dispute between parties, procedure of recovery of amount by way of land revenue arrears would be available only where amount claimed was found due, ascertained and determined by a competent judicial forum.

Agricultural Development Bank of Pakistan v. Sanaullah Khan PLD 1988 SC 67; Abdul Latif v. Government of West Pakistan PLD 1962 SC 384; ARK Ocean Lines Ltd. v. Director of Industries and Mineral Development PLD 1976 Kar. 610; Hussain Ali v. Government of Pakistan 1989 MLD 4721; Grain System (Pvt.) Ltd. v. A.D.B.P. 1993 MLD 1031; Abdul Karim v. Province of Sindh 2001 MLD 69 and Raj Kumar v. National Bank of Pakistan 1994 CLC 206 rel.

Syed Ishrat Hussain Rizvi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Petitioners.

Abrar Hassan, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 2nd December, 2002.

2003 S C M R 1551

[Supreme Court of Pakistan]

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

ABDUL FATEH BABAR SANI---Petitioner

Versus

Mst. NAUREEN and another---Respondents

Civil Petition No.309-K of 2000, decided on 24th May, 2001.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Arts. 185(3) & 199--­Constitutional petition---Dissolution of marriage by Khula---Restitution of conjugal rights---Family Court decreed wife's suit, but dismissed husband's suit---High Court upheld both judgments---Validity---Wife would be entitled to have dissolution of marriage on ground of Khula`, if she had made out a case under law---Husband would be entitled to restitution of conjugal rights, if he had proved his case for such rights--­Family Court after properly appreciating evidence on record had come to the conclusion that wife was entitled to dissolution of marriage on ground of Khula, while husband was not entitled to restitution of conjugal rights---Family Court and High Court had concurred findings of fact, wherein no misreading or non-reading of evidence was found--­Apprehension of husband that life and future of his son would be spoiled, could not be considered in law to be a val;d ground for reversing impugned judgments---Wife before Supreme Court refused to live with husband on the ground his being cruel to her and that she would not live with him within limits of God, thus, there was no need to give parties further chance for reconciliation---Supreme Court dismissed petition and refused leave.

M. Zaki Muhammad, Advocate Supreme Court for Petitioner.

Qazi Khalid Ali, Advocate Supreme Court for Respondents.

Date of hearing: 24th May, 2001.

2003 S C M R 1553

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Syed Deedar Hussain Shah, JJ

NASIR HAMID QURESHI---Petitioner

Versus

Mst. ABBASI BEGUM and others---Respondents

Civil Petition for Leave to Appeal No.958-K of 2002, decided on 3rd December, 2002.

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

----S. 14---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlady---Landlady being of age of more than 60 years through notice required tenant to vacate premises within 60 days--­Contention of tenant was that such demand could only be made after expiry of clear 60 days from receipt of the notice ---Validity--­Proceedings for ejectment of tenant had been initiated after expiry of two months---No prejudice, thus, had been caused to the tenant--­Technicalities could not be resorted to the extent of defeating the process of justice---Two Courts below and High Court through concurrent findings had upheld the demand of landlady---Supreme Court dismissed petition and refused leave.

(b) Administration of justice---

---- Technicalities cannot be resorted to the extent of defeating the process of justice.

Petitioner in person.

Akhter Hussain, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.

Date of hearing: 3rd December, 2002.

2003 S C M R 1555

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Mst. HAJRAN BIBI and others---Petitioners

Versus

SULEMAN and others---Respondents

Civil Petition No. 1775-L of 1999, decided on 16th January, 2003.

(On appeal from the judgment, dated 27-9-1999 passed by the Lahore High Court, Lahore, in R.S.A. No.898 of 1979).

Contract Act (IX of 1872)----

----S. 202---Transfer of Property .Act (IV of 1882), S.53-A--­Constitution of Pakistan (1973), Art. 185(3)---Irrevocable power of attorney---Interest of attorney in property---Delivery of possession in part performance of contract---Entire consideration amount was paid by the attorney regarding suit-land together with Government dues--­ Registered general power of attorney was executed in favour of the attorney coupled with interest---Effect---Such power of attorney was irrevocable by virtue of provisions of S.202 of Contract Act, 1872--­ Possession of suit property with the attorney was also protected by the provisions of S.53-A of Transfer of Property Act, 1882---Substantial justice having already been done by Appellate Court and High Court between the parties, therefore, judgment passed by High Court did not call for interference by Supreme Court on hyper-technical grounds divorced from equity and justice---Leave to appeal was refused.

Malik Riaz Ahmad and others v. Mian Inayat Ullah and others 1992 SCMR 1488; Mst. Feroze Band and another v. Mst. Bilqis Jehan and others 1987 SCMR 1009; Fida Muhammad v. Pir Muhammad Khan through Legal Heirs PLD 1985 SC 341; Mst. Zakia Begum through Legal Heirs v. Niaz Ahmad 1999 MLD 3156; Muhammad Dino and 9 others v. Mst. Absar Fatima and others 1996 CLC 1979 and Syed Shafique Hussain v. Syed Abul Qasim PLD 1979 Kar. 22 ref.

Taki Ahmad Khan, Advocate Supreme Court for Petitioners.

S.M. Masood, Senior Advocate Supreme Court for Respondents.

Date of hearing: 16th January, 2003.

2003 S C M R 1558

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. C. J.

ABDUL JABBAR and others---Petitioners

Versus

FAZAL ELAHI BUTT and others---Respondents

Civil Miscellaneous Applications Nos. 1168-L of 2002 in Civil Petition No.2546-L of 2002, Civil Miscellaneous Applications No.1169-L of 2002 in Civil Petition No.2430 of 2002 and Criminal Miscellaneous Application No.43-L of 2002 in Criminal Petition No.589-L of 2002, decided on 31st July, 2002.

Constitution of Pakistan (1973)---

----Art. 185(3)---Election dispute---Constitutional jurisdiction of Supreme Court---Interim relief, grant of---Principle---High Court in exercise of Constitutional jurisdiction ordered for fresh polling--­Petitioners assailed the order of High Court and had sought suspension of the same---Validity---Grant of interim relief as prayed for would amount to grant of main relief claimed in the main petitions---Supreme Court refrained from passing such order so that it might not be taken as an expression of opinion on merits which might ultimately prejudice any of the parties while deciding the main petition---Supreme Court observed that as no restraint order had been passed in the petition, therefore, Election Commission was not in any manner barred for holding the election as directed by High Court---Applications were disposed of accordingly.

M. Farooq Qureshi, Advocate Supreme Court for Petitioners.

Nawab Saeedullah Khan, Advocate Supreme Court for Respondent.

Date of hearing: 31st July, 2002.

2003 S C M R 1560

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

IFTIKHAR ALI ---Petitioner

Versus

Sh. ABDUL RASHID and others---Respondents

Civil Petition No.796-L of 2002, decided on 20th March, 2002.

Limitation Act (IX of 1908)---

----Ss. 5 & 12---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15---Constitution of Pakistan (1973), Art. 185(3)---Condonation of delay---Time spent for obtaining attested copy of judgment ---Non­ production of receipt issued by copying branch---Appeal was dismissed by High Court being barred by limitation---Application for attested copy of the judgment passed by Appellate Court was filed on 25-1-2001, copy was prepared on 8-11-2001, and the same was delivered to petitioner on 27-12-2001---Plea raised by the petitioner was that for the purpose of computation of period of limitation, the period upto date of delivery was to be excluded---Validity---Petitioner failed to disclose as to the date which was indicated to the petitioner on the chit issued by the copying agency to obtain certified copy because that would have been the determining factor---Originally in routine date was indicated by the copying agency on the chit on which date the petitioner was required to inquire from the agency about the readiness of the copy---If the copy was not ready on the date mentioned on the chit, then the question would have arisen whether further notice should be given to the petitioner or not---No such date having been mentioned by the petitioner, Supreme Court declined to interfere with the judgment passed by High Court--­Leave to appeal was refused.

Sh. Anwarul Haq, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate-on-Record for Petitioner.

Respondent No. 1 in person.

Date of hearing: 20th March, 2002.

2003 S C M R 1562

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ZULFIQAR ALI ---Petitioner

Versus

SUPERINTENDENT OF POLICE and others---Respondents

Civil Petition No. 1548 of 2002, decided on 16th December, 2002.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 15-2-2002, passed in Appeal No.634 of 2001).

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

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Opinion of officer not appointed as Inquiry Officer-Civil servant, on charge of embezzlement and after conducting departmental inquiry, was dismissed from service---Appellate Authority appointed another officer as Inquiry Officer and new inquiry was conducted--­Second Inquiry Officer exonerated the civil servant of the charges--­Appellate Authority appointed another officer to examine that report of the second Inquiry Officer and on the recommendation of other officer, civil servant was dismissed from service---Service Tribunal maintained the order of dismissal passed by the Authorities---Plea raised by the civil servant was that the other officer on whose recommendation, he was dismissed from service was not a duly appointed Inquiry Officer--­Validity---Such other officer was not appointed as Inquiry Officer but was deputed to examine the report of the Inquiry Officer alongwith the record to assist the Appellate Authority for proper disposal of appeal pending before him from the Department side---Report made by the other officer pointed out the material and the evidence available on record which was not taken into consideration, by the second Inquiry Officer who had exonerated the civil servant---By taking into consideration the evidence and material pointed out by the other officer in his report while deciding the, appeal, the Appellate Authority had not committed any illegality---Appellate Authority was fully competent to overrule findings of second Inquiry Officer on the ground that the same were suffering from non-reading or misreading of record---Findings of facts recorded by Departmental, Authorities and those recorded by the Tribunal as well in appeal did not suffer from any illegality---Leave to appeal was refused.

Ahmad Awais, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th December, 2002.

2003 S C M R 1565

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

FAQIR HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.76 of 2001, decided on 17th October, 2002.

(On appeal from the judgment, dated 12-4-2001 of the Lahore High Court in Criminal Appeal No.204 of 1995 and Murder Reference No.50 of 1996).

Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan (1973), Art. 185(3)---Sentence, reduction in---Eye-witnesses were consistent on all material points and their unanimous depositions rang true---Complainant who was father of both the deceased as well as the injured, could not tell a lie with regard to the involvement of the culprits responsible for the death and injuries of his sons, nor he could be expected to let the real culprit scot-free and substitute the accused---Presence of tote injured witness at the scene of occurrence could not be doubted or disputed in any manner---Ocular testimony stood squarely corroborated by medical evidence and motive--­Conviction of accused was maintained in circumstances---Accused being a young boy had acted under the influence of his father and in such-like cases the extreme penalty of death could not be imposed---Sentence of death of accused was altered to imprisonment for life accordingly with enhancement of the amount of compensation from Rs.20,000 to Rs.50,000 to be paid by him---Benefit of S.382-B, Cr.P.C. was declined to the accused.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 17th October, 2002.

2003 S C M R 1568

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ASIM---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.563-L of 2001, decided on 12th June, 2002.

(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 19-7-2001 passed in Criminal Appeal No.81 of 1998/BWP and Murder Reference 21 of 1999).

Penal Code (XLV of 1860)---

----S. 302/34---Constitution of Pakistan (1973), Art. 185(3)---Eye­witnesses were natural and independent witnesses of the incident having no enmity or grudge for making a false statement against the accused--­Evidence of recovery of blood-stained earth from the place of occurrence, recovery of blood-stained hatchet from the accused, motive relating to the illicit connection of the deceased with the sister of accused and the medical evidence had sufficiently corroborated the eye-witness account---Judgments of both the Courts below did not suffer from any defect of misappreciation of evidence---Accused instead of taking the life of the deceased on the pretext of saving the honour of his family could restrain him from involving in such activities in a civilized manner and in any case mere raising suspicion by the accused of illicit relation of the deceased with his sister, would not be a matter of family honour--­Accused with pre-planning had trespassed into the house of the deceased during the night and committed his murder in brutal manner to satisfy his ego---Accused, therefore, did not deserve lesser punishment---Conviction and sentence of accused were maintained in circumstances and leave to appeal was declined to him accordingly.

A.H. Gilani, Advocate Supreme Court and Syed A. Asim Jafri, Advocate-on-Record (absent) for Petitioner.

Dil Muhammad Tarrar, Advocate Supreme Court for the State.

Date of hearing: 12th June, 2002.

2003 S C M R 1576

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

MUHAMMAD ASLAM---Appellant

Versus

ADDITIONAL COMMISSIONER (REVENUE), GUJRANWALA and 5 others---Respondents

Civil Appeal No.88 of 1997, decided on 14th May, 2003.

(On appeal from the judgment, dated 13-2-1996 of the Lahore High Court, Lahore passed in Writ Petition No.60-R of 1995).

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

----S.10---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court to consider as to whether the shops in question were constructed and owned by an evacuee and as such were evacuee properties.

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

----S.2(2)---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Concurrent findings of fact recorded by Notified Officer and the High Court were that the shops in dispute were non­ evacuee property and were constructed on the land owned by a Muslim which was leased to the evacuee for 20 years who constructed the shops thereon and the said lease expired in 1952---Contention that the land in question was purchased through registered sale-deed by the evacuee and shops were constructed by him on the said land could not be established on record and was merely speculative being without any substance--­Supreme Court declined interference with the concurrent findings of fact recorded by the Notified Officer and that of the High Court---Such findings could only be interfered with if the same were found illegal, contrary to the record or where gross miscarriage of justice had occurred due to non-reading or non-appraisal of evidence.

Ch. Hafeez Ahmad, Advocate Supreme Court for Appellant.

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

Date of hearing: 29th April, 2003.

2003 S C M R 1580

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

KHADIM HUSSAIN ---Petitioner

Versus

NASIR AHMAD---Respondent

Civil Petitions Nos.365-L and 366-L of 2003, decided on 1st April, 2003.

(For leave to appeal from judgment, dated 20-1-2003 passed by the Lahore High Court, Lahore, in S.A.Os. Nos.89 and 90 of 2001).

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

----S.13(6)---Failure of tenant to comply with the order of the Rent Controller under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959 to deposit the monthly rent by the due date--­Consequences---Once the default in the compliance of order of Rent Controller under S.13(6) of the Ordinance was established, the penal consequences in the shape of striking off defence of the tenant and putting landlord in possession of the property were to follow without taking any further proceedings---Exception to such consequences would be, available where a non-compliance of the order of the Rent Controller was made for reasons beyond the control .of a tenant or for other sufficient cause, justifying that the time for such a deposit of rent might be excluded by the Rent Controller---Rent Controller, for the purpose of passing the order under S.13(6) of the Ordinance, was not required to determine quantum of rate of rent finally if the same was in dispute--­Security amount could not be used by the Court for absolving the tenant from liability of eviction for non-compliance with the order of deposit and the default remained intact notwithstanding the security amount.

Ordinarily, once the default in the compliance of order of Rent Controller under section 13(6) of the Ordinance is established, the penal consequences in the form of defence of the tenant being struck off and the landlord being put into possession of the property by order of the Rent Controller are to follow without taking any further proceedings. It is in a very exceptional case, where a non-compliance of the order of the Rent Controller is made for reasons beyond the control of a tenant or for other sufficient cause that the time for such a deposit of rent is extended by the Rent Controller.

The Rent Controller, on coming to know that default had been committed, had no discretion in the matter but to strike off defence when the tenant had failed to explain the default in compliance of the order of the Rent Controller.

A default under subsection (6) of section 13 of the Ordinance was of a peculiar nature which distinguished it from the default in payment of rent relatable to other provisions of section 13 of the Ordinance.

The security amount could not be used by the Court for absolving the tenant from liability of eviction for non-compliance with the order of deposit and the default remained intact notwithstanding the security amount.

The Rent Controller, for the purpose of passing the order under section 13(6) of the Ordinance, 1959, was not required to determine quantum or rate of rent finally if same was in dispute. The consequence of non-compliance of order under section 13(6) of the Ordinance, 1959, was the summary disposal of case, without taking any further proceedings, by striking off defence and passing order of eviction.

The words "before fifteenth day of each month" in section 13(6) of the Ordinance were interpreted to mean "exclusive of the last day of fifteenth of the month". It was further held that the deposit of rent on fifteenth of calendar month constituted non-compliance with Controller's order under section 13(6) of the Ordinance.

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

----S.13(6)---Scope of S.13(6) of the Ordinance.

Having regard to the language of section 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959, one finds it difficult to accept that the Legislature intended to leave it so the discretion of the Rent Controller to decide whether he would or would not, in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realizing the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under a certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available nor the other party be deprived of his rights under the law.

But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this subsection. It will still be necessary for the Court to decide in each case as to whether there, in fact, been a default.

Non-compliance which is avoidable cannot possibly be excused. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way, responsible.

The word "default" in legal terminology necessarily imports an element of negligence or fault ant means something more than mere non-compliance. To establish default one must show that the non­compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature- has made its intention clear, that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word "default" should mean an act done in breach of a duty or in disregard of an order or direction.

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

----S.13(6)---Words "before fifteenth day of each month" in S.13(6) of the Ordinance---Meaning---Deposit of rent on the fifteenth of calendar month constituted non-compliance, with Rent Controller's Order under S.13(6) of the Ordinance.

Mansoor-ur-Rehman Khan Afridi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in both Petitions).

Ch. Muhammad Rafique Warraich, Advocate Supreme Court and Mian Atta-ur-Rehman, Advocate-on-Record for Respondents (in both Petitions).

Date of hearing: 6th March, 2003.

2003 S C M R 1588

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Haji NISAR AHMED ---Appellant

Versus

MUHAMMAD MURAD and another---Respondents

Criminal Appeal No. 160 of 2001, decided on 6th May, 2003.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 7-2-2000, passed in Criminal Appeal No.13/1989/13WP and Murder Reference No. 4 of 1998).

Penal Code (XLV of 1860)---

----Ss.302/392/34---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal---Story put forward by the complainant did.not appear to be sound, convincing or plausible; contention of the defence that some columns of the Inquest Report were left blank and were not filled in, was supported through evidence of prosecution witness, who on oath before the Trial Court, deposed the same; direction from which the accused persons came and fired at the deceased, was not mentioned, which got support from the evidence of prosecution witness on oath before the Trial Court; incident had taken place at 7-30 p.m. and during the relevant days sun used to set at 6-10 p.m. as such darkness had prevailed, therefore, the possibility of wrong identification of the assailants could not be ruled out; medical report had shown that rupture of right lung alongwith rupture pulmonary vessels were sufficient to cause death, besides that medical evidence did not corroborate ocular account; had the deceased been fired at from a distance mentioned by the prosecution witness, there should have been blackening and tattooing around the wounds; finding of the Trial Court was not based on the proper appreciation of evidence rather the medical evidence belied the same; prosecution witnesses were closely related to the deceased and there was no independent corroboration to their testimony, nor there was circumstantial evidence to connect the accused persons with the commission of offence and the motive was not proved---Recovery memos. and inquest report clearly showed that they were prepared after deliberation and consultation wherein the names of accused persons were not mentioned and report of the Serologist was also not tendered according to Qanun-e-Shahadat--­Conviction on capital charge could be passed only on unimpeachable ocular, account, which lacked in the present case---Inferences drawn by the High Court were based on proper evaluation of evidence and there was nothing to indicate that the view taken by the High Court was either absurd or perverse or that the same was based on misreading of evidence or that any important factor in the case had been overlooked--­Findings of fact therefore did not warrant interference by the Supreme Court---Appeal against acquittal was dismissed in circumstances.

Jafar Ali v. The State 1998 SCMR 2669; Umar Hayat v. Jahangir and, another 2002 SCMR 629 and Jan Muhammad v. Muhammad Ali 2002 SCMR 1586 distinguished.

Thoba v. State PLD 1963 SC 40; Bashir Ahmad v. Muhammad Azam PLD 1969 SC 469; Bagh Ali v. The State PLD 1973 SC 321; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 and Muhammad Yaseen v. The State 2003 SCMR 231 ref.

Aftab Farrukh, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Appellant.

M.A. Zafar Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents Nos. 1 and 2.

Ms. Afshan Ghazanfar, Advocate Supreme Court for the State.

Date of hearing: 6th May, 2003.

2003 S C M R 1597

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

Criminal Appeal No 249 of 2001

NAWAZUL HAQ CHOWHAN---Appellant

Versus

THE STATE and others---Respondents

(On appeal from the judgment, dated 16-5-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.806 of 1995). , Criminal Appeal No 286 of 2001

Ch. MUHAMMAD ASIF---Appellant

Versus

THE STATE and another---Respondents

Criminal Petition for Leave to Appeal No. 167 of 2001

Malik ANJUM FAROOQ PARACHA---Petitioner

versus

IKRAM UL HAQ and 5 others---Respondents.

Criminal Appeal No 553 of 1994

Malik ANJUM FAROOQ PARACHA and 7 others---Appellants

Versus

MANZOOR UL HAQ CHOHAN and another---Respondents

(On appeal from the judgment dated 9-4-1994 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in I.C.A. No. 7 of 1993).

Criminal Appeals No.249 and 286 of 2001 Criminal Petition No.167 of 2001 and Civil Appeal No.553 of 1994, decided on 9th May, 2003.

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

----Art.185---Appeal against acquittal ---Interference---Considerations--­Considerations for interference in an appeal against acquittal and an appeal from conviction are altogether different---Judgment of acquittal can only be interfered with if it is found on the face of it, illegal, perverse, capricious, artificial, ridiculous, speculative and based on misreading or. non-appraisal of the evidence on record and that too, with a view only to avoid grave miscarriage of justice---Supreme Court, in order to come to a proper conclusion has to glance in detail on the findings of acquittal recorded by the Trial Court and that of conviction by the Appellate Court in the light of prosecution evidence adduced at trial and defence pleas raised---High Court, in the present case, had advanced cogent reasons declaring the judgment of acquittal as speculative, arbitrary, perverse, contrary, adverse in nature and based on misreading and non-appraisal of evidence---Judgment of High Court was maintained by the Supreme Court.

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

----S.3(1)(2)---Constitution of Pakistan (1973), Art. 199---Word "proceedings" mentioned in S.3(1), proviso of the Law Reforms Ordinance, 1972 did not include "F.I.R."---Intra-Court appeal against the order of Single Judge of the High Court passed in Constitutional jurisdiction under Art. 199 of the Constitution quashing the F.I.R., was not maintainable.

Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Settlement Commissioner (L) and others v. Mauj-Din and others 1989 SCMR 1351 ref.

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

Ch. Arshad Ali, Advocate Supreme Court for Respondent No. 1 (in both Criminal Appeals).

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Respondent No.2 (in both Criminal Appeals).

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court instructed by M. A. Zaidi, Advocate-on-Record for Petitioner (in Criminal Petition for Leave to Appeal No. 167 of 2001).

Nemo for Respondents (in Criminal Petition for Leave to Appeal No.167 of 2001).

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Appellants (in Civil Appeal No.553 of 1994).

Khawaja Sultan Ahmad, Senior Advocate Supreme Court for Respondent No. 1 (in Civil Appeal No.553 of 1994).

Ch Arshad Ali, Advocate Supreme Court for Respondent No. 2 (in Civil Appeal No.553 of 1994).

Date of hearing: 25th March, 2003.

2003 S C M R 1611

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Mian AHMAD SAEED and others---Appellant

Versus

ELECTION TRIBUNAL FOR KASUR AT OKARA and 7 others---Respondents

Civil Appeals Nos.583, 592, 751 and 1191 of 2002, decided on 20th June, 2003.

(On appeal from the order/judgment of Lahore High Court, Lahore, dated 28-2-2002 passed in W.Ps. Nos.1774 of 2002, 1714 of 2002 (906 of 2002) and judgment of High Court of Sindh, dated 17-5­2002, passed in Constitutional Petition No. 357 of 2002 and Lahore High Court judgment, dated 13-8-2002 in Writ Petition No.12660 of 2002 respectively).

(a) Punjab Local Government Elections Ordinance (V of 2000)-----

----S.14(1)---Punjab Local Government Elections Rules, 2000, R.16(4)--­Constitution of Pakistan (1973), Art. 185(3)---Qualification for candidates and elected members---Leave to appeal was granted by the Supreme Court to consider whether in case that the Nazim was declared to be disqualified to contest election on an election petition, the election of the Naib Nazim could also be declared void and that whether in case that a person contested election for the post of Nazim with Naib Nazim in panel and after the election of his opponent having been declared to be invalid on account of being disqualified, he should have been declared as elected as a returned candidate whereas, in .the present case, the Election Tribunal had ordered re-election.

(b) Punjab Local Government Elections Ordinance (V of 2000)-----

----S.14(1)---Punjab Local Government Elections Rules, 2000, R.16(4)--­Qualifications of candidates and elected members---Election of panel of Nazim and Naib Nazim---Contentions were that non-inclusion of certain property in the declaration made by the candidate was not such a matter on which his election could be declared invalid; that this was not such a disqualification to which principle of throw away of votes could be applied and that even if one of the candidates of the panel was not validly elected, the election of second candidate of the panel who was not responsible for the personal act of the said disqualified candidate, could not be declared invalid---Leave to appeal was granted by the Supreme Court to consider the contentions.

(c) Punjab Local Government Elections Ordinance (V of 2000)-----

----Preamble---Punjab Local Government Elections Rules, 2000, Preamble---Scheme of law stated with special mention of election of Nazim and Naib Nazim as joint candidates.

The elections of the local bodies in all the four Provinces were held in the supervision of Chief Election Commissioner of Pakistan under the Local Government Elections Ordinances, 2000 and the Rules framed thereunder. The elections for the seat of Zila Nazim, Naib Zila Nazim, Town Nazim, Naib Town Nazim, Tehsil Nazim and Naib Tehsil Nazim, Union Council Nazim and Naib Union Council Nazim were held on the basis of joint candidacy and the joint candidates in the panel securing highest position with more than 50% of the total votes would be declared elected. If the panel securing first position has not been able to get more than 50% of the total votes, the election would be declared run off in which case the two panels securing first and second positions would contest the election and the panel securing highest number of votes in the run off election would be declared elected. The election of a returned candidate could be Called in question by any contesting candidate through an election petition before the Election Tribunal appointed under the Local Government Elections Rules, 2000 framed under Local Government Elections Ordinance, 2000 on any ground mentioned in the rules, including the invalidity of nomination of a returned candidate. The Election Tribunal in exercise of its powers under the rules may, upon the conclusion of the proceedings in the election petition, dismiss the petition, declare the election of returned candidate void or declare the petitioner in the election petition or any other contesting candidate to have been duly elected or declare the election as a whole void. The Tribunal on coming to the conclusion that the nomination of returned candidate was invalid or he was not qualified to contest the election and hold the office of Nazim or Naib Nazim or that the election of the returned candidate was procured or induced by illegal practice, could declare his election void. The law made applicable to the election of the local bodies provided that election for the seat of Nazim and Naib Nazim shall be held on the basis of joint candidacy and in case of rejection of nomination of either of Nazim or Naib Nazim in a panel, the nomination as a whole for both' the joint candidates shall stand rejected.

(d) Punjab Local Government Elections Ordinance (V of 2000)---

----Ss.16 & 14---Punjab Local Government Elections Rules, 2000, Rr.16(4) & 18---Joint candidacy ---Concept---Procedure---Disqualification attached to the candidate on the nomination day would not disappear after the election, therefore, the defect of invalid nomination being not consequently, curable, the view that Election Tribunal would not be competent to declare the election of joint candidates as a whole void on a ground on the basis of which their nomination as a whole could be rejected, would be based on misconception of law and being contrary to the legislative intent, would nullify the concept of joint candidacy.

The concept of joint candidacy was introduced in the local bodies election to educate the spirit of collective efforts and joint responsibility. The election on the basis of joint candidature and rule of rejection of nomination of joint candidates as a whole is based on the doctrine of sinker which is a rule of pre-emption law. This rule is that if a person having superior right of pre-emption joins himself with a stranger or an inferior pre-emptor, he shall lose his superior right of pre­emption and is not allowed even to retain his own share in the purchase if a suit-for pre-emption is brought against the sale. The salient feature of the system of joint candidacy is that the candidates for the seats of Nazim and Naib Nazim in the local bodies must contest the election as joint candidates and rejection of nomination of any one of the candidates, is rejection of nomination of both the joint candidates. Therefore they must possess the statutory qualifications individually and collectively on the n6mination day and lack of any such qualification of any one would invalidate their nomination jointly. The joint candidates for the seat of Nazim and Naib Nazim must share the fate of election with each other in the matters of -disqualification, invalid nomination and the result of election in the form of success or defeat. In the system of joint candidacy, the candidates file their nomination papers individually but the validity or invalidity of their nomination is essentially determined jointly and in consequence to the rejection of nomination of any one for any disqualification, the nomination of other shall automatically stand rejected and in the light of same rule of joint responsibility their election can be declared void as a whole on the ground that on the nomination day their nomination was invalid. The disqualification attached to the candidate on the nomination day would not disappear after the election, therefore, the defect of invalid nomination being not consequently, curable, the view that the Election Tribunal would not be competent, to declare the election of the joint candidates as a whole void on a ground on the basis of which their nomination as a whole could be rejected, would be based on misconception of law and being contrary to the legislative intent, would nullify the concept of joint candidacy.

In the system of joint candidacy, the candidates for the seat of Nazim and Naib Nazim in the local bodies must contest election as joint candidates and to win the election, it is necessary to secure more than 50% of the total votes in the constituency and if none of the panel of joint candidates succeeds in achieving the target, it shall be declared run off election and in case of run off election, the Chief Election Commissioner shall notify the programme for fresh election in which the joint candidates securing the first and second position, are the contestants and the panel securing first position in the fresh election is declared successful.

The nomination papers for the seat of Nazim and Naib Nazim of the Union Council, Zila Council and Town Council would be filed by the joint candidates in the manner as provided in the rule and the scrutiny of nomination papers was to be conducted in the manner as provided in rule 18 of the Election Rules.

The nomination of a candidate could be rejected by the Returning Officer on any ground mentioned in sub-rule (3) of rule 18 and in case of rejection of nomination of a candidate either for the seat of Nazim or Naib Nazim as joint candidates, the nomination as a whole for both the joint candidates would stand rejected.

(e) Punjab Local Government Elections Rules, 2000---

----Rr.80, 79 & 81---Sindh Local Government Elections Rules, 2000, Rr.81, 80 & 82---Filing of election petition and trial thereof ---Procedure --Election Tribunal under the Rules was empowered to declare the election of a returned candidate void if his nomination was invalid or on the nomination day, he was not qualified or was disqualified to be elected as a Member, Nazim or Naib Nazim or that the election of returned candidate was procured or induced by any corrupt or illegal practice.

The procedure for filing an election petition before the Election Tribunal appointed by the Chief Election Commissioner and its trial in the manner of the trial of the civil suits by the Civil Court under Code of Civil Procedure is given in Chapter X of the Election Rules. The 'Election Tribunal, upon conclusion of the proceedings in the election petition may pass any order in terms of Rules 80 and 81 of the Punjab and Sindh Elections Rules, 2000 respectively.

In case of recrimination, the procedure provided in rule 79 of Punjab Elections Rules and rule 80 of Sindh Elections Rules would be followed.

The election of a returned candidate can be declared void by the Election Tribunal on any ground mentioned in rule .81 of the Punjab Local Government Elections Rules, 2000 and rule 82 of the Sindh Local Government Elections Rules, 2000.

The Tribunal under the above rules is empowered to declare the election of a returned candidate void if his nomination was invalid or on the nomination day, he was not qualified or was disqualified to be elected as a Member or Nazim or Naib Nazim or that the election of returned candidate was procured or induced by any corrupt or illegal practice.

(f) Punjab Local Government Elections Ordinance (V of 2000)---

----Ss.16 & 14(1)---Punjab Local Government Elections Rules, 2000, Rr.16(4), 18, 79 & 80---Joint candidacy in case of election of Nazim and Naib Nazim---Rejection of nomination of any one of the joint candidates­--Declaration of election of a returned candidate as void on the ground that his nomination was invalid or he was suffering from a disqualification on the nomination day---Pre-election disqualification invalidating the nomination of a candidate, a valid ground for declaring the election of the returned candidate void in the election petition---Joint candidates to face the consequence of the disqualification of any one of them and both are equally affected by the result of election petition.

The distinguishable features of the election of local bodies were as under:--

(a) the election for the seat of Nazim and Naib Nazim must be contested in the panels as joint candidates following the rule of joint candidacy;

(b) the rejection of nomination of any one of the joint candidates, shall be rejection of nomination of both the candidates;

(c) the election of a returned candidate can be declared void on the ground that his nomination was invalid or he was suffering from a disqualification on the nomination day;

(d) the election of local bodies is based on the concept of joint responsibility and the pre-election disqualification invalidating the nomination of a candidate shall be a valid ground for declaring the election of the returned candidate void in the election petition;

(e) the joint candidates must jointly face the consequence of the disqualification of any one of them and both shall equally be affected by the result of election petition.

(g) Punjab Local Government Elections Ordinance (V of 2000)---

----Ss.16 & 14(1)---Punjab Local Government Elections Rules, 2000, Rr.16(4), 18, 79 & 80---Joint candidacy---Election of Nazim and Naib Nazim---Expression "returned candidate" used in Chap. X of the Punjab Local Government Elections Rules, 2000 if read in context of S.16, Punjab Local Government Elections Ordinance, 2000 and R.18 of the Punjab Local Government Elections Rules, 2000 the same would connote the meanings of "returned candidates" ---Order of Election Tribunal declaring the election of a returned candidate void due to the defect of invalidity of nomination would not be confined to an individual candidate, rather the nomination of the joint candidates in the panel becoming invalid, the order would be applicable to them jointly and on the basis of rule of collective responsibility in the system of joint candidacy, returned candidate must face the consequences of the disqualification and invalid nomination of his co-candidate in the panel before and after the election---Principles.

The expression returned candidate' used in Chapter X of the Election Rules, if is read in context to section 16 of Elections Ordinance and rule 18 of the Elections Rules read with section 154 of Punjab and Sindh Local Government Ordinances, 2001, it shall connote the meanings ofreturned candidates'. It is manifest from the statutory provisions referred above that the order of Tribunal declaring the election of a returned candidate void due to the defect of invalidity of nomination would not be confined to an individual candidate, rather the nomination of the joint candidates in the panel becoming invalid, the order would be applicable to them jointly. This is correct that subsequent to the election, a returned candidate certainly would not be responsible for the acts and deeds of his companion not related to the election and as holder of elective office would definitely be answerable to his own acts and deeds but on the basis of rule of collective responsibility in the system of joint candidacy, he must face the consequence of the disqualification and invalid nomination of his co-candidate in the panel before and after the election. This is well known rule of interpretation of statute that the clear intention of Legislature cannot be defeated by the application of rule of construction and no provision in the statute can be held redundant in the intent of Legislature. The general provisions in the statute shall follow the specific provisions but if there is no specific provision, obviously the general provisions will be construed in the light of clear intention of the statute. It is settled, law that the rules framed under a statute cannot override the provisions of the statute and the same cannot be interpreted in a manner in which a substantive provision of the main statute becomes ineffective and redundant. The rule of ejusdem generis is a general rule of interpretation which is hardly applicable where the intention of the Legislature in a statute is otherwise clear. The application of this rule in interpreting the words in the statute without considering the nature of special and the general words and the purpose with reference to which, the general words can be intended to restrict, is not proper and thus interpretation of provisions of a statute on the strength of rules framed thereunder on the basis of rule of ejusdem generic, which is not a law but rule of interpretation, would amount to undo the substantive law. The interpretation of the clear provisions in the substantive law on the basis of rule of construction and restricting the provisions of the statute to the particular rule would reduce the scope of said provision and defeat the very purpose of legislation on the subject. In the light of the rule of interpretation of words in the statutes that singular number. may include the plural number and vice versa, the word returned candidate' used in Chapter X of the Election Rules would be read asreturned candidates' with reference to the substantive provisions in the Election Ordinance.

(h) Interpretation of statutes---

---- Clear intention of Legislature cannot be defeated by the application of rule of construction.

(i) Interpretation of statutes---

---- General provisions in the statute shall follow the specific provisions.

(j) Interpretation of statutes---

---- Ejusdem generis, rule of---Applicability---Scope.

The rule of ejusdem generis is a general rule of interpretation which is hardly applicable where the intention of the Legislature in a statute is otherwise clear. The application of this rule in interpreting the words in the statute without considering the nature of special and the general words and the purpose with reference to which, the general words can be intended to restrict, is not proper and thus interpretation of provisions of a statute on the strength of rules framed thereunder on the basis of rule of ejusdem generis, which is not a law but rule of interpretation, would amount to undo the substantive law. The interpretation of the clear provisions in the substantive law, on the basis of rule of construction and restricting the provisions of the statute to the particular rule, would reduce the scope of said provision and defeat the very purpose of legislation on the subject.

(k) Interpretation of statutes---

----Singular number may include the plural number and vice versa.

(l) Punjab Local Government Election Ordinance (V of 2000)---

----S.10---Punjab Local Government Elections Rules, 2000, Preamble--­Punjab Local Government Ordinance, (XIII of 2001), Ss.1, 161 & 196--­Repeal of Punjab Local Government Elections Ordinance, 2000 and Rules thereunder by Punjab Local Government Ordinance, 2001---Effect---Election of Members. of a Union Council including Nazim and Naib Nazim on vacant seats --- Procedure---Principles.

The perusal of provisions of sections .1 and 196 of the Punjab Local Government Ordinance, 2001 would show that after repeal of Local Government Ordinance, 1979 and Local Government Elections Ordinance, 2000, the Rules, Regulations and By-laws made under Local Government Ordinance, 1979. so far the same were not inconsistent with the provisions of repealing Ordinance, would continue until amended or varied. The repealing Ordinance has not expressly saved the Local Government Elections Rules, 2000 framed under Local Government Elections Ordinance, 2000 but it has been specifically provided in subsection (3) of section 196 of this Ordinance that all Nazims, Naib Nazims and Members elected under the Ordinance, 2000 would be deemed to have been elected under the repealing Ordinances and after repeal of Ordinance 2000, a Member, Nazim or Naib Nazim as the case may be, could be removed from the office in the manner as provided in section 161 of the repealing Ordinance. The election of the Members of a Union Council including Nazim and Naib Nazim, as provided in sections 10 and 148 of the Punjab and Sindh Local Government Elections Ordinances, 2000 and Local Government Ordinances, 2001 respectively must be held on the basis of adult franchise and separate electorate.

The Punjab and Sindh Local Government Elections Ordinances, 2000 on repeal by the Punjab and Sindh Local Government Ordinances, 2001 were re-enacted and consequently the Local Government Elections Rules, 2000 framed thereunder so far the same were not inconsistent to the subsequent Ordinance despite repeal, would remain operative and continue by virtue of section 24 of the General Clauses Act, 1897, till the said rules are not superseded by framing fresh rules under the repealing Ordinance and consequently, the election petition and other proceedings pending under the repealed Ordinance would be decided under the repealed law. However, the election for the vacant seats of Nazim and Naib Nazim in the local bodies as provided in section 154 of the repealing Ordinance, would be held on the basis of joint candidacy except in a case of casual vacancy for which the election would be contested in individual, capacity. The similar provisions relating to the joint candidacy in the earlier Ordinance had been inserted in the subsequent Ordinance, therefore, notwithstanding the repeal, the rules framed under the repealed. Ordinance, in absence of fresh rules, would remain operative and consequently, on the basis of joint responsibility and doctrine of sinker, the invalid nomination of any one candidate in the panel, would invalidate the nomination of both the candidates in the said panel and in the light of rule that in case of rejection of nomination of either of Nazim or a Naib Nazim as joint candidates, the nomination as a whole for both the joint candidates shall stand rejected, their election as a whole must be declared void. The validity of nomination of the joint candidates is determined on the nomination day and if a candidate associates himself with a candidate who was suffering from a disqualification tp contest the election on the nomination day or his nomination was invalid, the nomination of both would become invalid and both as joint candidates would lose the right to contest the election. The candidate- by joining himself with a candidate who lacked qualification to contest the election, could not avoid the consequence of the disqualification created for himself. The invalid nomination of any one candidate in the panel, would make the nomination of the other candidate in the said panel invalid and the. Tribunal would be competent to declare the election of both the candidates void. The invalid nomination of a candidate on the nomination day, would not subsequently be validated by mere change of his status from the candidate into returned candidate, therefore, the disqualification of a candidate on the nomination day, on the basis of which the nomination of the joint candidates as a whole could be rejected, would necessarily bring the consequences of the election of joint candidates as a whole void, therefore, the interpretation that rule of rejection of nomination as a whole of the joint candidates, .would not be invocable for declaring the election ,of the joint candidate as a whole void in the election petition, would be against the wisdom of law and would make the rule meaningless. The idea behind the concept of joint candidature was to develop better understanding and good working relationship between Nazim and Naib Nazim of the union council for effective representation. The development of the spirit of joint responsibility at the local level can certainly prove the best source for promoting the institution of public interest and sound foundation for removing disparity in the Society and can also be helpful in advancing the cause of social justice. The system of joint candidacy being not inconsistent with or in derogation of any provision of the law, would definitely be proved useful for local Government institutions composed of elected representatives.

(m) Interpretation of statutes---

----Repeal of a statute---Effect---Principles---Notwithstanding the repeal of a statute, the previous operation of repealed statute and the proceedings held under the said statute and rules framed thereunder would continue and the legal rights and liabilities incurred thereunder would not be affected.

Notwithstanding the repeal of a statute, the previous operation of repealed statute and the proceedings held under the said statute and rules framed thereunder would continue and the rights and liabilities incurred thereunder would not be affected. It is general principle of law that on repeal of a statute, all rights created and liabilities incurred under the said statute are saved by virtue of section 6 of the General Clauses Act 1897, If the repeal is followed by fresh legislation on the same subject and the new law does not expressly keep alive old rights and liabilities, the same shall not be affected unless it is ascertained by taking into consideration all the provisions of new law that the intention was contrary to the provisions on a matter in the old law. In case an old statute is "repealed and a new statute takes its place, the actions under the repealed statute continue except the procedural matters, therefore, the mere absence of a provision in the repealing statute similar to. that contained in the repealed statute, is not suggestive of the intention of the Legislature to extinguish the liabilities incurred under the old statute and if the new statute does not expressly or by implication disturb the existing rights and liabilities, the same shall remain operative. In a nutshell, in case of repeal of a law, the repeal shall not affect any right or liability or affect any legal proceeding or remedy and the same shall be continued and enforced as if the law had not been repealed. The general law is that the rules, regulations and by-laws framed under a repealed statute, if not specifically saved under the new statute, would stand repealed with the repeal of statute under which the same were framed but if a new statute on the same subject takes place without specifically repealing the rules and regulations framed under the old statute or the substitution of such rules and regulations by the new rules and regulations, the same shall remain in force under the new statute until are replaced and shall be deemed to have been made or issued under the provisions of new statute.

(n) Punjab Local Government Ordinance (XIII of 2001)---

----S.154---Punjab Local Government Elections Ordinance (V of 2000), S.16---Joint candidacy---Election of Nazim and Naib Nazim---Rejection of nomination papers of a candidate of Nazim or Naib Nazim in the panel---Declaration of election as a. whole void---Principles.

The provisions of section 16 of the Local Government Elections Ordinance, 2000 and 154, Local Government Ordinance, 2001 respectively read with Rules framed thereunder in an unequivocal term provide that the election for the seat of Nazim and Naib Nazim in the local bodies must be contested on the basis of joint candidacy and the rejection of nomination papers of a candidate of Nazim or Naib Nazim in the panel would be rejection of nomination papers, as a whole, of the joint candidates and in the light of .above rule the election of the joint candidates could be declared as a whole void by the tribunal on any of the following grounds-

(a) that their nomination was invalid.

(b) any one of the-joint candidates was not on the nomination day, qualified or was disqualified from being elected;

(c) that election was procured through corrupt and illegal process.

(o) Punjab Local Government Elections Ordinance (V of 2000)---

----S.18-A---Punjab Local Government Elections Rules, 2000, R. 81---Punjab Local Government Ordinance (XIII of 2001), Ss. 156 & 148-­Election to vacant/casual vacancy of Nazim or Naib Nazim---Procedure-­-Expression "casual"---Connotation---Vacancy occurring in consequence of the declaring of election void by Election Tribunal shall be filled on the basis of joint candidacy whereas the casual vacancy shall be filled through an election to be contested in, the individual , capacity--­Principles---Seats vacated by the joint candidates as a result of declaring the election void having beenexcluded from .the purview of the rule relating to the filling, of the casual vacancy through the election in individual capacity would-indicate that the responsibility of Nazim or Naib Nazim as joint candidates would not come to an end after election arid in consequence of the defect of invalid nomination of joint candidates would not come to an end after the election and in consequence of the defect of invalid nomination of joint candidates, they must lose the seats jointly on any ground as .envisaged in R.81, Punjab: Local Government Elections Rules, 2000 and the election for the vacant seat must be held on the basis of joint candidacy.

The casual vacancy in terms of section 18-A, Punjab Local Government Election Ordinance, 2000 would mean a vacancy which becomes vacant subsequent to the election as a result, of removal, resignation, death or any other unforeseen reason but it does not include a vacancy which occurs in consequence of the declaring election of a returned candidate void by Election Tribunal in an election petition. The `casual' means accidental, unforeseen or by chance but occurring of a vacancy in the process of law is not unforeseen, accidental or by chance, therefore, such vacancy would not fall within the definition of casual vacancy. Obviously, in case of casual vacancy, the election shall be held for the said vacancy only and shall be contested in an individual capacity. The procedure for election to, a vacant seat under Punjab and Sindh Local Government Ordinances, 2001, by virtue of which Punjab and Sindh Local Government Election Ordinances, 2000 were repealed, is provided in section 156.

The pre-election disqualification to contest the election and become a Member, Nazim or Naib Nazim in the union council is different to the post-election disability to hold an elective office and if the seat of a Nazim or Naib Nazim subsequent to an election, becomes vacant due to an unforeseen event such as removal, resignation or death, the vacant seat shall be filled in the manner as provided in section 18-A of the. Punjab and Sindh Local Government Elections Ordinance, 2000 and section 156 read with section 148 of the Local Government Ordinances, 2001. In the light of clear distinction in the two type of vacancies, the vacancy occurring in consequence of the declaring of election void by the Tribunal in the election petition shall be filled on the basis of joint candidacy whereas the casual vacancy shall be filled through an election to be contested in the individual capacity. The seat vacated by the joint candidates as a result of an order passed by the Tribunal in an election petition is not due to an unforeseen event or accidental or by chance, therefore, the same must not be equated with the vacancy which occurs due to death, resignation or removal of returned candidate for a post-election disability. The expression casual' has not been defined in the Local Government Elections Ordinance, .2.000 and the Rules framed thereunder or in Local Government Ordinance, 2001, therefore, it must be construed in the plain and ordinary sense. In the dictionary meaning, the wordcasual' is defined, "by chance or accidental, coming at uncertain time and not to be settled". It suggests no promises, object and intention or an event which is within the expectation or can be foreseen to be described as casual and a thing which is foreseen and anticipated; cannot be regarded as, casual even if it is not likely to occur again. The casual vacancy occurs during the term of a local council as a result of resignation, death or removal of a Member, Nazim or Naib Nazim for a post-election disability to continue in the office, whereas the vacancy occurring in consequence to the declaring of election of a returned candidate void would be deemed to have remained unfilled in the election. The casual vacancy is a vacancy which arises otherwise than by afflux of time and a vacancy occurring due to the declaration of an election void would not come within the scope of `otherwise' and is not as such a casual vacancy in terms of section 18-A and section 154 of the Local Government Elections Ordinances, 2000 and 2001 respectively. The seats vacated by the joint candidates as a result of declaring the election void having been excluded from the purview of the rule relating to the filling of the casual vacancy through the election in individual, capacity would indicate that the responsibility of Nazim or Naib Nazim as joint candidates would not come to an end after the election and in consequence of the defect of invalid nomination of joint candidates, they must lose the seats jointly on any ground as envisaged in Rules 81 and 82 of Punjab and Sindh Local Government Elections Rules, 2000 and the election for the vacant seats must be held on the basis of joint candidacy.

(p) Punjab Local Government Elections Rules, 2000---

----R.81---Declaration of election of a returned candidate as void on the ground of any defect in his candidature by the Election Tribunal-­Whether the votes given, to a candidate who was suffering from a disqualification should be treated as being simply wasted or thrown away---Held; votes given to the returned candidate without notice of the disqualification which was not notorious could not be thrown away for the benefit of next -candidate at the cost of defranchising the electors and in such circumstances fresh election was a must--­Principles---Petitioner in the election petition or any of the respondents seeking, declaration to be the successful candidate through recriminatory, position should satisfy the considerations which were relevant for such declaration and the-Election Tribunal must decide such petitions in the light of evidence led by the parties in the election petition---Legality of the order relating to the declaration of election of returned candidates as void and the grant or refusal of consequential relief claimed in each case, stated.

The election of a candidate if is declared void on the ground of any defect in his candidature the votes cast in his favour may or may not be treated as thrown, away votes. This rule. is that if the voters knowingly choose to vote for a person who was disqualified to contest the election and his disqualification was also notorious, the voters by not voting for another candidate have thrown away their votes but if the disqualification of a candidate was not known to-the voters or it was, depending upon any defect involving adjudication of questions of facts and law, the votes cast in his favour cannot be thrown away and the voters cannot be deprived of their right of vote. In such cases the Election Tribunal shall not exercise discretion for declaring the next candidate securing highest votes as elected. The notoriety of the disqualification of a candidate cannot be pleaded unless the factum of its being widely known is proved through evidence direct or circumstantial and the knowledge of such notoriety could be attributed to the electors. The principle of notoriety cannot be invoked in a, case in which the disqualification of a candidate was not notorious at the time of polling or escaped notice of the Returning Officer during the process of scrutiny of the nomination papers and the electors, despite being aware of such disqualification in the light of decision of acceptance of nomination papers of the candidate formed) opinion that he was qualified to contest the election, were justified in exercising their right of vote in his favour. The essential requirement for the application of this rule is that disqualification must be established on record to be notorious through the positive evidence and it must be known to the electors or it must be of the nature which may give rise to the presumption of notoriety but if the above elements are not satisfied, the electors cannot be said to have thrown away their votes by casting votes in favour of a disqualified person and in such a case declaring the next candidate, securing highest votes would amount to defranchise the electors for no fault on their, part. The Tribunal in the election petition after declaring election-of a returned candidate void may declare the next candidate securing highest votes in the election as elected or direct for holding fresh election and the Tribunal must exercise said power in the light of settled law according to which if a returned candidate is unseated in the election petition for a disqualification which was not known to the voters and was also not notorious or which would be depending on legal argument and, adjudication of complicated and controversial questions of facts, the declaring of next candidate securing higher position as elected in such a case, would amount to defranchise the electors for no fault of theirs and thus the next candidate would not be declared as elected if the following essential elements existed:---

(a) the disqualification was not found to have been existed by the Returning Officer and the electors even it would have right to act upon the decision of the legal forum;

(b) the disqualification was not proved to be notorious and known to the electors;

(c) the disqualification was not of such a nature which .may give rise to the presumption of notoriety.

Votes given for a candidate who is disqualified may, in certain circumstances, be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded in some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown: If, however the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good. If after deducting the votes given to such candidate he remains in a majority, the minority candidate cannot be seated and there must be fresh election.

Voters casting their votes for a candidate who is disqualified under the law, the disqualification being founded on some positive and definite fact existing and established at the time of the poll same being sufficiently notorious to saddle the electors with knowledge thereof are deemed to throw away their votes and to mean not to vote for any one for that office as well as to assent to the election of the opposing and qualified candidate. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then even though the candidate may be unseated the seat cannot be given to the candidate with the next highest number of votes and the election witness has to be declared void as a whole.

Votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of willful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit. If, however the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes.

The answer to the question "as to whether the votes given to a candidate who was suffering from a disqualification should be treated as being simply wasted or thrown away" is that votes given to the returned candidate without notice of the disqualification which was not notorious cannot be thrown away for the benefit of next candidate at the cost of de­franchising the electors and .in such circumstances fresh election is a must. There can be no departure from the rule that the petitioner in the election petition or any of the respondents seeking declaration to be the successful candidate through recriminatory petition should satisfy the considerations which are relevant for such declaration, and the Tribunal must decide such petitions in light of evidence led by the parties in the election petition.

The appellant was not himself personally suffering from any disqualification but lost the seat in consequence of the disqualification of his joint candidate in the panel. The Tribunal having found the matriculation certificate produced by the joint candidate of appellant not genuine, declared him disqualified to contest the election. This finding of the Tribunal on the question of fact was upheld by the High Court and also by the. Supreme Court, therefore, the same would not call for interference in the appeal. However, the disqualification of a candidate would neither be deemed to be in the knowledge of the voters nor any notoriety was attached to it to attract the rule of thrown away votes cast to him and deprive the voters from their right of franchise, therefore, the next candidate securing the highest votes in run off election could not be declared as elected.

In the present case the appellant being suffering from disqualification of being wilful bank defaulter was unseated by the Tribunal: The appellant having obtained a loan facility from bank, failed to discharge his liability as per schedule of re-payment with the result that bank filed a suit against him for recovery of loan in which the Court, seized of the matter, after proper adjudication of the dispute, passed a decree against the appellant. The Election Tribunal in the election petition on the basis of the said decree while holding him wilful defaulter, declared that he was not qualified to contest the election and while unseating him declared the next candidate securing highest votes as elected. The verdict given by the Tribunal against the appellant of his being wilful defaulter was upheld: by the High Court in the Constitution petition and the Supreme Court took no exception to the said declaration. However, the disqualification of the appellant being depending upon legal verdict given by the Tribunal and the High Court and the same would neither be in the knowledge of voters nor was found notorious at the time of polling so as to justify the claim of next candidate to be declared elected. The above disqualification of the appellant was not found to have been in existence during the scrutiny of the nomination papers and thus the essential requirement for the application of' the principle of thrown away votes being missing in the present case, the declaration in favour of next candidate securing the highest- votes to be elected would definitely defeat the right of franchise of electors.

The appellant in the present case was held disqualified by the Tribunal in the election petition on the ground that assets being possessed by him were found inconsistent with the declaration of assets possessed by him alongwith the nomination papers. The above disqualification of the appellant escaped the notice of Returning Officer during the scrutiny of the nomination papers and-the Tribunal in the light of oral and documentary evidence based on the revenue record, having found the assets submitted by him with nomination papers, declared him disqualified to contest the election. The fact relating to the inconsistency of the assets of appellant with the declaration of assets was scrutinized by the High Court in the light of evidence brought on record and upheld the finding of the Tribunal on the question of concealment of assets in the declaration. The High Court after thorough analysis of the evidence gave verdict on the pure question of fact and the Supreme Court was not supposed to interfere in the finding of facts through reappraisal of evidence. The concealment of assets possessed by a candidate in his declaration of assets was a disqualification under section 14(1) of Punjab Local Government Elections Ordinance, 2000 but such a disqualification being in exclusive knowledge of candidate, would not be known to the voters, therefore, the votes cast in his favour cannot be thrown away at the cost of right of franchise of the voters.

In the present case the Tribunal after declaring the election of appellants void, declared the panel of next candidate securing highest votes as elected which was upheld by the High Court but the Supreme Court while maintaining the judgment .to the extent of declaration of the election of appellants void, set aside the order of declaring the next candidate as elected and directed that fresh election shall be held to fill the vacant seats in the following terms:-

(i) The order of declaring the election of appellant void would not call for any interference and was upheld.

(ii) The order of declaring the panel of next candidates securing highest votes as elected being not maintainable, was set aside. The vacant seats shall be filled through fresh election.

Rashid Ahmed v. Barkat Ali PLD 1968 SC 30; Halspury's Law of England 3rd Edn., Vol..14; Muhammad Afzal Khan v. Ch. Marlzoor Ellahi PLD 1975 SC 1296 and Saeed Hassan v. Asghar Ali PLD 1976 SC 6 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellant/Respondent No.4 (in C.A. No.583 of 2002).

Syed Najamul Ejassan Kazmi., Advocate Supreme Court for Appellant/Respondent (in C.As. Nos.583 and 592 of 2002).

Tariq Mahmood Khokhar, Additional Advocate-General, Punjab on Court's Notice.

Kamal Azfar, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. No.751 of 2002).

Abdul Hafeez Pirzada, Senior Advocate Supreme Coat and M. A. Zaidi, Advocate-on-Record for Respondents (in C.A. No.751 of 2002).

Amir Alam Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellants (in C.A. No1191 of 2002).

Ehsanul Haq Ch., Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent (in C.A. No1.191 of 2002).

Dates of hearing: 13th and 14th November, 2002.

2003 S C M R 1658

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUNAWAR HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.619-L of 2001, decided on 1st January, 2003.

(On appeal from the judgment, dated 7-8-2001, of Lahore High Court, Lahore passed in Criminal Appeal No.446 of 1994).

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

----Ss. 409/468/471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Criminal breach of trust by public servant---Accused being school teacher was handed over cheque for a sum of Rs.98,400 intended to be paid as scholarship to deserving students---Accused opened Bank account rind encashed the cheque---Accused was convicted by Trial Court which was maintained by High Court---Plea raised by the accused was that no entrustment of the amount was ever made to him and no conviction could have been awarded under S.409, P.P.C.---Validity--­Accused had complete dominion over the amount in question which was deposited and withdrawn by him---Loss accrued to Government because by drawing the amount in question, the Government was deprived of the use of the same and thus the accused could not be absolved from criminal liability---Conclusion drawn by Trial Court and High Court being well based and in accordance with law and settled norms of justice did not call for any interference by Supreme Court---Leave to appeal was refused.

Shamsuddin Ahmed v. The State 1970 SCMR 808 and The State v. Abu Raza PLD 1959 SC (Pak.) 309 ref.

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

----Art. 185(3)---Constitutional jurisdiction of Supreme, Court---New plea, raising of---Validity--Plea not raised before High Court during hearing of appeal cannot be agitated before Supreme Court.

Khairati v. Aleem-ud-Din PLD 1973 SC 295; Ghualm Muhammad v. Abdul Qadir Khan PLD 1983 SC 68, Neelam Mawaz v. The State PLD 1991 SC 640; Mad Ajab v. Awal Badshah 1984 SCMR 440; Mairaj Sons v. United Bank Limited 1985 SCMR 987; Muhammad Ahmed v. Aziz Begum 1985 SCMR 1962; Sardaro v. Nazran Begum PLD 1985 SC 274; Muhammad Idrees v. Safia Begum 1986 SCMR 795; Muhammad Urfan v. N.-W.F.P. PLD 1984 SC 253; Gul Zairn v. Faizullah 1979 SCMR 501; S.B. Insurance Employees' Union v. Sindh Labour Court 1975 SCMR 49; Nisar Ahmad v. Fazal Muhammad 1975 SCMR 190; Khalid Sharif v. The State 1975 SCMR 178; Begum Zahoorul Haq v. Muhammad Younus 1985 SCMR 1657; Muhammad Ibrahim v. Allah Bakhsh 1968 SCMR 143; Ghualm Haider v. Settlement Commissioner 1972 SCMR 559 and West Pak Transport Co. v. Transport Appellate Authority PLD 1965 SC 248 ref.

S.M. Nazim, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 1st January, 2003.

2003 S C M R 1662

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Munir A. Sheikh, JJ

ALTAF AHMED KHAN and another---Petitioners

Versus

MUHAMMAD HAYAT and 2 others---Respondents

Civil Petitions for Leave to Appeal Nos.302-K, 303-K and 304-K of 2001, decided on 2nd August, 2001.

(On appeal from the judgment, dated 21-11-2000 of the High Court of Sindh, Circuit Bench at Hyderabad in F.R.As. Nos. 69, 70 and 71 of 1998)

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

----Ss. 15 & 18---Constitution of Pakistan (1973), Art. 185(3)—­Ejectment of tenant---Status of landlord---Agreement to sell. Execution of---Petitioner who was prospective buyer and had only agreement to sell executed in his favour, filed ejectment petition---Rent Controller as well as High Court declined to eject tenants on the ground that the petitioner was not landlord and requirements of S.18 of Sindh Rented Premises Ordinance, 1979, were not fulfilled---Validity---High Court had rightly found that the petitioner was only a prospective purchaser and, therefore, no relationship of landlord and tenant existed between the parties--­Supreme Court observed that the petitioner might file fresh ejectment petition subject to satisfaction of Rent Controller regarding the relationship of landlord and tenant between the parties---Petition for leave to appeal was disposed of accordingly.

A. Rahim Kazi, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd August, 2001.

2003 S C M R 1664

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza, JJ

MUKHTAR AHMAD---Petitioner

Versus

Mst. RASHEEDA BIBI and another---Respondents

Civil Petition for Leave to Appeal No. 1551-L of 2001, decided on 17th June, 2002.

(On appeal from the judgment, dated 26-4-2001 of the Lahore High Court, Lahore in Civil Revision No.885 of 2001).

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

----S. 4---Constitution of Pakistan (1973), Art. 185(3)---Inheritance--­Share of predeceased son---Plaintiff being the only daughter of pre­deceased son, claimed her share in property of her grandfather, under the provisions of S.4 of Muslim Family Laws Ordinance, 1961---All the Courts below concurrently granted the share of predeceased son to the plaintiff---Validity---Plaintiff being the only daughter of the predeceased son would inherit ½ share from the property of her father while the remaining share of father of plaintiff (predeceased son) would go to other collateral---Supreme Court reduced the share of the plaintiff to the extent of ½ of the share of the father of the plaintiff and declined to interfere with the concurrent findings of facts by the Courts below---Petition for leave to appeal was converted into appeal and the same was allowed accordingly.

Abdul Wahid Choudhary, Advocate Supreme Court for Petitioner.

Malik Sher Bahadur, Advocate Supreme Court for Respondents.

Date of hearing: 17th June, 2002.

2003 S C M R 1667

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan and Hamid Ali Mirza, JJ

MUHAMMAD ASLAM and others---Petitioners

Versus

HANIF ABDULLAH & BROTHERS through Proprietor ---Respondent

Civil Petition No.558-K of 2000, decided on 22nd February, 2001.

(On appeal from the judgment, dated 15th September, 2000 of High Court of Sindh at Karachi in F.R.A. No.274 of 1996).

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

----S. 13---Ejectment of tenant---Payment of Pagri---Object and scope--­Practice prevalent in old areas of Karachi City is that shops and apartments change hands from one tenant to another on payment of Pagri subject to change of rent receipt by landlord in the name of incoming tenant---Landlord only gets fixed percentage of commission on Pagri amount for the change of rent receipt---In case no change in rent receipt is made by landlord, the incoming tenant in respect of the premises would not pay Pagri amount to the original tenant who in return would not hand over the possession to the proposed incoming tenant and landlord would not in any case put him into possession of premises to enable him to use the premises for his personal, requirement consequently incoming tenant would not be put into unauthorized possession of the premises by the original tenant to entitle the landlord to sue the new occupant of the premises for sub-letting.

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

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Landlord was jobless who was not carrying on any business and the shop in question was situated in market of confectionary---Rent Controller allowed ejectment petition and eviction order was passed but High Court set aside the order of eviction--­Validity---Shop was situated in the market of. confectionary and was suitable for the business---Personal requirement of landlord had been proved to be in good faith and the requirement was not mala fide--­Tenant .had failed to produce reliable and satisfactory evidence to rebut the evidence of landlord---Supreme Court converted petition for leave to appeal into appeal, set aside the judgment passed by High Court and tenant was evicted from the premises---Appeal was allowed.

Mst. Toheed Khanam v. Muhammad Shamshad 1980 SCMR 593; Haroon Kassam v. Azam Suleman Madha PLD 1990 SC 394; Abid Masood v. Dilshad Khan 1995 SCMR 146 and Shahid Nadeem v. Muhammad Shafi 2000 SCMR 542 ref.

K. B. Bhutto, Advocate Supreme Court and Ahmadullah Faruqi, Advocate-on-Record for Petitioners.

Suleman Kassam, Advocate Supreme Court for Respondents.

Date of hearing: 22nd February, 2001.

2003 S C M R 1671

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ail Mirza, JJ

SARWAR HASAN KHAN---Petitioner

Versus

MUHAMMAD AFZAL AKHTAR---Respondent

Civil Petition for Leave to Appeal No. 172-K of 2001, decided on 21st June, 2002.

(On appeal from the judgment/order, dated 23-1-2001, of the High Court of Sindh, Karachi, passed in F.R.A. No.499 of 1995).

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

----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant---Leave to appeal was granted by Supreme Court to consider, whether the High Court appreciated the law as well as evidence on record, whether tenant was defaulter in payment of rent of demised premises and whether the order of High Court was maintainable.

Suleman Habiullah, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Date of hearing: 21st June, 2001.

2003 S C M R 1672

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

SECRETARY TO GOVERNMENT OF PAUNJAB, EXCISE AND TAXATION DEPARTMENT, LAHORE and others---Petitioners

Versus

KHALID SIDDIQUE---Respondent

Civil Petition No.3311-L of 2002, decided on 16th April, 2003.

(On appeal from the judgment, dated 28-5-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 174 of 2002).

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

----Art. 212(3)---Supreme Court Rules, 1980, O. XIII, R.1---Petition barred by 34 days ---Condonation of delay---Plea of petitioner not to have obtained certified copy in time, held, could not be considered being devoid of merit---Supreme Court dismissed petition as barred by time.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999-----

----R. 4(a)---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan (1973), Art. 212(3)---Minor penalty of stoppage of two annual increments---Use of objectionable and unethical language by civil servant in letter addressed to his senior officer---Service Tribunal set aside punishment after finding nothing unethical or objectionable in such letters, which with reference to taxation contained only proposals for elimination of corruption in registration on basis of forged document---Validity---Department could not substantiate such accusation against the civil servant by leading cogent and concrete evidence---Findings of Tribunal being well based did not warrant any interference---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave.

Muhammad Riaz Lone, Advocate Supreme Court and Rao Muhammad Yusuf, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 16th April, 2003.

2003 S C M R 1674

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and others---Petitioners

Versus

IRSHAD AHMAD and others---Respondents

Civil Petitions Nos.2990-L to 2992-L of 2001, decided on 24th March, 2003.

(On appeal from the judgment dated 28-6-2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos. 1271, 1273 and 1192 of 2000)

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr.4, 6 & 7---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan (1973), Art. 212(3)---Removal from service--­Re-instatement, petition for---Disciplinary proceedings were initiated against respondents /civil servants on allegation that the civil servant (main accused) appointed lady teachers at the time when there was ban on such appointments and that all such appointments were made without approval of Departmental Recruitment Committee and that other accused/respondents had facilitated said false and vague appointments--­Appointments were made by the said main accused who was ex-Deputy District Education Officer and respondents/civil servants had absolutely no say being little fry in Education Department---Main accused had been awarded minor penalty in reduction in pay despite played by her, but respondents were awarded major penalty from service---Allegations levelled against respondents sketchy, ambiguous and without any evidence---No iota of evidence was available to show as to how respondents had facilitated bogus appointments and who was the beneficiary---Respondents were removed from service in an arbitrary and whimsical manner which was a classic example of abuse and misuse of authority---Service Tribunal, had rightly set aside order of dismissal passed against respondents by the Authority---Conclusion arrived at by Service Tribunal which was strictly in accordance with law, settled norms of justice, and being well based could not be interfered with---Petition for leave to appeal before Supreme Court against judgment of Service Tribunal being merit less, was dismissed especially when no substantial question of law of public importance arose.

Miss Salma Malik, Assistant A.-G., Punjab and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in all Cases).

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent (in all Cases).

Date of hearing: 24th March, 2003.

2003 S C M R 1678

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD AFZAL and 2 others-----Appellants